Lorance v. AT&T Technologies, Inc. Petitions and Briefs

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August 21, 1989
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Collection of court filings, petitions and briefs, related to the case.
Topic
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Brief Collection, LDF Court Filings. Lorance v. AT&T Technologies, Inc. Petitions and Briefs, 1989. ccc28f9d-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/84fe93a5-b558-4ecb-af62-0010e68d8c5e/lorance-v-att-technologies-inc-petitions-and-briefs. Accessed November 23, 2025.

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The Supreme Court of the united States

NAACP LEGAL DEFENSE FUND
LI3RARY

99 HUDSON STREET 
NEW YORK, N. Y. 10073 

Patricia A. Lorance, et al.

versus ( 87- 1428)

AT& T Technologies, Inc., et al

Petitions and Briefs

Labor Law Series

f  Volume 22, No. 13 
1988/89 Term of Court

Law Reprints



TABLE OF CONTENTS

Patricia A. Lorance, et al.
versus (87-1428)
AT&T Technologies, Inc., et al.

PAGE
Docket Sheet. . . . . . . . . . . . . . . . . . . .   .ii
Petition for Writ of Certiorari. . . . .   1
Opposition. . . . . . . . . . . . . . . . . . . . . . . . ....55
Reply Brief of Petitioners. . . . . . . . . . . . .   71
AMICUS CURIAE BRIEF ON JURISDICTION
Equal Employment Opportunity Commission. . . . . . . . 91
BRIEFS ON THE MERITS
Petitioner. . . . . .       115
Respondent. . . . . . . . . . .   195
Reply Brief of Petitioners. . . . . . . . . . . . . . . . 195
AMICI CURIAE BRIEFS ON THE MERITS
Equal Employment Advisory Council. . . . . . . . . . . 319
Equal Employment Opportunity Commission. . . . . . . . 351



DOCKET SHEET

No. 87-1428-CFX Titles
StatUB! GRANTED

Docketed! Court!
February 26, 1988

Counsel
Counsel

Patricia A. Lorance, et al., Petitioners 
v.ATST Technologies, Inc., et al.
United States Court of Appeals 
for the Seventh Circuit
for petitioner! Goldstein,Barry L.
for respondent! Jackson,Charles C., Feinberg,Stephen 
J., Lee,Rex E.
NOTE: 1/19/88 ext. until 2/27/88 by Stevens, J.- 
cited

Entry Date

1 Jan 15

2 Feb 26
4 Mar 21
5 Apr 25
7 Apr 25
6 Apr 27
8 May 5
9 May 16
10 Sep 7
11 Sep 14
12 Oct 11
13 Nov 9
14 Nov 10
1 6 Nov 21
17 Dec 7
18 Dec 9
19 Dec 9
20 Dec 20

22 Dec 21
23 Jan 9

24 Jan 19
25 Jan 2 6
26 Jan 26
27 Feb 3
28 Feb 7

29 Feb 8
30 Feb 9
31 Mar 7
32 Mar 20

Note Proceedings and Orders

1988 Application for extension of time to file petition and
order granting same until February 27, 1988 (Stevens, 
January 19, 1988).

1988 G Petition for writ of certiorari filed.
1988 Order extending time to file response to petition until

April 27, 1988.
1988 Brief of respondent AT&T Technologies, Inc. in opposition 

filed.
1988 Waiver of right of respondent AT&T Technologies, Inc. to 

respond filed.
1988 DISTRIBUTED. Hay 12, 1988
1988 X Reply brief of petitioners Patricia T.orance, et al. filed. 
1988 P The Solicitor General is invited to file a brief in this

case expressing the views of the United States.
1988 Brief amicus curiae of United States and EEOC filed.
1988 REDISTRIBUTED. October 7, 1 9 RR
1988 Petition GRANTED.A****************************************************4*'
1988

*

1988 *
1988
1988 
1988 
1988 
1988 G

1988
1989

1989
1989 
1989 
1989 
1989 G

1989
1989
1989 X 
1989

Record filed.
Certified copy of C. A. proceedings received.
Record filed.
Certified copy of original record received.
Order extending time to file brief of petitioner on the 
merits until December 9, 1988.

Brief amicus curiae of United States filed.
Joint appendix filed.Brief of petitioners Patricia Lorance, et al. filed.

Motion of the Solicitor General for leave to participati 
in oral argument as amicus curiae and for divided 
argument filed.Order extending time to file brief of respondent on the 
merits until January 23, 1989.
Motion of the Solicitor General for leave to participate 
in oral argument as amicus curiae and for divided 
argument GRANTED.
Order further extending time to file brief of responded 
on the merits until January 26, 1989.

Brief amicus curiae of Equal Employment Advisory Council 
Brief of respondents AT&T, et al. filed.

SET FOR ARGUMENT MONDAY, MARCH 20, 1989. (1ST CASE.) 
Application (A88-627) to extend the time to file a reply

brief from February 25, 1989 to March 7, 1989, submltte 
to Justice Stevens.
CIRCULATED.Application (A88-627) granted by Justice Stevens 
extending the time to file until March 7, 1989.

Reply brief of petitioners Patricia Lorance, et al. filed. 
ARGUED.

-ii -



N ot 87-1428

I n T h e

Supreme Court of tfje tHm'tcb states
O c t o b e r  T e r m , 1987

P atricia A. Lorance, et a l ,

v.
Petitioners,

AT&T Technologies, Inc., et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT

J ulius LeVonne Chambers 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street
Sixteenth Floor
New York, New York 10013

Barry Goldstein*
Sheila Y. Thomas 

NAACP Legal Defense and 
Educational Fund, Inc. 

806 15th Street, N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278

Bridget Arimond 
14 West Erie Street 
Chicago, Illinois 60610

Attorneys for Petitioners
Counsel of Record



QUESTION PRESENT ED

Should this Court grant certiorari 
to resolve a conflict among the circuits 
as to whether an employee must file a 
charge under Title VII of the Civil 
Rights Act of 1964 within 300 days of 
m e r e l y  b e c o m i n g  s u b j e c t  to an 
intentionally discriminatory seniority 
system even though the system has not yet 
been actually applied to disadvantage the 
employee, or whether a charge is timely 
if filed within 300 days of a job 
demotion or other adverse action caused 
by the operation of the intentionally 
discriminatory system?

- i

2



PARTIES IN THE COURT BELOW

The parties to the proceedings below 
were the petitioners Patricia A. Lorance, 
Janice M. King, and Carol S. Bueschen, 
who were appellants-plaintiffs in the 
lower courts, and AT&T Technologies, 
Inc., and Local 1942, International 
Brotherhood of Electrical Workers, AFL- 
CIO, who were appellees-defendants in the 
lower courts.

-ii-

3



Page

QUESTION PRESENTED ........  • • 1
PARTIES IN THE COURT BELOW . . .  ii
TABLE OF CONTENTS..............  H i
TABLE OF AUTHORITIES..........  v
OPINIONS B E L O W ............ • . • 2
JURISDICTION ..........  . . . .  2
STATUTORY PROVISIONS INVOLVED . . 3
STATEMENT OF THE C A S E ..........  5
REASONS FOR GRANTING THE WRIT . . 13
I. CERTIORARI SHOULD BE GRANTED 

TO RESOLVE A CONFLICT BETWEEN 
THE SEVENTH CIRCUIT AND 
OTHER CIRCUITS AS TO WHETHER 
THE APPLICATION OF A 
DISCRIMINATORY SENIORITY 
SYSTEM CREATES AN ACTIONABLE 
WRONG FROM WHICH AN INJURED 
WORKER MAY FILE A TIMELY 
ADMINISTRATIVE CHARGE . . .  13

TABLE OF CONTENTS

ill



II. CERTIORARI SHOULD BE
GRANTED BECAUSE THE SEVENTH 
CIRCUIT'S DECISION 
CONFLICTS WITH THIS 
COURT'S STANDARD AS TO 
WHETHER THE OPERATION OF 
A DISCRIMINATORY PRACTICE 
CAUSES AN ACTIONABLE 
WRONG OR RAISES AN 
IMPORTANT QUESTION AS 
TO THE APPLICATION OF 
FAIR EMPLOYMENT LAW . . .

CONCLUSION.......... ..

Appendix*
Order of the Court of
Appeals for the
Seventh Circuit ..........
Opinion, Court of
Appeals for the
Seventh Circuit . . . . . .
Memorandum Opinion and 
Order, United States 
District Court for the 
Northern District of 
Illinois ..................
Report and Recommendation, 
United States Magistrate . .

iv

Ed. Note: * Denotes material not reprinted herein.

28
43

la

3a

12a

34a

5



TABLE OF AUTHORITIES

Case: Page
Abrams v. Baylor College of
Medicine, 805 F.2d 528
(5th Clr . 1986)........ .. . 21 , 22
Alexander v. Gardner-Denver 
Co., 415 U.S. 36 (1974) . . .  39
American Tobacco Co. v.
Patterson, 456 U.S. 63
(1982) . . . . . . . . . . .  19<, 23, 31

40 , 41
Association Against 
Discrimination in Employment,
Inc v. City of Bridgeport,
647 F .2d 256 ( 2d Cir. 1981), 
cert, denied, 455 U.S. 988
(1982) . . . . . . . . . . .  17
Bazemore v. Friday, 106
S. Ct. 3000 (1986) . . . . .  13, 28, 33
Berry v. Board of Supervisors
of L.S.U., 715 F .2d 971
(5th Cir. 1983), cert.
denied, 107 S. Ct. 232
(1986) . . . . . . . . . . .  23
Bruno v. Western Electric 
Co., 829 F .2d 957 (10th Cir.
1987) ........... ............ 17
California Brewers Association
v. Bryant, 444 U.S. 598
(1980) . . . . . . . . . . .  31, 41

v

6



Page
Cook v. Pan American World 
Airways, Inc., 771 F.2d 635 
(2d Cir. 1985), cert, denied,
106 S. Ct. 895 (1986) . . . .  17
Corning Glass Works v.
Brennan, 417 U.S. 188 
( 1974)  ............ .. 34
Crosland v. Charlotte Eye,
Ear and Throat Hospital,
686 F .2d 208 (4th Cir.
1982)................ .. 19
Delaware State College v.
Ricks, 449 U.S. 250 (1982). . 29, 33
Domingo v. New England Fish
Co., 727 F .2d 1429,
modified, 742 F,2d 520
(9th Cir. 1984)............  23
EEOC v. Westinghouse Electric 
Corp., 725 F .2d 211 (1983), 
cert, denied, 469 U.S. 820 
( 1984)    20, 23
Franks v. Bowman 
Transportation Co., 424 U.S.
747 ( 1976) ............ .. . 40, 41
Furr v. AT&T Technologies,
Inc., 824 F .2d 1537 (10th
Cir. 1987) ................  25
Griggs v. Duke Power Co.,
401 U.S. 424 ( 1971 ) .......... 37

Cases

vi

7



Hanover Shoe, Inc. v.
United Shoe Machinery, Inc.,
392 U.S. 481 (1968) . . . . .  34
Havens Realty Corp. v.
Coleman, 455 U.S. 363
(1982) . . . . . . . . . . .  35, 36
Johnson v. General Electric,
No. 87-1752, slip op. (1st
Cir. February 22, 1988) . . . 22, 23, 38
Love v. Pullman Co.,
404 U.S. 522 (1972) . . . . .  36
McKenzie v. Sawyer, 684 
F . 2d 62 (D.C. Cir. 1982) . . 21
Morelock v. NCR Corp., 586 
F . 2d 1096 (6th Cir. 1978), 
cert, denied, 441 U.S. 906 
(1979) . . . . . . . . . . .  18
Nashville Gas Co. v. Satty,
434 U.S. 136 ( 1977)........  31,32
Oscar Mayer & Co. v. Evans,
441 U.S. 750 (1979) . . . . .  17
Patterson v. American
Tobacco Co., 634 F.2d 744
(4th Cir. 1980), vacated
on other grounds, 456
U.S. 63 (1982) . . . . . . .  18
Pullman-Standard Co. v. Swint,
456 U.S. 273 (1982) . . . . .  30, 41

vi i

8



Page
Reed v. Lockheed Aircraft
Cases

Corp., 613 F .2d 757 (9th Cir. 
1980) ...................... 25

Satz v. ITT Financial Corp., 
619 F .2d 738 (8th Cir. 1980). 25

Stoller v. Marsh, 682 F.2d 
971 (D.C. Cir. 1982), cert, 
denied, 460 U.S. 1037 
( 1983)................ .. • 21

Taylor v. Home Insurance 
Company, 777 F.2d 849 
(4th Cir. 1985), cert, 
denied, 106 S. Ct.
2249 (1986).............. .. 19 , 35

Teamsters v. United States, 
431 U.S. 324 (1977) ........ 16 , 41

Trans World Airlines, Inc. 
v. Hardison, 432 U.S. 63 
(1977) ..................  • 40, 41

United Air Lines, Inc. v. 
Evans, 431 U.S. 553 (1977) . 29, 33, 41

Valentino v. United States 
Postal Service, 674 F.2d 56 
(D.C. Cir. 1982) . . . . . . 21

Williams v. Owens-Illinois, 
Inc., 665 F .2d 918 (9th Cir.) 
cert, denied, 459 U.S. 971 
(1982) ................ .. .

t

25

viii

9



Cases Page
Zenith Radio Corp. v.
Hazeltime Research, 401
U.S. 321 (1971) . . . . . . .  34
Zipes v. Trans World Airlines,
Inc., 455 U.S. 385 (1982) . . 17, 36, 41

Constitution,_St a tutes and Rules:
28 U.S.C. § 1254 ( 1 ) . . . .  3
Age Discrimination in 
Employment Act of 1967,
29 U.S.C. §§ 621 et seq. . . 14, 17
Fair Housing Act of 1968,
42 U.S.C. §§ 3601 et seq. . . 34, 35
Title VII of the Civil 
Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. . . . Passim

Other Authorities :
Bureau of Labor Statistics,
U.S. Dept, of Labor Bull.
No. 1425-11, Adm1nistra t i on 
of Seniority (1972) . . . . . 40, 41
Bureau of National Affairs,
EEOC Compliance Manual . . .  27
2 Collective Bargaining 
Negotiations and Cont.
(BNA) ....................... 40

ix

10



P a g e

EEOC Directives Transmittal, 
Number 120.001, November 12,
1987 .......................  26

Equal Employment Opportunity
Commission, 19th Annual
Report (1984 ) ........ .. . . 27
Laycock, Continuing 
Violations, Disparate Impact 
in Compensation, and other 
Title VII Issues, 49 Law 
and Contemp. Probs. 53 
(1986) ................ .. . 34

x

11



No .

IN THE
UNITED STATES SUPREME COURT 

October Term, 1987

PATRICIA A. LORANCE, et a 1 ̂ ,
Petitioners,

vs ,
AT&T TECHNOLOGIES, INC., et al..

Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE SEVENTH CIRCUIT

Petitioners Patricia A. Lorance, et 
ajl . , respectfully pray that a Writ of 
Certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Seventh Circuit entered 
in this proceeding on August $9, 1987.

12



2
OPINIONS BELOW

The opinion of the court of appeals 
is reported at 827 F.2d 163 and is set 
out at pp. 3a-lla of the Appendix. The 
order denying rehearing, which is not 
reported, is set out at la-2a. The 
district court's memorandum opinion and

norder, dated August 2$, 1986, which is
not reported, is set out at 12a-33a. The 
Report and Recommendation of the United 
States Magistrate, dated March 21, 1986,
which is not reported, is set out at 34a- 
50a .

JURISDICTION
The judgment of the court of appeals

n  3was entered on August >8., 198R. A timely 
petition for rehearing and suggestion for 
rehearing en banc was denied by the court 
on October 30, 1987. On January 19,
1988, Justice John Paul Stevens signed an 
Order extending the time for filing the 
petition for a writ of certiorari until



3
February 27, 1988. Jurisdiction of this
Court Is Invoked pursuant to 28 U.S.C.
§ 1254 (1).

STATUT0RY PROVISIONS INVOLVED
Section 703 of Title VII of the 1964

Civil Rights Act, 42 U.S.C. § 2000e-2(a)
provides in pertinent part:

(a) It shall be an unlawful 
employment practice for an employer-

(1) to fail or refuse to 
hire ... 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 
... in any way which would 
deprive or tend to deprive 
a n y  i n d i v i d u a l  of 
employment opportunities 
or otherwise adversely 
affect his status as an 
employee, because of such 
individual's race, color, 
religion, sex, or national 
origin....

(c) It shall be an unlawful
employment practice for a labor

14



4
organ!zat ion-

(2) to limit, segregate, or 
classify its membership ... 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 ... because of such 
individual's race, color, 
religion, sex or national 
origin....

(h) Notwithstanding any other 
provision of this title, it shall 
not be an unlawful employment 
practice for an employer to apply 
different standards of compensation 
or different terms, conditions or 
privileges of employment pursuant to 
a bona fide seniority or merit 
system ... provided that such 
differences are not the result of an 
intention to discriminate because of 
race, color, religion, sex, or 
national origin....
Section 706(e) of Title VII of the

1964 Civil Rights Act, 42 U.S.C. § 2000e-
5(e), provides in pertinent part:

A charge under this section 
shall be filed within one 
hundred and eighty days after 
the alleged unlawful employment 
practice occurred. . . , except 
that in the case of an unlawful 
e m p l o y m e n t  practice with 
respect to which the person 
a g g r i e v e d  has i nitially

15



5
instituted proceedings with a 
State or local agency . . . , such 
charge shall be filed ... 
within three hundred days after 
the alleged unlawful employment 
practice occurred....

STATEMENT OF THE _C[ASE 
Plaintiffs Lorance, Bueschen and 

King brought this Title VII action 
claiming that the defendants AT&T 
T e c h n o l o g i e s  and L o c a l  1942, 
International Brotherhood of Electrical 
Workers instituted a seniority system 
discriminatori1y designed to limit the 
job rights of female workers who had 
recently promoted into traditionally male 
jobs. The lower courts failed to decide 
these claims b e c a u s e  the courts 
determined that the plaintiffs did not 
file timely charges with the Equal 
Employment Opportunity Commission. The 
essence of the lower courts' rulings was 
that the plaintiffs had to submit charges 
timely filed from the date the plaintiffs 
became subject to the seniority system

16



6
rather than from the date that the system 
actually adversely affected their job 

positions.
At AT&T's Montgomery Works in 

Aurora, Illinois, women were historically 
assigned to lower-paid traditionally 
female jobs and men were assigned to 
higher-paid traditionally male jobs. In 
1970 and 1971 the plaintiffs were hired 
into traditionally female jobs. At that 
time, the concept of plant seniority 
g o v e r n e d  job promotions  and job 
reductions-in-force . Given relatively 
equal qualifications the employee who had 
been employed for the longest period 
within Montgomery Works would be the 
first promoted and the last demoted or 

laid off .
Among the higher-paid hourly jobs 

were "tester" jobs. "[T]hese positions 
traditionally had been filled by men 
[but] by 1978 an increasing number of



7
women had used their plant-wide seniority 
to obtain jobs as testers." App. 4a. In 
late 1978 or early 1979, the defendant 
Electrical Workers created and proposed 
to the Company a dual seniority system, 
termed the "Tester Concept." Under this 
dual system a worker's date of; initial 
assignment to a tester job established 
"job seniority" which applied to all job 
promotions and demotions in tester 
positions, while plant seniority applied 
to other matters, App. 16a; see, App. 4a.

After holding discussions about the 
Tester Concept at several union meetings, 
the union called a special meeting on 
June 28, 1979, 1 to vote on whether the
Tester Concept should be adopted. The 
union membership approved the Tester 
Concept "by a margin of ninety votes to

1 The court of appeals decision 
erroneously stated the date as June 28,
1978, App. 5a; the correct date, June 28,
1979, is set forth in the district court 
opinion. App. 16a.

18



8

sixty -- approximately the ratio of men 
to women." App . 5a. The three 
plaintiffs, who were union members, 
opposed the adoption of the Tester 
Concept. Id. On July 23, 1979, the 
union and company signed an agreement 
adopting the Tester Concept, App. 5a, and 
in August 1980, the agreement was 
incorporated into the master contract, 

App. 17a.
At the time of the initial adoption 

of the dual seniority system, Lorance was 
a tester. In February 1980 King became a 
tester and in November 1980, the third 
plaintiff, Bueschen, became a tester. In 
the Summer 1982 the plaintiffs' job 
positions were adversely affected for the 
first time by the restructured seniority 
system. Plaintiffs Lorance and King were 
demoted from senior tester positions to 
1 ower-paying, junior positions, and 
Bueschen was demoted to a non-tester

19



9
position. App. 5a.

If the traditional plant seniority 
system had applied, the plaintiffs would 
not have been demoted. The plaintiffs 
filed charges with the Equal Employment 
Opportunity Commission in April 1983. 
App. 5a. These charges were filed within 
the time period prescribed by Title VII2 
if that period commenced from the date 
the dual seniority system caused the 
plaintiffs' job demotions.

In September 1983 the plaintiffs' 
filed their civil action. On March 21, 
1986, the United States Magistrate 
recommended that the Court grant the 
Company's Motion for Summary Judgment.

2 Since Illinois is a "deferral 
state," that is, a state which has a fair 
employment practices commission which may 
grant relief to the victims of 
discriminatory employment practices, 
"Title VII claims brought in Illinois are 
generally subject to a 300-day period of 
limitation." App. 6a. The lower courts 
applied the 300-day period to this 
action. App. 6a n.2; App. 19a-20a n.3.

20



10
Although "unfortunate," the Magistrate 
determined that the plaintiffs "slept on 
their Title VII rights" because they did 
not file timely Title VII charges from 
the adoption of the new seniority system 
when it was "incorporated into the master 
contract ... in August of 1980 and ... 
published to the world." App. 48a-49a.

The district court declined to adopt 
the magistrate's report and rejected the 
magistrate's use of the "date of 
adoption" of the seniority system for the 
calculation of the filing period, Dut 
nevertheless granted summary judgment.3 
While noting that the plaintiffs' 
argument that they filed timely charges 
had "immediate appeal," App. 25a, the 
district court ruled that the time period

3 While the union never filed a 
motion for summary judgment, the court 
sua sponte entered judgment in favor of 
the union because the company's "motion 
is equally effective In barring the claim 
against" the union. App. 33a n.7.



11
commences from "the date [the plaintiffs] 
were forced to sacrifice their plant 
seniority rights under the 'Tester 
Concept.'" App. 32a.4

Although the Seventh Circuit found 
that "the plaintiffs' argument is 
logically appealing," App. 8a, the court 
rejected the plaintiffs' argument that 
the filing period may be triggered by the 
application of a discriminatory seniority 
system in a manner which actually injured 
the plaintiffs by causing their job 
demotion. Rather the court "conclude[d] 
that the relevant discriminatory act that 
triggers the period of limitations occurs 
at the time an employee becomes subject 
to a facially neutral but discriminatory

4 Since Lorance was a tester when 
the dual system was initially implemented 
in July 1979, her filing period commenced 
as of that date. The filing periods for 
King and Bueschen commenced respectively 
on February 25, 1980, and November 30,
1980, the dates they became testers. 
App. 32a-33a n.6.

22



12

seniority system that the employee knows, 
or r e a s o n a b l y  s h o u l d  know, is 
discriminatory." App. 9a.

In his dissent. Judge Cudahy argued 
that the majority's decision would fail 
its stated goal to obtain prompt 
resolution of challenges to seniority 
systems since women who promote in the 
future into the Tester jobs may still 
challenge defendants' dual seniority 
system. Also, Judge Cudahy concluded 
that there is no basis for applying 
different procedural rules to seniority 
systems which are facia 1ly-neutral but 
are created with an intent to operate 
discriminatorily than to systems which 
are facially discriminatory, and that the 
majority's decision "may encourage 
premature lawsuits." App. 10a.

On October 30, 1987, the Seventh
Circuit denied the plaintiffs' petition 
for rehearing and suggestion for



13
rehearing en banc, although three judges, 
Cudahy, Easterbrook, and Ripple, voted to 
grant rehearing en banc. App. la-2a.

REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED TO 

RESOLVE A CONFLICT BETWEEN THE 
SEVENTH CIRCUIT AND OTHER CIRCUITS 
AS TO WHETHER THE APPLICATION OF A 
DISCRIMINATORY SENIORITY SYSTEM 
CREATES AN ACTIONABLE WRONG FROM 
WHICH AN INJURED WORKER MAY FILE A 
TIMELY ADMINISTRATIVE CHARGE.
The decision In this case Is a sharp

break from a uniform position among the
circuits that each application of a
discriminatory practice, such as a pay
plan,5 seniority system or entitlement to
retirement benefits, constitutes an
actionable wrong from which an employee
may file a timely administrative charge.6

5 There was a single prior 
exception to this uniform rule which this 
Court reversed. Bazemore v. Friday, 106 
S. Ct. 3000 (1986). See section II, infra.

6 An individual who claims injury 
from an unlawful practice under Title VII 
must file a charge with the Equal 
Employment Opportunity Commission within 
180 days after "the alleged unlawful

24



14
Although the Seventh Circuit recognized 
that this analysis of the other circuits 
"Is logically appealing," App. 8a, the
court rejected the analysis when it ruled 
that the job demotions suffered by 
Lorance, Bueschen and King as a result of 
the operation of the discriminatory 
seniority system were not actionable 
wrongs .

In conflict with the Seventh 
Circuit, four circuits have held that 
each application of a discriminatory 
seniority system or of a discriminatory 
collective bargaining agreement provision 
is a s e p a r a t e  violation of fair

employment practice occurred" or within 
300 days if the individual instituted 
proceedings with a State or local agency. 
42 U.S.C. § 2000e-5(e). In order to file 
a Title VII suit, an individual must have 
filed a timely charge. 42 U.S.C.
§ 2000e-5(g ) . The Age Discrimination in 
Employment Act (ADEA) contains similar 
provisions, 29 U.S.C. § 626(c), (d), 
which have been interpreted in the same 
manner as the Title VII time-filing 
provisions. See, n.8, infra.



15
employment law. In addition, a fifth 
circuit has recently explicitly rejected 
the ruling by the Seventh Circuit in 

Lorance.
Furthermore, three circuits have 

determined that the mere existence 
w i t h o u t  an a p p l i c a t i o n  of a 
d i s c r i m i n a t o r y  p r a c t i c e  is an 
insufficient basis for a cause of action. 
However, the Seventh Circuit requires 
workers to forfeit their rights if they 
do not file charges of discrimination 
within 300 days of becoming subject to a 
discriminatory practice even though there 
has been no application of the practice. 
Although the plaintiffs filed timely 
administrative charges within 300 days of 
their job demotions, the Seventh Circuit 
dismissed their challenge to the gender- 
motivated seniority system7 because they

7 If a seniority system is created 
with an intent to discriminate on the 

. basis of gender, then it is not a "bona



16
failed to file timely charges from the 
date that they "bec[a]me subject to [the] 
facially-neutral but discriminatory 

seniority system...." App. 9a.
Contrary to the Seventh Circuit, the 

Second Circuit has held "that the 
alleged discriminatory violations [caused 
by a seniority system] ... must be 
classified as continuous ones, giving 
rise to claims accruing in favor of each

fide" system and violates Title VII. 
See, Teamsters United States, 431 U.S. 
324 , 353-56 ( 1977 ) . AT&T Technologies 
was granted summary judgment, and the 
facts are not in dispute for the purposes 
of this appeal. After female workers 
promoted into the higher-paying hourly 
jobs, the "Tester" jobs, the union 
proposed and the company accepted a dual 
seniority system. This system provided 
that job promotions and demotions would 
be controlled by the seniority of a 
worker in the traditionally male jobs 
whereas plant seniority continued to 
control other matters. Accordingly, when 
the Company reduced its workforce all men 
w h o  h a d  b e e n  a s s i g n e d  to the 
traditionally male jobs before women were 
allowed to promote to these jobs would be 
permitted to retain their jobs longer 
than all women even if the women had 
greater plant seniority than all or some 
of the men. See, Statement of Case.

27



17
plaintiff on each occasion when the 
merged seniority list was applied...."
(Emphasis added), Cook v._Pan American
World_A irwayst_Inc. , 771 F.2d 635, 646
(19 8 5) , c e rt . derpied, 106 S. Ct. 895
(1986).8 Similarly, the Sixth Circuit

8 A l t h o u g h  Coo k is an age 
discrimination case, the Second Circuit 
applied the legal principle which it had 
developed for determining the timeliness 
of an administrative charge filed
pursuant to Title VII. Cook_v .__Pan
American World Airways^£_Inc. , 771 F.2d at
646, q u o t i n g , Association Against 
Di s c rimination in Emp1qy merit, Inc. v . 
City of Bridgeport , 647 F.2d 256, 274
(19 8 1), c e rt . denied, 455 U.S. 988
(1982 ) .

This Court has applied the same 
interpretation to filing requirements 
under the ADEA and Title VII because 
Congress modeled the filing requirement 
in the ADEA after the Title VII
requirement , Z 1p e s v . Trans_Wor 1 d
AirlineSj_Inc. , 455 U.S. 385, 395 n.ll
(1982), because "the ADEA and Title VII 
share a common purpose," and because of 
the closely identical language in the two 
statutes . Oscar JM aye r _ & C o . v . Eva n s , 
441 U.S. 750, 756 (1979). See also,
Bruno_v ._Western Electric Co., 8 29 F. 2d
9 57, 960 n.l (10th Cir. 1987) ("[T]he
application of the continuing violation 
theory [is] the same for ADEA and Title 
VII cases ....")

28



18
held "that the adoption of a seniority 
system ... constitutes a continuing 
violation of the ADEA as long as that 
system is maintained [and] plaintiffs' 
cause of action accrued at the time of
[their] la[y]off...." Morelock_v._NCR
Corp., 586 F . 2 d 1096, 1103 (6th Cir.
1978), cert, denied, 441 U.S. 906 (1979).

The Fourth Circuit ruled that there 
are "truly 'continuing' violations of 
Title VII" where the plaintiffs charged 
that the seniority system "constitute[d ] 
an existing violation" which "involve[d] 
a continuing pattern or practice of 
discrimination that locked black and 
women employees into less favorable job 
positions." (Emphasis in original) 
Patterson v. American Tobacco Co., 634
F .2d 744, 751 (1980), vacated on other
g r o u n d s , 456 U.S. 63 ( 1 9 8 2 ) . 9

9 The Supreme Court reversed the 
Fourth Circuit's decision that a 
seniority system adopted after the

29



19
Accordingly, the Pat terson claims were 
"not barred by [the plaintiffs') failure 
to have challenged at its inception the 
policy which gave continuing rise to [the 
claims]." Id.

The Lorance plaintiffs were barred 
from challenging the Illegal dual 
seniority system even though they filed 
administrative charges within 300 days 
from their job demotions. In conflict 
with the Second, Fourth, and Sixth

effective date of Title VII was unlawful 
simply because the system adversely 
affected blacks or women even If the 
system were bona fide, as defined in
§ 7 0 3(h). Arne r1 can Tobacco Co L_v^
Patterson, 456 U.S. 63, 77 (1982). The
Court did not review the Fourth Circuit's 
ruling that an illegal seniority system 
constitutes a continuing violation. The 
Fourth Circuit has continued to hold that 
a plaintiff may seek relief from an 
unlawful practice even though she did not 
file a charge within 180 days of its 
first occurrence as long as the plaintiff 
filed within 180 days of the last 
occurrence. Taylor v. Home Insurance 
Company, 777 F .2d 849, 856 (1985), cer t.
denied, 106 S. Ct. 2249 (1986); Crosland
v .__Char 1ot t e E y e , E a r a nd Throat
Hospital, 686 F.2d 208, 2 12 ( 1982 ) .



20
Circuits, the Seventh Circuit ruled that 
the plaintiffs were forever barred from 
challenging the seniority system when 
they failed to file a charge within 300 
days of the date when they became subject 
to the system.

In addition to the three circuits 
which determined that the application of 
discriminatory seniority systems is a 
continuing violation, the Third Circuit, 
in a situation closely related to a 
collectively bargained for seniority 
system, held that a violation occurs on 
each application of a discriminatory 
provision in a collective bargaining 
agreement which prevented employees 
eligible for early retirement from 
receiving layoff benefits. EEOC v .
Westlnqhouse Electric_Corp. , 7 25 F.2d
211, 219 (1983), cert■ denied, 469 U .S . 
820 (1984). In Lorance, the Seventh 
Circuit holds that each application of a

31



21
discriminatory contract provision does 
not create a present violation, whereas 
the Third Circuit holds to the 
contrary.10

Furthermore, the First Circuit

10 Two circuits have held that each 
application of a practice not contained 
in a collective bargaining agreement 
constitutes a new violation of Title VII. 
The District of Columbia Circuit ruled 
that each use by the Army of an 
e v a l u a t i o n  r e p o r t  w h i c h  w a s  
discriminatori 1 y prepared constituted a 
new violation even though the evaluation 
was prepared outside of the filing 
period. Stoller v. Marsh, 682 F.2d 971, 
978-79 (1982), cert, denied, 460 U.S.
1037 (1983). The Seventh Circuit ruling
that the use of a discriminatory 
seniority rating for Lorance by the 
Company does not establish a present 
violation is inconsistent with the 
S toller ruling that the use of a 
discriminatory supervisory rating does 
establish a present violation. See also,
V a lentino_v . U nited_States Postal
Service, 674 F.2d 56, 6 5 ( D .C . C i r .
1982); McKenzie v. Sawyer, 684 F.2d 62, 
72 (D.C. Cir. 1982). In agreement with
Stoljer, the Fifth Circuit ruled that an 
injured worker may sue after each 
application of a discriminatory policy 
(in this instance the exclusion of Jewish 
physicians from serving in a program in
Saudi Arabia), Abrams v._Baylor College
of Medicine, 805 F.2d 528, 534 (1986)

32



22
recently specifically rejected the 
Seventh Circuit's decision in Loranee and 
approved the Third Circuit's decision in 
Westlnghouse Electric Corp. Johnson v.
General_Electric, No. 87-1752, slip op.
at 7-8 (February 22, 1988). The First
Circuit concluded that the decision in 
Lorance is "unreasonable, as well as 
undesirable from a public policy 
perspective." Id. at 9.

The conflict between the Seventh 
Circuit and the Third, Fifth and Sixth 
Circuits is particularly severe. These 
circuits hold that "the mere existence" 
of a discriminatory policy is an 
insufficient basis for a cause of action. 
Abrams v . Baylor College of Medicine, 805 
F . 2 d at 533. An employee's cause of 
action "does not accrue until [the 
worker's] employment opportunities are 
adversely affected by the application" of 
a discriminatory seniority system,

33



23
Morelock v. NCR Corp., 586 F.2d at 1103, 
or of a discriminatory collective
b a r g a i n i n g  a g r e e m e n t ,  EE 0 C__v
Westlnghouse Electric Corp., 725 F.2d at
219; contra, Domingo v._New England Fish
Co., 727 F .2d 1429, 1443, modified, 742 
F . 2d 520 (9th Cir. 1984).11 See also, 
J ohnson v . Genera1 Elec trie, slip op. at 
10 ( "[I ] t is questionable whether an
action by an employee who has not yet 
suffered any injury as a result of a 
discriminatory system is sufficiently 11

11 The Fifth Circuit recognizes 
that "courts have differed over whether 
the existence of the policy Itself 
constitutes a continuing violation, 
making a suit timely if the policy 
remains in effect during the actionable 
period, or whether there must be some 
actual application of it to the plaintiff
within the period." Berry v. Board_of
Supervisors of L.S.U., 715 F,2d 971, 979
(1983), cert. denied, 107 S. Ct. 232
(1986). However, this Court has stated 
t h a t  the m e r e  a d o p t i o n  of a 
discriminatory "seniority system which 
has not been applied would not give rise 
to a cause of action." American Tobacco
Co._v. Patterson, 456 U.S. at 69. See,
section II, infra.

34



24
ripe.") Thus, the Third, Fifth, and 
Sixth Circuits would dismiss as premature 
a cause of action based upon an 
administrative charge filed at the time 
required (when the worker first became 
subject to a discriminatory policy) by 
the Seventh Circuit, whereas the Seventh 
Circuit would often dismiss a cause of 
action as based upon an untimely filing 
of a charge which was made on the only 
occasion (the actual application of a 
discriminatory policy) permitted by the 
Third, Fifth, and Sixth Circuits.

The severity of the conflict among 
the circuits12 not only leads to starkly

12 In addition to the direct 
conflicts with the five circuits set 
forth above, the Seventh Circuit's 
analysis in Lorance conflicts with three 
additional circuits which have ruled that 
a general discriminatory pattern may 
establish a continuing violation which 
would permit the plaintiff to recover for 
acts which occurred before the filing 
period. The Tenth Circuit ruled that 
"[a] claim of age discrimination ... may 
be based on a continuing policy and 
practice of discrimination that began 35



25
different judicial results but also makes 
impossible the consistent and fair 
implementation by the Equal Employment 
O p p o r t u n i t y  C o m m i s s i o n  of an 
administrative process which annually 
receives approximately 70,000 charges of

before the statutory filing period, as 
long as the employer continues to apply 
the discriminatory policy ... to a point 
within the relevant filing period.... 
Discriminatory acts occurring before the 
filing periods ... are used by the courts 
to fashion a remedy and determine 
damages." Furr v. AT&T Technologiest 
Inc,, 824 F.2d i5~3 7, 1543 (1987 ); see
also, Williams jv. Owens^Il llnois , Inc ̂ , 
6 6 5 F .2d 9 18, 924-25 (9th Cir. ) , cert,
denied, 459 U.S. 971 (1982); Reed v .
Lockhee d Aircraft Corp, , 613 F.2d 757,
759-60 (9 th Cir. 1980); Satz v.__ITT
Financial Corp., 619 F.2d 73 8, 7 4 3-4 4
(8th Cir. 1980).

Thus, the Tenth Circuit determined 
that relief may be provided to plaintiffs 
at an AT&T Technologies plant in Colorado 
who suffered discriminatory denial of 
promotions to supervisory positions based 
upon a general policy of discrimination 
established prior to the filing period,
Furr_v, AT&T Technologies,_Inc . , while
the Seventh Circuit denied relief to 
women at the AT&T Technologies plant in 
Illinois who suffered discriminatory job 
demotions based upon a policy established 
before but implemented during the filing 
period.

36



26
discrimination. See, Equal Employment 
Opportunity Commission, 19th Annual 

Report at 18.
The conflict between the Seventh 

Circuit and the neighboring Eighth and 
Sixth Circuits imposes upon the EEOC 
district offices in Milwaukee, which has 
jurisdiction for States within the 
Seventh (Wisconsin) and the Eighth 
Circuits (Minnesota and Iowa), and in 
Indianapolis, which has jurisdiction for 
States within the Sixth (Kentucky) and 
Seventh Circuits (Indiana), the difficult 
task of treating identical charges 
differently depending upon the State in 
which the party alleging discrimination 
works.I 3 This confusing task is 
compounded by the significant number of 1

1 3 S^je , E E O C  D i r e c t i v e s  
Transmittal, Number 120.001, November 12, 
1987 (defines the geographical area 
supervised by each EEOC office). A copy 
of this Transmittal has been lodged with 
the Court.

37



27
charges of discrimination received 
a n n u a l l y  by the M i l w a u k e e  and 
Indianapolis offices.14

In order to provide guidance for its 
staff the EEOC has p r e p a r e d  an 
Interpretive Manual. Bureau of National 
Affairs, EEOC Compliance Manual at Volume
2. Contrary to the Seventh Circuit, the 
EEOC Manual concludes that the operation 
of an illegal practice, such as a 
seniority system, is a present violation 
of Title VII.15 The Lor ance d e c i s 1 o<i 
requires the EEOC, the Federal agency 
charged with enforcing Title VII, to 
disregard its interpretation of the law 
for Illinois, Wisconsin, and Indiana

14 In Fiscal Year 1984 there were 
4,764 charges filed from the States 
covered by the Milwaukee office and 5,225 
charges from the States covered by the 
Indianapolis office. Equal Employment 
Opportunity Commission, 19th Annua1 
Repor t at 20-21. (This is the most 
recent Report prepared by the EEOC).

15 See, BNA EEOC Compliance Manual 
at Volume 2, §§ 605.6, 605.7 ( a ) , 616.14 (b)~.

38



28
while implementing its interpretation of
the law for the neighboring States.
II. CERTIORARI SHOULD BE GRANTED BECAUSE 

THE SEVENTH CIRCUIT'S DECISION 
CONFLICTS WITH THIS COURT'S STANDARD 
AS TO WHETHER THE OPERATION OF A 
DISCRIMINATORY PRACTICE CAUSES AN 
ACTIONABLE WRONG AND RAISES AN 
IMPORTANT QUESTION AS TO THE 
APPLICATION OF FAIR EMPLOYMENT LAW.
This Court ruled that "[e]ach week's

pay check that delivers less to a black
than to a similarly situated white is a
wrong actionable under Title VII,
regardless of the fact that this pattern
was begun prior to the effective date of
Title VII." Bazemore v. Friday, 106 S .
Ct. at 3006-07. As each application of
the pay practice in Bazemore was "a wrong
actionable under Title VII," so is each
application of the discriminatory
seniority practice in Lorance.

The Seventh Circuit refuses to hold
that the application of a discriminatory
s e n i o r i t y  s y s t e m  is an act of
discrimination because "employees could 39



29
c h a l l e n g e  a s e n i o r i t y  s y s t e m  
Indefinitely," and relying upon Delaware 
State Cqliege v. Ricks, 449 U.S. 250
(1982), because such a ruling "would run 
counter to the strong policy favoring the 
prompt resolution of discrimination 
disputes." App. 8a.

The Court has already rejected the 
position of the Seventh Circ u'"i t by 
holding that Title VII "does not 
foreclose attacks on the current 
operation of seniority systems which are 
subject to challenge as discriminatory,"
United Air_Lines ,_Inc, v. Evans, 431 U.S.
553, 560 (1977). 16 Moreover, the

16 In Un i t e d _A i r L i n e s the
plaintiff was forced to resign because 
the company refused to employ pregnant 
stewardesses. After rehire, Evans 
challenged the failure of the company to 
count her seniority from her prior 
employment. Unlike Lorance, Evans did 
not complain that the seniority system 
was illegal but merely that the system 
perpetuated the effects of the illegal 
policy of forced termination which the 
company no longer applied.

40



30
Teamsters decision compels the conclusion 
that each application of a discriminatory 
seniority system violates Title VII. The 
Court held that an "otherwise neutral, 
legitimate seniority system" does not 
violate Title VII "simply because it may 
perpetuate pre~Act discrimination." 431 
U.S. at 353-54. However, if the system 
had its "genesis in ... discrimination" 
or "was negotiated" with an "illegal 
purpose" then the system's perpetuation 
of discrimination is unlawful. 431 U.S. 
at 356. 17 The Seventh Circuit's ruling 
prevents Lorance from establishing

17 Also this Court has concluded 
that "'[a]bsent a discriminatory purpose, 
the operation of a seniority rule cannot 
be an unlawful employment practice even 
if the system has some discriminatory 
consequences.' Thus, any challenge to a 
seniority system and Title VII will 
require a trial on the issue of 
discriminatory Intent. . . ." Pullman- 
Standard v. Swint, 456 U.S. 273, 277 
(1982). Absent discriminatory purpose, 
the operation of a seniority system is 
not illegal, but with discriminatory 
purpose, the operation of the system 
violates Title VII. 41



31

pursuant to the reasoning in Teamsters 
that her job demotion was illegal because 
it was caused by a seniority system which 
was created and negotiated with an intent 
to advantage male workers over female 
workers.

Furthermore, the Supreme Court has 
determined that " [t]he adoption of a 
seniority system which has not been 
applied would not give rise to a cause of 
action. " flmerlcan Tobacco Co . v . 
P a t t e r s o n , 456 U.S. at 69. The 
"discriminatory effect arisefs] only when 
the system is put into operation...." 
Id. In California Brewers Association v. 
Bryant, 444 U.S. 598, 602, 610-11 (1980), 
the Supreme Court remanded the issue of 
whether the operation of a facially 
neutral seniority rule adopted more than 
10 years prior to the filing of the 
complaint was bona fide and lawful. See 
also , Nashville Gas Co. v._Sat ty, 4 3 4

42



32

U.S. 136, 139 (1977).18 The Seventh 
Circuit takes the untenable position 
requiring Lorance to file a charge before 
the operation of the discriminatory 
seniority system injures her even though 
this Court indicated that the mere 
existence of a discriminatory system does 
not give rise to a cause of action and 
even though in Satty and Bryant the Court 
implicitly determined that the operation 
of a 1 ong - e s t a b 1 i s hed discriminatory 
seniority system is a present illegal 
act.

18 In Satty the Supreme Court ruled 
illegal the Company's seniority system 
provision denying accumulated seniority 
to female employees returning to work 
following pregnancy leave. Although 
hired in 1969 and subject to the system 
for four years, the plaintiff did not 
challenge the system until 1973 when she 
was denied accumulated seniority after 
she returned to work after childbirth. 
The Court held that the seniority 
practice violated Title VII. Under the 
Lorance decision, Satty's claim would 
have been dismissed as untimely since she 
did not file a charge within 300 days of 
becoming subject to the seniority system. 43



33
Also, the Seventh Circuit's reliance 

upon Delaware State College v. Ricks, 
supra, Is misplaced. Ricks complained 
that he was d 1scr1minator11y denied 
tenure and that he continued to suffer 
Injury while he worked pursuant to a one- 
year termination contract. In rejecting 
Ricks' argument, the Court concluded that 
the "termination of employment ... is a 
delayed but inevitable, consequence of 
the denial of tenure. . . . [T]he only 
alleged discrimination occurred -- and 
the filing limitations periods therefore 
commenced —  at the time the tenure 
decision was made...." 449 U.S. at 257- 
58. Unlike the pay practice in Bazemore 
and the seniority system In Lorance, no 
current discriminatory practice was 
alleged in Ricks. 19

19 The Ricks and Evans decisions 
that single discriminatory acts do not 
constitute continuing violations merely 
because those acts have continuing 
consequences are not remarkable. These

44



34
Under the Fair Housing Act of

decisions are no different from the 
application of a limitation period to an 
accident case. Although the victim of an 
automobile accident may suffer from his 
injuries for the remainder of his life, 
the statute of limitations runs from the 
date of the accident.

On the other hand, this Court has 
long held that an illegal continuing 
practice creates a new violation whenever 
the practice causes injury. An Illegal 
system for distributing shoe machinery 
which commenced in 1912 was subject to a 
timely suit in 1955 although damages were 
restricted by the applicable statute of
limitations. Hanover_Shoe , Inc ._v .
United Shoe Machinery,_Inc. , 39 2 U .S .
481, 502, n .15 (1968); see also, Zenith
Radio Corp ._v . Hazel time Research , 401
U.S. 321, 338-39 (1971) (continuing
conspiracy to restrain trade); Corning 
Glass Works v. Brennan, 417 U.S. 188, 208 
(1974) (continuing illegal pay scales). 
An illegal continuing seniority system, 
like an illegal pay system, monopoly, or 
a practice in restraint of trade, 
violates the law whenever it causes 
injury. See L a y c o c k , Continuing
V i o 1 a ti on s ,_D i s p a r a t e Impact in
Compensation, and Other Title VII Issues, 
49 Law and Contemp. Probs. 53 (1986).

45



35

1968,20 a civil rights statute closely 
similar in purpose and design to Title 
VII, the Court has distinguished between 
a discrete act of discrimination and a 
continuing practice of discrimination in 
applying the limitations period. If 
there is a continuing practice of racial 
steering, a court may remedy instances of 
discriminatory steering which occurred 
prior to the 180-day period for filing an 
administrative charge so long as at least 
one application of the steering practice 
occurred within the filing period. Where 
there is a continuing practice, not only 
does "the staleness concern [of statutes 
of limitations] disappear[ ]," but also a 
"wooden application" of the limitations 
period "undermines the broad remedial

20 The Fair Housing Act provision, 
42 U.S.C. § 3612(a), which requires the 
filing of an administrative charge within 
180 days of the discriminatory act, "is 
comparable to the one imposed by the Age 
Act [and by Title VII]." Taylor v. Home 
Insurance Company, 777 F.2d at 856.



36
intent of Congress embodied in the 
Act...." Havens Realty Corp. v. Coleman, 
455 U.S. 363, 380-81 (1982).

This Court has established a similar 
"guiding principle" for interpreting 
Title VII limitations provisions. "[A] 
technical reading [of those provisions] 
would be 'particularly inappropriate in a 
statutory scheme in which laymen, 
unassisted by trained lawyers, initiate
the process. Zipes_v.Trans World
Airlines, Inc., 455 U.S. at 397, quoting,
Love v. Pullman Cjô , 404 U.S. 522, 527
( 1972 ). Just as the Court has defined 
the application of a racial steering 
policy as a continuing violation of fair 
housing law, so should the Court define 
the application of a gender-motivated 
seniority policy as a continuing 
violation of fair employment law.

The Lorance rule is particularly 
unfair since it requires a worker to

47



37
bring suit whenever there is an arguably 
discriminatory standard21 imposed even 
though it has not been applied. As in 
Lorance, a changed seniority system might 
eventually result in a worker being 
"bumped" to a lower-paying job. But then 
again as a result of any number of 
possible occurrences, such as a change in 
the system, a worker's promotion to a 
supervisory position not covered by the

21 The Lorance rule might apply to 
the imposition of any discriminatory 
practice. For example, a company may 
establish an educational requirement for 
promotion which is unlawful because it 
disqualifies disproportionately more 
blacks than whites and it is not "job 
related." Cf., Griqqs v . Duke Power Co., 
401 U.S. 424 ( 1971). Under Lorance , an 
employee must sue when the policy is 
imposed or forfeit his or her Title VII 
r i g h t s .  H o w e v e r ,  a b s e n t  the 
confrontational Lorance rule, an employee 
might decide to attempt to achieve the 
required educational degree and thereby 
qualify prior to the next promotional 
opportunity. Rather than encouraging 
accommodation, the Lorance rule requires 
the worker to confront the company's 
policy even before it is applied, before 
the worker is harmed, and even though the 
worker may never be harmed by the new practice .48



38
seniority system or transfer to another 
d e p a r t m e n t ,  the n e w l y  i m p o s e d  
discriminatory system may never apply to 
a particular worker. A worker may 
reasonably decide that it is better not 
to tilt at hypothetical windmills.

It is counter-productive to any 
sensible attempt to limit litigation to 
require, as the Seventh Circuit did in 
Lorance, workers to sue before they have 
been harmed and even though they may 
never be harmed simply because a 
potentially discriminatory employment 
standard has been imposed. As the First 
Circuit recently concluded in rejecting 
the Lorance decision, "[i]t is unwise to 
encourage lawsuits before the injuries 
resulting from violations are delineated, 
or before it is even certain that 
injuries will occur at all." Johnson v . 
Genera] Electric, slip op. at 10. It is 
especially inappropriate to require

49



39
premature and possibly unnecessary 
litigation about the hypothetical 
application of a newly imposed practice 
since Congress established "[c]ooperation 
and voluntary compliance . . . as the 
preferred means for achieving [Title 
VII 1 s ] goals . " Alexander v . Gardner- 
DenverCo., 415 U.S. 36, 44 (1974).

Moreover, the Seventh Circuit fails 
to accomplish its purported goal of 
encouraging prompt litigation over newly 
established practices. Since female 
workers who promote into the Tester 
position in the future may sue, the 
system may be challenged for years after 
its adoption. The Seventh Circuit takes 
the untenable position that workers who 
are demoted on the same day as a result 
of the same a p p l i c a t i o n  of the 
discriminatory system have different 
Title VII rights. A female worker who 
promoted to the Tester position within

50



40
300 days of the demotion may sue, while a 
worker who promoted more than 300 days 
before the demotion has forfeited her 
Title VII rights.

The Lorance-engendered conflict 
regarding the application of Title VII to 
seniority systems is especially important 
because " [ s ]eniority systems and the 
entitlements conferred by credits earned 
thereunder are of vast and increasing 
importance in the economic employment 
system of this Nation." Franks v. Bowman 
TransportationCo., 424 U.S. 747, 766 
(1976);22 see also, Trans World Airlines,

22 In a recent survey of 400 major 
collective bargaining agreements, the 
Bureau of National Affairs determined 
that 90 percent of the contracts 
contained seniority provisions. 2 
Collective Bargaining Negotiations and 
Cont. (BNA) at 75:1 (April 4, 1986). In 
Its most recent comprehensive study of 
collective bargaining agreements, which 
was undertaken in 1972, the Bureau of 
Labor Statistics surveyed the 1974 major 
collective bargaining agreements which 
covered 8.2 million workers. Of the 1974 
agreements, 1501 agreements covering 6.1 
million workers contained seniority 51



41
Inc, v, Hardison, 432 U.S. 63, 79 (1977). 
Congress and this Court have recognized 
that "on occasion" the purpose of Title 
VII to eliminate discrimination would 
"conflict with policy favoring minimal 
supervision by courts" of collective 
bargaining agreements and the seniority 
provisions which "are of 'overriding 
Importance' in collective bargaining 
agreements " American Tobagco Co. v . 
P a t t e r s o n , 456 U.S. at 76-77.
A c c o r d i n g l y ,  on at least eight 
occasions,23 this Court has reviewed the 
appropriate application of the fair 
employment laws to seniority systems. It

provisions. Bureau of Labor Statistics, 
U.S. Dept, of Labor Bull. No. 1425-11, 
Administration of Seniority at 2 (1972).

2 3 Franks v. Bowman Transportation
Co . , supra; Teamsters v._United States,
supra; United Air Lines v. Evans, supra; 
Trans World Airlines, Inc, v. Hardison,
supra; California Brewers Association_v .
Bryant , supra; Zlpes v. Trans World 
Alrlines , Inc . , supra; American Tobacco 
Co. v. Patterson, supra; Pullman-Standard 
Co. v. Swint, supra.

52



42
is now time for the Court to resolve the 
important issue regarding the application 
of the Title VII procedural requirements 
for filing charges alleging that a 
seniority system or a similar continuing 
policy is illegal.

53



43
CONCLUSION

For the above reasons a writ of 
certiorari should Issue to review the 
judgment and opinion of the Seventh 
Circui t.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS
NAACP Legal Defense and 

Educational Fund, Inc. 
Sixteenth Floor 
99 Hudson Street 
New York, New York 10013

BARRY GOLDSTEIN*
SHEILA Y. THOMAS

NAACP Legal Defense and 
Educational Fund, Inc. 

806 15th Street, N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278

BRIDGET ARIM0ND
14 West Erie Street 
Chicago, Illinois 60610

COUNSEL FOR PETITIONERS
* Counsel of Record

February 26, 1988

54



No. 87-1428
IN THE

Supreme Court of the United States
OCTOBER TERM, 1987

PATRICIA A. LORANCE, et al.
Petitioners,

v.
AT&T TECHNOLOGIES, IN C, et al.

Respondents.

OPPOSITION TO PETITION FOR CERTIORARI

Rex E. Lee*
David W. Carpenter 

Sidley & A ustin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Of Counsel:
\

Joseph Ramirez 
Robert W. Benson 
Juanita G. de Roos

G erald D. Skoning 
Charles C. Jackson 
G ary S. K aplan 

Seyfarth, Shaw , Fairweather 
& G eraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

Attorneys for Respondent 
AT& T Technologies, Inc.

•Counsel of Record

55



I

QUESTION RESTATED

Petitioners claim that a seniority system was adopted with a 
discriminatory motive in violation of the 1964 Civil Rights Act.

The question presented in this case is whether the strict 180 
day statute of limitations of Title VII was properly held to bar 
litigation of this claim when EEOC charges were not filed until 
(1) some three years after both the date of adoption of the senior
ity system and the “forced surrender” of each plaintiffs’ seniority 
and (2) at a time when any evidence of discrimination was neces
sarily stale because the claim was based solely on motive?

56



tl

STATEMENT REQUIRED BY RULE 28.1

AT&T Technologies is a wholly-owned subsidiary of American 
Telephone and Telegraph Company (“AT&T”). AT&T has no 
parent company. In addition to its wholly-owned subsidiaries, 
AT&T has ownership interests, either directly or through wholly- 
owned subsidiaries, in the Cuban American Telephone and Tele
graph Company, Inc.; Ing. C. Olivetti and C., S.P.A.; Cincinnati 
Bell Inc.; Edelson Technology Partners, L.P.; AT&T/Ricoh, 
Ltd.; AT&T Taiwan Telecommunications Co.; Gold Star Fiber 
Optics Co., Ltd.; Western Electric Saudi Arabia, Ltd.; Gold Star 
Semiconductor, Ltd.; Communications Software Development, 
Inc.; AT&T and Philips Telecommunications, B.V.; ShareTech, 
Inc.; Covidea; Counterpoint Computers, Inc.; Omnicad Technol
ogy Corporation; Intermetrics, Inc.; AT&T Microelectronia de 
Espana, S.A.; Mitek, Inc.; Resound Corporation; Global Trans
actions Services Company; and Sun Microsystems, Inc.

57



IU

TABLE OF CONTENTS
Page

QUESTION RESTATED............ ...................... ................. i

STATEMENT REQUIRED BY RULE 28.1.............. .. ii

TABLE OF AUTHORITIES ....................................... . . .  iv

REASONS FOR DENYING THE W R IT ............ .. 1

CONCLUSION . ................................................. 10

58



IV

TABLE OF AUTHORITIES
Cases: Page<s):

American Tobacco Company v. Patterson, 456 U.S. 63
(1982).............................................................................  1, 2, 7, 8

Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th 
Cir.), cert, denied, 404 U.S. 939 (1971)........................  1

Boyd v. Madison County Mutual Insurance Company,
653 F.2d 1173 (7th Cir. 1981), cert, denied, 454 U.S.
1146 (1982)..................................................................... 1,6

Cook v. Pan American World Airways, Inc., 771 F.2d 6.35 
(2d Cir. 1985), cert, denied, 474 U.S. 1109 (1986).... 8, 9

Delaware State College v. Ricks, 449 U.S. 250 (1980) . . .  2, 5, 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..............  6, 7, 8

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .. 6

Heiar v. Crawford County, 746 F.2d 1190 (7th Cir. 1984), 
cert, denied, 427 U.S. 1027 (1985)................................  1, 8

International Association o f Machinists v. NLRB, 362 
U.S. 411 (1960)............................................................... 7

International Brotherhood o f Teamsters v. United States,
431 U.S. 324 (1977)..................................   2,6,7

Johnson v. General Electric Co., No. 87-1752, slip op. (1st 
Cir. Feb. 22, 1988)....................................   8

Mohasco Corp. v. Silver, 447 U.S. 807 (1980). ................. 5

Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978), 
cert, denied, 441 U.S. 906 (1979).................. .. 8, 9

Patterson v. American Tobacco Company, 634 F.2d 744 
(4th Cir. 1980), rev'd, 456 U.S. 63 (1982). . . ..............  6, 8

Pullman-Standard Division o f Pullman, Inc. v. Swint, 456 
U.S. 273 (1982)..............................................................  2, 6

59



V
Cases: Page(s):

Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir.
1982)  .......... ....................................................... .. 1

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) . . .  5, 7

Wygant v. Jackson Board o f Education, 476 U.S. 267, 106 
S.Ct. 1842 (1986) ................................................................  2, 5

Statutes: Page(s):

Civil Rights Act of 1964, § 703(h) 42 U.S.C. § 2000e-
2(h)...................... ...........................................................  passim

Age Discrimination in Employment Act, 29 U.S.C.
§ 623(0.........................................................      8, 9

60



No. 87-1428

IN T H E

Supreme Court of the United States
OCTOBER TERM, 1987

PATRICIA A. LORANCE, et al.
Petitioners,

v.
AT&T TECHNOLOGIES, INC., et al.

Respondents.

OPPOSITION TO PETITION TOR CERTIORARI

REASONS FOR DENYING THE WRIT

This case does not present the issue, or the conflict, that the 
Petition suggests. The Seventh Circuit has not rejected the rule 
that is said to have been adopted by this Court and seven other 
courts of appeals: “that each application of a discriminatory prac
tice . . . constitutes an actionable wrong from which an employee 
may file a timely administrative charge.” Petition, p. 13. To the 
contrary, the Seventh Circuit has consistently recognized this 
principle in its previous decisions,1 and its opinion in this case 
emphasizes that the “holding is a narrow one” that is limited to 
unique issues presented by seniority systems. App. 9a.

"Seniority systems are afforded special treatment under Title 
VII itself.” American Tobacco Co. v. Patterson, 456 U.S. 63, 75 
(1982). Under Section 703(h), seniority systems are an “excep- *

'See Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir. 1984), 
cert, denied, M l U.S. 1027 (1985); Stewart v. CPC Int'l, Inc., 679 F.2d 
117, 120-21 (7th Cir. 1982); Boyd v. Madison County Mut. Fns. Co., 653 
F.2d 1173, 1176-77 (7th Cir. 1981), cert, denied, 454 U.S. 1146 (1982); 
Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1 188 (7th Cir.), cert, 
denied, 404 U.S. 939 (1971).

61



2

tion” to the general rule that a Title VII violation may be proven 
by showing a “discriminatory impact.” Teamsters v. United 
States, 431 U.S. 324, 329 (1977). The only relevant question in a 
case challenging the terms of a seniority system is whether the 
“actual motive” at the time of adoption was discriminatory. Pull
man Standard v. Swint, 456 U.S. 273, 290 (1982). Section 703(h) 
is designed to “immunize [all] seniority systems which perpetuate 
post-Act discrimination” from challenges unless they are timely 
filed (American Tobacco, 456 U.S. at 75) and thereby “to protect 
vested seniority rights.” Id. at 78 (Brennan, J., dissenting on other 
grounds). This Court has recognized that seniority is “the most 
valuable capital asset that the worker owns,” and an employee 
thus suffers immediate injury whenever seniority rights are de
pleted. Wygant v. Jackson Board o f Education, 106 S.Ct. 1842, 
1851 (1986).

The only “discriminatory acts” that are alleged in this case are 
the changes in the three petitioners’ seniority rights that were 
made in 1979 and 1980. By holding that the challenge was un
timely because it was not filed within 300 days, the Seventh Cir
cuit merely applied the criteria of Delaware State College v. Ricks, 
449 U.S. 250 (1980), to a set of unique facts. The holding was also 
required by the terms and purposes of Section 703(h) and by this 
Court’s decision in American Tobacco v. Patterson. There is no 
reason or basis to review the Seventh Circuit’s decision.

This is especially so because the Seventh Circuit is the first 
court of appeals to apply Title VII’s statute of limitations to a 
challenge to a seniority system under the criteria of Section 
703(h). Each decision cited in the petition is readily distinguish
able on this basis. At the present time, there is no indication that 
the question of when a Section 703(h) challenge to a seniority 
system may be filed will prove to be an important one which will 
divide the courts of appeals. The issue has not yet produced a 
conflict in those courts and is not, under any view, mature enough 
for consideration by this Court.

62



3
1. As the lower courts found, this is a case in which the three 

petitioners knowingly “slept on their Title VII rights." App. 47a. 
Petitioners made a deliberate decision not to challenge the 
changes in their seniority rights until three years after they oc
curred.

The change in the seniority system was implemented in July 
1979. AT&T Technologies (“the Company") and Local 1942, 
International Brotherhood of Electrical Workers (“the Union”) 
then adopted and implemented dual seniority dates for persons 
working in highly skilled and technologically complex “Tester” 
jobs that require special training. Under the change, all “testers" 
with less than five years experience were required to “surrender” 
their plant wide seniority for purposes of promotions and demo
tions within the tester category unless and until they enrolled in, 
and successfully completed, specified technical courses of instruc
tion. However, plant-wide seniority continued to govern layoffs.

At the time the dual seniority system was adopted, the three 
petitioners believed that this change and the “forced sacrifice” of 
their plant-wide seniority rights constituted intentional sex dis
crimination that violated Title VII and that had immediate ad
verse effects on them both (1) on the very day that the change 
was adopted in July 19792 and (2) again when the two petitioners

2 Petitioners claimed that the dual seniority provisions for testers were 
created and negotiated with the purpose of protecting male jobs in the 
“traditionally male” tester category. The adoption of the change in July, 
1979 was claimed to have the immediate discriminatory effects of (1) 
compelling participation in the Tester “module” (training) program be
cause “this is what [we] had to do to get [our] time back;” (2) “discour
aging] women from entering the traditionally-male tester jobs” by re
quiring them to forfeit their plant-wide seniority; and (3) preventing 
female testers who were then testers (like petitioner Lorance) from ex
ercising their greater plant seniority against junior male testers. R. 68B 
at 44-45, 73-74; R. 68B at 20, 131-32; R. 16, 18, 20.

The Company flatly denies that the provisions requiring dual tester 
seniority lists were adopted for discriminatory reasons. Such systems are 
commonplace in industry. Their "basic premise" is “to promote ‘hands- 
on’ experience” and to assure that persons best equipped to perform 
technologically complex jobs are not forced into lower job grades when 
there are downgrades and layoffs. R. 68B-I, Ex. 3, p. 2; Ex. 21, p.2.

63



4

who were not already testers entered the tester universe in 1980 
and surrendered their plant-wide seniority.’ As one petitioner 
testified, “[ajlready by this time [1979] I had made the decision 
in my mind that what was going on was illegal and that I was 
going to . . .  let a court decide what was right or wrong." R. 68C 
at 22, 146 (emphasis added); see R. 68B at 98, 118. It was on this 
basis that petitioners led the “heated” opposition of certain fe
male employees to the change in 1979. App. 5a; R. 68C at 90, 98. 
Each petitioner testified that she understood that she had “sur
rendered” and “sacrifice[d]” plant-wide seniority for job move
ment purposes no later than “the day we went into testing.” 
R. 68A at 39, 40, 127; R. 68C at 132.

Yet petitioners did not file EEOC challenges when the “forced 
sacrifice” of their seniority and other alleged adverse conse
quences occurred. Instead, they chose “to live by it” (R. 68C at 
132) and began the training that would restore their plant-wide 
seniority, even though this training requirement was one of the 
claimed “discriminatory effects” of the new seniority system. See 
p. 3, n. 2, supra.

Petitioners did not file EEOC charges until after they were 
downgraded in late 1982. As petitioners concede, this downgrad
ing was merely the delayed consequence of the surrender of their 
plant-wide seniority that occurred years earlier. All agree that the 
revised seniority system is neutral on its face and has been applied 
in a nondiscriminatory fashion.

Petitioners’ claim that they are victims of sex discrimination 
rests on one and only one allegation: that the dual seniority sys
tem was “created and negotiated [in 1979] with the intent to 
advantage male workers over female workers.” Petition, p. 31; 
Complaint (R. 16), paras. 14-18. That claim had been stale for 
over three years by the time petitioners finally filed their charges.

3 Petitioner Lorance entered the tester category on October 30, 1978; 
Petitioner Bueschen on November 30, 1980; and Petitioner King on 
February 25, 1980. App. 5a.

64



5
2. In Title VII, Congress made a judgment that “most genuine 

claims of discrimination will be promptly asserted and that the 
costs associated with processing and defending stale or dormant 
claims outweigh [any] federal interest in guaranteeing a remedy.” 
Mohasco Corp. v. Silver. 447 U.S. 807, 825-26 (1980). This Court 
has held that the “proper focus [in determining when the 180 day 
limitations period begins to run] is upon the time of the discrimi
natory acts, not upon the time in which the consequences of the 
acts become most painful.” Delaware State College v. Ricks, 449 
U.S. 250, 258 (1980) (emphasis in original; citations omitted). See 
also United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).

In this case, the only “discriminatory acts” that petitioners 
alleged is the change in the seniority system which occurred in 
1979—or the forced sacrifices of petitioners' plant-wide seniority 
which occurred in 1980 at the latest. This change depleted what 
is “probably the most valuable capital asset that the worker 
‘owns,’ worth even more than the current equity in his home” 
(Wygant v. Jackson Board o f Education, 106 S.Ct. 1842, 1851 
(1986) (citations omitted))—and was thus immediately action
able under Delaware State College v. RicksA By contrast, the 
downgrades that occurred in late 1982 were merely the “conse
quences” of the dual seniority lists established some three years 
earlier. Thus, the Court of Appeals’ holding is simply a correct 
application of the criteria of Delaware State College v. Ricks to 
the unique facts of this case.

Furthermore, the terms and purposes of Section 703(h) inde
pendently required the dismissal of this case. To the extent courts 
have held that “each application” of a discriminatory policy or 
practice “constitutes a [separately] actionable wrong” (Petition, 4

4The fact that the plaintifTs had hoped that the 1979-1980 surrenders 
of seniority rights would not thereafter lead to demotions (see Petition, 
p. 8) did not prevent the limitations period from beginning to run on 
those dates; in Ricks, the Court held that the plaintiffs hope that his 
denial of tenure would be reversed in grievance proceedings, or other
wise, did not toll the limitations period until the date that he was dis
charged. See 449 U.S. at 260-61.

65



6
p. 13), they have done so in cases in which Title VII violations 
may be established by showing that the applications of the poli
cies or practices have a discriminatory impact (see Griggs v. Duke 
Power Co., 401 U.S. 424 (1971)) or in which neutral terms have 
been misapplied in a discriminatory fashion. See Boyd v. Madison 
County Mut. Ins. Co., 653 F.2d 1173, 1176-77 (7th Cir. 1981), 
cert, denied, 454 U.S. 1146 (1982). Because each application of 
the employment provision constitutes the evidence of discrimina
tion, the violation is proven by showing what happened within 
the limitations period; hence, there can be no “staleness concern” 
in these cases. Petition, p. 35-36, quoting Havens Realty Corp. v. 
Coleman, 455 U.S. 363, 380-381 (1982).*

Under Section 703(h), however, challenges to facially neutral 
seniority systems are an “exception” to the general rule of Griggs. 
Teamsters v. United States, 431 U.S. 324, 349 (1977). The effects 
of each application of the system are irrelevant. Pullman Stand
ard v. Swint, 456 U.S. 273, 290 (1982). The only inquiry is one of 
the parties’ “actual motive”: “[w]as the system adopted because 
of its [alleged sexually] discriminatory impact?” Id. (emphasis 
added). In this very case, therefore, the sole basis for petitioners’ 
claims is that the change was made with an improper motive. 
Thus, petitioners are reduced to making the extreme, and unten
able, argument that the adoption of the tester seniority provisions 
in 1979—and the parties’ “actual motive” in 1979—can be liti
gated “indefinitely,” be it 1982, 1988, or 2088. Proof of motive in 
1979 concerns events that occurred in 1979, and necessarily de
pends on the kinds of evidence whose probative value fades quick
ly with the passage of time. This case, therefore, epitomizes the 
litigation of stale claims that Title VII is designed to prevent, and 
the Seventh Circuit properly rejected petitioners’ argument. App. 
8a.______

5Thus, the Fourth Circuit was able to reject a timeliness challenge to 
a recent application of a seniority system only because it held (errone
ously) that Section 703(h) does not apply to seniority systems adopted 
after 1965 and that each application of post-Act systems can be chal
lenged under the Griggs discriminatory impact test. Patterson v. Ameri
can Tobacco Co., 634 F.2d 744 (4th Cir. 1980), rev'd on this ground, 456 
U.S. 63 (1982).

66



7

In this regard, the rule that is dictated by the terms and pur
poses of Section 703(h) is the same rule that applies under the 
parallel limitations provision of the National Labor Relations Act 
(see International Association o f Machinists v. NLRB, 362 U.S. 
411 (1960)): that a change in a facially neutral seniority system 
must be challenged within 180 (or 300) days of its adoption. 
Otherwise, the adoption of the allegedly discriminatory system 
“is the legal equivalent of a discriminatory act which occurred 
before the statute was passed” (United Air Lines, Inc. v. Evans, 
431 U.S. 553, 558 (1977)), and any future discriminatory effects 
are immunized from challenge by Section 703(h). See Teamsters 
v. United States, supra. Contrary to the petitioners’ claims, that 
position is compelled by the Court’s holding in American Tobacco 
Co. v. Patterson.6 There, the Court held that “taken together, 
Teamsters [by interpreting Section 703(h) ] and Evans" [by strict
ly enforcing the Title VII limitations period] “immunizes [all] 
seniority systems which perpetuate post-Act discrimination.” 
American Tobacco Co., 456 U.S. at 75. There is no distinction 
between systems adopted before the Act was passed and post-Act 
systems that are not challenged within 180 days of adoption. Id.

However, in this case, there is no need to address the question 
whether the limitations period begins to run on the date of adop
tion of the seniority system (as respondents argued below) or on 
the date the last of the three petitioners became testers and un
equivocally surrendered their seniority (as the Seventh Circuit

6The petition twice (pp. 23 n.ll & 31) quotes the Court’s statement 
that “the adoption of a seniority system which had not been applied 
would not give rise to a cause of action.” American Tobacco Co., 456 
U.S. at 69. However, the Court made this statement in rejecting the 
EEOC’s “proposed distinction between the application and adoption of 
a seniority system” and its contention that the adoption of a system 
could be challenged under the Griggs discriminatory impact test, where
as the application could not. Id. What the Court said was that this 
distinction “on its face makes little sense [because] [t]he adoption of 
seniority system which has not been applied would not give rise a cause 
of action” under Griggs; a discriminatory impact obviously cannot be 
shown until a system is applied. Id.

67



8
held). The claims of the three petitioners were untimely under 
either standard. The Seventh Circuit’s discussion of the issue was 
thus dictum.

3. This is the first case in which a federal court of appeals has 
applied the Title VII limitations period to a challenge to a se
niority system under the criteria of Section 703(h). The one Title 
VII case that involves seniority is the Fourth Circuit’s decision 
in American Tobacco. Patterson v. American Tobacco Co., 634 
F.2d 744 (4th Cir. 1980), rev'd, 456 U.S. 63 (1982). However, it 
rested on the erroneous premise that Section 703(h) does not 
apply in post-Act systems and that the Griggs’ discriminatory 
impact test does—and is irrelevant for that reason. See p. 6, n.5, 
supra. The other cases cited in the petition are similarly irrele
vant, and the Seventh Circuit’s decision does not conflict with the 
decision of any other court of appeals.

For example, the only court of appeals’ decision that purports 
to reject the Seventh Circuit’s holding is the First Circuit’s recent 
decision in Johnson v. General Electric Co., No. 87-1752, slip op. 
at 7-8 (1st Cir. Feb. 22, 1988). However, Johnson did not involve 
a challenge to a seniority system, and the First Circuit, ironically, 
acknowledged that the Seventh Circuit has applied the First Cir
cuit’s rule in nonseniority cases. See id. at 9, citing Heiar v. Craw
ford County, 746 F.2d 1190, 1194 (7th Cir. 1984), cert, denied, 
427 U.S. 1027 (1985). This underscores that the Seventh Circuit 
would probably have decided Johnson (and any other 
nonseniority case) the same way the First Circuit did.

The petition also relies on two cases in which the provisions of 
seniority systems were challenged under the Age Discrimination 
in Employment Act (ADEA). Cook v. Pan American World Air
ways, Inc., 771 F.2d 635 (2d Cir. 1985), cert, denied, 474 U.S. 
1109 (1986); Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 
1978), cert, denied, 441 U.S. 906 (1979). Quite apart from the fact 
that the ADEA and Title VII have somewhat different substan-

6R



9
tive provisions governing seniority systems (compare 42 U.S.C. 
§ 2000e-2(h), with 29 U.S.C. § 623(f) ), (lie discussion of the time
liness issue in each decision was dictum, and there is no reason 
to believe that either court would today decide the instant case 
differently than did the Seventh Circuit.

In Cook, the plaintiffs filed their EEOC charges within 300 
days of the date “when Pam Am first implemented the allegedly 
discriminatory seniority lists” (771 F.2d at 646) and “at the time 
[the] plaintiffs first bec[a]me subject” to the new system. App. 9a. 
Their claims were thus timely filed under the Seventh Circuit's 
holdings. See id. In Morelock, the discussion was dictum because 
the seniority system was found to be lawful (see 586 F.2d at 1105- 
07); more significantly, Morelock was decided before Delaware 
State College v. Ricks, and adopts the approach that this Court 
repudiated in that decision. Thus, there is no basis for any claim 
that the Sixth Circuit would disagree with the Seventh Circuit’s 
holding in this case now that Ricks is the law.

The Seventh Circuit's decision was correct and should not be 
disturbed. In any event, there is no square circuit conflict today, 
and a conflict may never arise. If it does, that will be the time to 
consider whether the issue warrants this Court’s consideration.

69



10
CONCLUSION

For the reasons stated, the 
should be denied.

O f Counsel:

Joseph Ramirez 
Robert W. Benson 
Juanita G. oe Roos

April 26, 1988 
♦Counsel of Record

petition for a writ of certiorari

Respectfully submitted,

Rf.x E. Lee*
David W. Carpenter 

Sidlf.y & Austin 
1722 Eye Street, N.W. 
Washington, DC- 20006 
(202) 429-4000

Gerald D. Skoninc;
Charles C. Jackson
Gary S. Kaplan 

Seyearth, Shaw, 
Fairweather & 
Geraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

Attorneys for Respondent
AT&T Technologies, Inc.

70



No. 87-1428

In The

S u p re m e  C o u rt  of tl)e H m tetJ s t a t e s
October Term, 1987

Patricia A. Lorance, et at.,
Petitioners,

v.
AT&T Technologies, Inc., et at.,

Respondents.

REPLY BRIEF IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT

Julius LeVonne Chambers 
NAACP Legal Defense And 

Educational Fund, Inc.
99 Hudson Street
Sixteenth Floor
New York, New York 10013

Barry Goldstein*
Sheila Y. Thomas 

NAACP Legal Defense And 
Educational Fund, Inc.

806 15th Street, N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278

Bridget Arimond 
14 West Erie Street 
Chicago, Illinois 60610

Attorneys for Petitioners
*Counsel of Record

71



TABLE OF AUTHORITIES

D a s e :

k b r a m s  v .  B a y l o r  C o l l e g e  
Df M e d i c i n e ,  8 0 5  F . 2 d  528  
( 5 t h  C l r . 1 9 8 6 )  .........................

f c m e r i c a n  T o b a c c o  Co .  v .  
P a t t e r s o n ,  4 5 6  U . S .  63 
( 1 9 8 2 )  ............................ ......................

B a z e m o r e  v .  F r i d a y ,  106  S .
C t . 3 0 0 0  ( 1 9 8 6 )  .........................

D e l a w a r e  S t a t e  C o l l e g e  v .  
R i c k s ,  4 4 9  U . S .  2 5 0  
( 1 9 8 2 )  ..................................................

EEOC v .  W e s t i n g h o u s e  E l e c t r i c  
C o r p . ,  7 2 5  F . 2 d  211  ( 1 9 8 3 ) ,  
c e r t . d e n i e d . 4 6 9  U . S .  8 2 0
( 1 9 8 4 )  .....................................................

F u r r  v .  AT&T T e c h n o l o g i e s ,  
I n c . , 824  F . 2d 1 53 7  ( 1 0 t h  
C l r .  1 9 8 7 )  .......................................

J o h n s o n  v .  G e n e r a l  E l e c t r i c ,  
8 4 0  F . 2 d  132  ( 1 s t  C l r .
1 9 8 8 )  .....................................................

L o r a n c e  v .  AT&T T e c h n o l o g i e s ,  
I n c . ,  827  F . 2 d  163  ( 7 t h  C l r .  
1 9 8 7 )  .....................................................

1

P a g e

8

1 2 - 1 3

8 - 1 0

9 - 1 0

7

8 

2

P a s s i m

72



Case :

M o r e l o c k  v .  NCR C o r p . ,  586  
F . 2 d  1 0 9 6  ( 6 t h  C i r .  1 9 7 8 ) ,  
c e r t . d e n i e d , 441  U . S .  9 0 6  
( 1 9 7 9 )  ..................................................

P a t t e r s o n  v  A m e r i c a n  
T o b a c c o  C o , ,  6 3 4  F . 2 d  744  
( 4 t h  C i r .  1 9 8 0 ) ,  v a c a t e d  o n  
o t h e r  g r o u n d s ,  4 5 6  U . S .  63 
( 1 9 8 2 )  ..................................................

U n i t e d  A i r  L i n e s ,  I n c .  v .  
E v a n s ,  431  U . S .  5 5 3  
( 1 9 7 7 )  ..................................................

S t a t u t e s :

Age D i s c r i m i n a t i o n  i n  
E m p l o y m e n t  A c t  o f  1 9 6 7 ,
29 U . S . C .  §§  621  e t  s e q .  .

T i t l e  V I I  o f  t h e  C i v i l  
R i g h t s  A c t  o f  1 9 6 4 ,
42 U . S . C .  §§ 2 0 0 0  e t  s e q .

11

P a g e

5

4

14

5

P a s s i m

73



No.  8 7 - 1 4 2 8

IN THE

UNITED STATES SUPREME COURT 

O c t o b e r  T e r m ,  1 9 8 7

PATRI CI A A.  LORANCE, e t  a l . ,

P e t i t i o n e r s ,

v s  .

AT&T TECHNOLOGIES,  I N C . ,  e t  a l ■,

R e s p o n d e n t s .

REPLY BRIEF IN SUPPORT OF P ET I TI ON FOR 
WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SEVENTH CIRCUIT 1

1 .  T h e  d e c i s i o n  i n  L o r a n c e  v ,  AT&T 

T e c h n o l o g i e s ,  I n c . , 8 2 7  F . 2 d  163  ( 7 t h  C i r .  

1 9 8 7 ) ,  c o n f l i c t s  w i t h  t h r e e  c i r c u i t s  w h i c h  

h a v e  r u l e d  t h a t  t h e  o p e r a t i o n  o f  a 

d i s c r i m i n a t o r y  s e n i o r i t y  s y s t e m  i s  a 

c o n t i n u i n g  v i o l a t i o n  w h i c h  g i v e s  r i s e  t o  a

74



2
c a u s e  o f  a c t i o n  o n  e a c h  o c c a s i o n  w h e n  i t  

i s  a p p l i e d ,  w i t h  o n e  c i r c u i t  t h a t  h e l d  

t h a t  e a c h  a p p l i c a t i o n  o f  a  d i s c r i m i n a t o r y  

c o l l e c t i v e  b a r g a i n i n g  p r o v i s i o n  w a s  a  new 

v i o l a t i o n ,  a n d  w i t h  a  f i f t h  c i r c u i t  w h i c h  

d e t e r m i n e d  t h a t  t h e  " m e r e  e x i s t e n c e "  o f  a  

d i s c r i m i n a t o r y  s y s t e m  d o e s  n o t  g i v e  r i s e  

t o  a  c a u s e  o f  a c t i o n  u n t i l  t h e  s y s t e m  i s  

a c t u a l l y  a p p l i e d .  P e t i t i o n  a t  1 6 - 2 4 .  

R e c e n t l y ,  t h e  F i r s t  C i r c u i t  a n a l y z e d  t h e  

c o n f l i c t  a n d  r e j e c t e d  t h e  L o r a n c e  r u l e ,  

w h i c h  r e q u i r e s  a n  e m p l o y e e  t o  f i l e  a n  

a d m i n i s t r a t i v e  c h a r g e  b e f o r e  a c t u a l l y  

s u f f e r i n g  h a r m  f r o m  a  d i s c r i m i n a t o r y  

p r a c t i c e .  " S u c h  a  r e q u i r e m e n t  w o u l d  b e  

u n r e a s o n a b l e ,  a s  w e l l  a s  u n d e s i r a b l e  f r o m  

a  p u b l i c  p o l i c y  p e r s p e c t i v e . "  ( F o o t n o t e  

o m i t t e d ) , J o h n s o n  v .  G e n e r a l  E l e c t r i c , 840  

F . 2 d  1 3 2 ,  1 3 6  ( 1 9 8 8 )  .

T h e  a t t e m p t s  o f  AT&T T e c h n o l o g i e s  t o  

e x p l a i n  a w a y  o r  l i m i t  t h e s e  c o n f l i c t s ,  i n

75



3

f a c t ,  s e r v e  o n l y  t o  u n d e r s c o r e  t h e m .  AT&T 

a r g u e s  t h a t  L o r a n c e  I s  t h e  f i r s t  c a s e  I n  

w h i c h  a n  a p p e l l a t e  c o u r t  a p p l i e d  " t h e  

T i t l e  V I I  l i m i t a t i o n s  p e r i o d  t o  a  

c h a l l e n g e  t o  a  s e n i o r i t y  s y s t e m . "  

O p p o s i t i o n  a t  8 .  No o t h e r  c i r c u i t  h a s  

r u l e d  l i k e  L o r a n c e  b e c a u s e  o t h e r  c i r c u i t s  

w h i c h  h a v e  d e c i d e d  u p o n  t h e  l e g a l i t y  o f  a  

s e n i o r i t y  s y s t e m  h a v e  r o u t i n e l y  t r e a t e d  

t h e  a p p l i c a t i o n  o f  a  s y s t e m  a s  a  

c o n t i n u i n g  o r  p r e s e n t  v i o l a t i o n .  As  s h o w n  

b y  s e n i o r i t y  s y s t e m  c a s e s  w h i c h  t h i s  C o u r t  

h a s  d e c i d e d ,  s u i t s  c h a l l e n g i n g  t h e  

l e g a l i t y  o f  a  s e n i o r i t y  s y s t e m  e s t a b l i s h e d  

y e a r s  e a r l i e r  h a v e  b e e n  r e g u l a r l y  

c o n s i d e r e d  t i m e l y  i f  t h e r e  w a s  a  c u r r e n t  

a p p l i c a t i o n  o f  t h e  s y s t e m .  P e t i t i o n  a t  

2 9 - 3 2  .

T h e  r e s p o n d e n t  a t t e m p t s  t o  

d i s t i n g u i s h  t h e  t h r e e  a p p e l l a t e  c o u r t  

d e c i s i o n s  t h a t  r u l e d  - -  c o n t r a r y  t o  t h e

76



4

S e v e n t h  C i r c u i t  - -  t h a t  d i s c r i m i n a t o r y  

s e n i o r i t y  s y s t e m s  a r e  c o n t i n u i n g  

v i o l a t i o n s .  T h e  F o u r t h  C i r c u i t  d e t e r m i n e d  

t h a t  s u c h  s y s t e m s  a r e  " t r u l y  ' c o n t i n u i n g '  

v i o l a t i o n s  o f  T i t l e  V I I . "  P a t t e r s o n  v .  

A m e r i c a n  T o b a c c o  C o m p a n y , 6 3 4  F . 2 d  7 4 4 ,  

751 ( 1 9 8 0 ) ,  v a c a t e d  o n  o t h e r  g r o u n d s , 4 5 6  

U . S .  6 3  ( 1 9 8 2 ) .  T h e  r e s p o n d e n t  a s s e r t s  

t h a t  P a t t e r s o n  i s  i n a p p l i c a b l e  b e c a u s e  t h e  

a p p e l l a t e  c o u r t  e r r e d  i n  a p p l y i n g  a  

d i s c r i m i n a t o r y  i m p a c t  s t a n d a r d  r a t h e r  t h a n  

r e q u i r i n g  t h a t  a  s e n i o r i t y  s y s t e m  may b e  

h e l d  u n l a w f u l  o n l y  i f  t h e  s y s t e m  w a s  

c r e a t e d  o r  m a i n t a i n e d  w i t h  a n  I n t e n t  t o  

d i s c r i m i n a t e .  O p p o s i t i o n  a t  8 .  I n  o r d e r  

t o  a v o i d  t h e  c o n f l i c t  b e t w e e n  L o r a n c e  a n d  

P a t t e r s o n , t h e  r e s p o n d e n t  i s  f o r c e d  t o  

r e l y  u p o n  a n  u n p r e c e d e n t e d  i n t e r p r e t a t i o n  

o f  t h e  T i t l e  V I I  p r o c e d u r a l  r e q u i r e m e n t s ,  

t h a t  d i f f e r e n t  s t a n d a r d s  f o r  f i l i n g  a n  

a d m i n i s t r a t i v e  c h a r g e  a p p l y  d e p e n d i n g  u p o n



5

w h e t h e r  t h e  t h e o r y  o f  t h e  c a s e  I s  

d i s c r i m i n a t o r y  i m p a c t  o r  t r e a t m e n t .  S e e  

a l s o . n . 3 ,  i n f r a .

T h e  r e s p o n d e n t  i n c o r r e c t l y  

d i s t i n g u i s h e s  t w o  o t h e r  s e n i o r i t y  c a s e s  

b e c a u s e  t h e  s y s t e m s  w e r e  c h a l l e n g e d  u n d e r  

t h e  A g e  D i s c r i m i n a t i o n  i n  E m p l o y m e n t  A c t  

a n d  t h e  r u l i n g s  w e r e  d i c t a . O p p o s i t i o n  a t  

8 - 9 .  F i r s t ,  t h e  C o u r t  h a s  a p p l i e d  t h e  

s a m e  s t a n d a r d s  t o  t h e  f i l i n g  r e q u i r e m e n t s  

o f  t h e  A D E A  a s  t o  t h e  T i t l e  V I I  

r e q u i r e m e n t s .  P e t i t i o n  a t  1 7  n . 8 .

S e c o n d ,  t h e  f a v o r a b l e  p r o c e d u r a l  r u l i n g  

f o r  t h e  p l a i n t i f f  i s  n o t  d 1 c  t u r n  i n  

M o r e l o c k  V .  NCR C o r p .  , 5 8 6  F . 2 d  1 0 9 6  ( 6 t h

C l r . 1 9 7 8 ) ,  c e r t . d e n i e d , 4 4 1  U . S .  9 0 6

( 1 9 7 9 ) ,  b e c a u s e  t h e  s y s t e m  w a s  f o u n d  

l a w f u l .  I f  t h e  p r o c e d u r a l  r u l i n g  w e r e  

o t h e r w i s e ,  t h e  c o u r t  w o u l d  n e v e r  h a v e  

r e a c h e d  t h e  m e r i t s  o f  t h e  s e n i o r i t y  

s y s t e m .

78



6
M o s t  i m p o r t a n t l y ,  a l l  o f  r e s p o n d e n t ' s  

a t t e m p t s  t o  a v o i d  t h e s e  c o n f l i c t s  f a i l  

b e c a u s e  t h e  r e s p o n d e n t  d i d  n o t  a c c o u n t  f o r  

t h e  s t r i k i n g  n e w  r u l e  e s t a b l i s h e d  i n  

L o r a n c e  . T h e  d e c i s i o n  i n  L o r a n c e  

e s t a b l i s h e s  t h a t  a  p e r s o n  who may i n  t h e  

f u t u r e  s u f f e r  h a r m  f r o m  a  n e w l y  

I m p l e m e n t e d  p r a c t i c e  m u s t  f i l e  a  l a w s u i t  

b e f o r e  h e r  j o b  p o s i t i o n  i s  e f f e c t e d .  F i v e  

c i r c u i t s ,  I n c l u d i n g  t h r e e  w h i c h  r u l e d  

d i r e c t l y  o n  s e n i o r i t y  s y s t e m s ,  h a v e  

e s t a b l i s h e d  a  c o n t r a r y  r u l e .  T h e  c o n f l i c t  

p l a c e s  p o t e n t i a l  v i c t i m s  o f  d i s c r i m i n a t o r y  

p r a c t i c e s  a n d  t h e  F e d e r a l  e n f o r c e m e n t  

a g e n c y ,  t h e  E q u a l  E m p l o y m e n t  O p p o r t u n i t y  

C o m m i s s i o n ,  s e e  P e t i t i o n  a t  2 4 - 2 8 ,  i n  a  

d i f f i c u l t  p o s i t i o n  f o r  d e t e r m i n i n g  whe n  

a d m i n i s t r a t i v e  c h a r g e s  a n d  l a w s u i t s  m u s t  

b e  f i l e d .

AT&T T e c h n o l o g i e s  f a i l s  t o  r e s p o n d  t o

79



7

t h e  o t h e r  c o n f l i c t s . 1 P e t i t i o n  a t  2 0 - 2 4 .  

C o n t r a r y  t o  t h e  a s s u m p t i o n  o f  t h e  

r e s p o n d e n t ,  t h e r e  i s  n o  l o g i c a l  b a s i s  f o r  

l i m i t i n g  t h e  L o r a n c e  r u l e  t o  s e n i o r i t y  

s y s t e m s .  O t h e r  p r a c t i c e s ,  s u c h  a s  t h e  

i m p o s i t i o n  o f  a  d i s c r i m i n a t o r y  p o l i c y  

c o n t r o l l i n g  e a r l y  r e t i r e m e n t  b e n e f i t s ,  

EEOC v .  W e s t l n q h o u 8 e  E l e c t r i c  C o r p . , 725  

F . 2 d  2 1 1 ,  2 1 9  ( 1 9 8 3 ) ,  c e r t ,  d e n i e d , 4 6 9  

U . S .  8 2 0  ( 1 9 8 4 ) ,  o r  c r i t e r i a  f o r  j o b

1 I n  o r d e r  t o  s u p p o r t  i t s  a r g u m e n t  
t h a t  t h e r e  i s  n o  c o n f l i c t ,  t h e  r e s p o n d e n t  
r e f e r s  t o  o t h e r  S e v e n t h  C i r c u i t  d e c i s i o n s  
w h i c h  a p p l i e d  t h e  c o n t i n u i n g  v i o l a t i o n  
t h e o r y .  O p p o s i t i o n  a t  1 n . l ,  8 .  H o w e v e r ,  
t h e  S e v e n t h  C i r c u i t  d e f i n e d  t h e  s c o p e  o f  
t h e  p r i o r  o p i n i o n s :  a  c o n t i n u i n g
v i o l a t i o n  may o c c u r  " w h e n  a n  e m p l o y e r  a c t s  
p u r s u a n t  t o  a  s e n i o r i t y  s y s t e m  t h a t  i s  
f a c i a l l y  d i s c r i m i n a t o r y "  o r  i f  i t  u s e s  i t s  
" d i s c r e t i o n  . . .  i n  a  d i s c r i m i n a t o r y  
m a n n e r . "  A p p .  9 a .  A c c o r d i n g l y ,  i n  
L o r a n c e  t h e  c i r c u i t  l i m i t e d  t h e  
d e f i n i t i o n s  o f  a  p r e s e n t  a c t  o f  
d i s c r i m i n a t i o n  a n d  c o n t i n u i n g  v i o l a t i o n  i n  
a  m a n n e r  w h i c h  s q u a r e l y  c o n f l i c t s  w i t h  t h e  
r u l i n g s  o f  o t h e r  c i r c u i t s .  I t  I s  b e s i d e  
t h e  p o i n t  t o  c o n j e c t u r e ,  a s  r e s p o n d e n t  
d o e s ,  O p p o s i t i o n  a t  8 ,  how a n o t h e r  c i r c u i t  
m a y  r e a d  S e v e n t h  C i r c u i t  o p i n i o n s  w h i c h  
w e r e  I s s u e d  p r i o r  t o  L o r a n c e .

80



8

a s s i g n m e n t ,  A b r a m s  v .  B a y l o r  C o l l e g e  o f  

M e d i c i n e , 8 0 5  F . 2 d  5 2 8  ( 5 t h  C i r .  1 9 8 6 ) ,  o r  

p r o m o t i o n a l  c r i t e r i a ,  F u r r  v .  AT&T 

T e c h n o l o g i e s ,  I n c . , 8 2 4  F . 2 d  1 5 3 7  ( 1 0 t h  

C i r .  1 9 8 7 ) ,  m a y  e f f e c t ,  j u s t  l i k e  t h e  

s e n i o r i t y  p r a c t i c e  i n  L o r a n c e , p o s s i b l e  

f u t u r e  e m p l o y m e n t  o p p o r t u n i t i e s  w i t h o u t  

a n y  i m m e d i a t e  j o b  c o n s e q u e n c e .

2 .  T h e  S e v e n t h  C i r c u i t  f a i l e d  t o  

f o l l o w  p r i o r  d e c i s i o n s  o f  t h i s  C o u r t  b y  

r u l i n g  t h a t  t h e  a p p l i c a t i o n  o f  " a  f a c i a l l y  

n e u t r a l  b u t  d i s c r i m i n a t o r y  s e n i o r i t y  

s y s t e m "  w a s  n o t  a  v i o l a t i o n  o f  t h e  f a i r  

e m p l o y m e n t  l a w  f r o m  w h i c h  a  v i c t i m  c o u l d  

f i l e  a  t i m e l y  a d m i n i s t r a t i v e  c h a r g e .  I n  

p a r t i c u l a r ,  t h i s  C o u r t  h a s  r u l e d  t h a t  e a c h  

a p p l i c a t i o n  o f  a  d i s c r i m i n a t o r y  p a y  s y s t e m  

c r e a t e d  y e a r s  e a r l i e r  " i s  a  w r o n g  

a c t i o n a b l e  u n d e r  T i t l e  V I I , "  B a z e m o r e  v .

81



9

F r i d a y , 1 0 6  S .  C t .  3 0 0 0 ,  3 0 0 6 - 0 7  ( 1 9 8 6 ) . 2 

AT&T f a l l s  t o  m e n t i o n  B a z e m o r e . t h e  m o s t  

p e r t i n e n t  S u p r e m e  C o u r t  a u t h o r i t y ,  b u t  

r a t h e r  r e l i e s  u p o n  D e l a w a r e  S t a t e  C o l l e g e  

V.  R i c k s . 4 4 9  U . S .  2 5 0  ( 1 9 8 0 ) .

T h e  f a c t u a l  s i t u a t i o n  I n  R i c k s  i s  

f u n d a m e n t a l l y  d i f f e r e n t  t h a n  t h e  s i t u a t i o n

2 AT&T a s s e r t s  t h a t  ” [ t ] o  t h e  e x t e n t  
c o u r t s  h a v e  h e l d  t h a t  ' e a c h  a p p l i c a t i o n '  
o f  a d i s c r i m i n a t o r y  p o l i c y  ' c o n s t i t u t e s  a  
[ s e p a r a t e l y ]  a c t i o n a b l e  w r o n g '  t h e y  h a v e  
d o n e  s o  I n  c a s e s "  b a s e d  u p o n  t h e  
" d i s c r i m i n a t o r y  I m p a c t "  t h e o r y  o r  " i n  
w h i c h  n e u t r a l  t e r m s  h a v e  b e e n  m i s a p p l i e d  
i n  a  d i s c r i m i n a t o r y  f a s h i o n . "  O p p o s i t i o n  
a t  5 - 6 .  B a z e m o r e  i s  t o  t h e  c o n t r a r y .  T h e  
C o u r t  h e l d  t h a t  a  p a y  s y s t e m  a p p l i e d  i n  a  
f a c i a l l y  n e u t r a l  m a n n e r  w a s  u n l a w f u l  
b e c a u s e  i t  w a s  b a s e d  u p o n  a  w a g e  s t r u c t u r e  
t h a t  h a d  b e e n  i n f l u e n c e d  b y  i n t e n t i o n a l  
d i s c r i m i n a t i o n .  E v e n  t h o u g h  p a y  d e c i s i o n s  
w e r e  m a d e  o n  a  r a c i a l l y  n e u t r a l  b a s i s  
s i n c e  1 9 6 5 ,  t h e  s y s t e m  w a s  i l l e g a l  b e c a u s e  
" s o m e  p r e - e x i s t i n g  s a l a r y  d i s p a r i t i e s  
c o n t i n u e  t o  l i n g e r  o n . "  1 0 6  S .  C t .  a t  
3 0 0 6 .  S i m i l a r l y ,  t h e  s e n i o r i t y  s y s t e m  a t  
AT&T h a s  b e e n  a p p l i e d  i n  a  f a c i a l l y  
n e u t r a l  m a n n e r  b u t  t h e  d i s c r i m i n a t o r y  
r e s u l t s  o f  t h e  1 9 7 9  s e n i o r i t y  c h a n g e  i n  
t h e  s e n i o r i t y  s y s t e m  w h i c h  s t r i p p e d  
w o r k e r s  o f  t h e i r  p l a n t  s e n i o r i t y  c o n t i n u e d  
t o  " l i n g e r  o n "  a n d  c a u s e d  t h e  1 9 8 2  j o b  
d e m o t i o n s  o f  t h e  p l a i n t i f f s .

82



10
I n  L o r a n c e . P e t i t i o n  a t  3 3 .  T h e  

a l l e g e d l y  d i s c r i m i n a t o r y  t e n u r e  d e c i s i o n  

l e d  t o  " a  d e l a y e d  b u t  i n e v i t a b l e "  

t e r m i n a t i o n  o f  R i c k s '  e m p l o y m e n t .  < 4 9  

U . S .  a t  2 5 7 - 5 8 .  A t  AT&T t h e  j o b  d e m o t i o n s  

o f  t h e  p l a i n t i f f s  w e r e  n o t  " I n e v i t a b l e , "  

b u t  d e p e n d e d  u p o n  t h e  c o n t i n u e d  

a p p l i c a t i o n  o f  t h e  d i s c r i m i n a t o r y  

s e n i o r i t y  s y s t e m .  I t  i s  t h e  s u b s e q u e n t  

a p p l i c a t i o n  o f  t h e  s e n i o r i t y  s y s t e m ,  l i k e  

t h e  a p p l i c a t i o n  o f  t h e  p a y  s y s t e m  i n  

B a z e m o r e . t h a t  m a k e s  t h e  j o b  d e m o t i o n s  i n  

L o r a n c e  a  c u r r e n t  a c t i o n a b l e  w r o n g .

3 .  U n d e r  t h e  l o w e r  c o u r t ' s  r u l e  t h e  

p e t i t i o n e r s  w o u l d  h a v e  h a d  t o  f i l e  

a d m i n i s t r a t i v e  c h a r g e s  w i t h i n  3 0 0  d a y s  o f  

t h e  i m p o s i t i o n  o f  t h e  d i s c r i m i n a t o r y  

s e n i o r i t y  s y s t e m  a n d  a  l a w s u i t  f o l l o w i n g  

t h e  c o m p l e t i o n  o f  t h e  a d m i n i s t r a t i v e  

p r o c e s s  e v e n  t h o u g h  t h e  s e n i o r i t y  s y s t e m  

h a d  h a d  n o  a d v e r s e  e f f e c t  a n d  may n e v e r

83



11
h a v e  h a d  a n y  a d v e r s e  e f f e c t  o n  t h e i r  j o b  

p o s i t i o n .  P e t i t i o n  a t  3 7 - 3 8 .  M o r e o v e r ,  

a s  A T & T  T e c h n o l o g i e s  a d m i t s ,  t h e  

d i s c r i m i n a t o r y  s e n i o r i t y  f o r f e i t u r e  

p r o v i s i o n  l a s t s  f o r  a p p r o x i m a t e l y  f i v e  

y e a r s  u n t i l  t h e  p e t i t i o n e r s  c o m p l e t e d  

c e r t a i n  " c o u r s e s  o f  i n s t r u c t i o n . "  

O p p o s i t i o n  a t  3 .  N e v e r t h e l e s s ,  AT&T 

a r g u e s  t h a t  " [ t ] h e  f a c t  p l a i n t i f f s  h a d  

h o p e d  t h a t  t h e  . . .  s u r r e n d e r !  3 o f  

s e n i o r i t y  r i g h t s  w o u l d  n o t  . . .  l e a d  t o  

d e m o t i o n !  ] "  d o e s  n o t  m e a n  t h a t  p l a i n t i f f s  

d o  n o t  h a v e  t o  f i l e  a  l a w s u i t  b e f o r e  t h e  

s e n i o r i t y  s y s t e m  c a u s e s  t h e i r  j o b  

d e m o t i o n .  I d . a t  5 n . 4 .

S i n c e  t h e  d i s c r i m i n a t o r y  s e n i o r i t y  

f o r f e i t u r e  e n d s  a f t e r  a p p r o x i m a t e l y  f i v e  

y e a r s ,  t h e  S e v e n t h  C i r c u i t  r u l e  w o u l d  

r e q u i r e  t h e  p l a i n t i f f s  t o  f i l e  a  l a w s u i t  

p r i o r  t o  a n y  a d v e r s e  j o b  a c t i o n  d e s p i t e  

t h e  f a c t  t h a t  t h e  l a w s u i t  m i g h t  h a v e



12
b e c o m e  m o o t  w h e n  t h e  d i s c r i m i n a t o r y  

f o r f e i t u r e  p r o v i s i o n  e n d e d  a f t e r  f i v e  

y e a r s .  I t  i s  h a r d  t o  i m a g i n e  a  r u l e  m o r e  

c o u n t e r - p r o d u c t i v e  t o  t h e  e f f i c i e n t  

a d m i n i s t r a t i o n  o f  t h e  f a i r  e m p l o y m e n t  l a w s  

t h a n  t o  r e q u i r e  w o r k e r s  t o  f i l e  f e d e r a l  

l a w s u i t s  b e f o r e  t h e i r  j o b  p o s i t i o n s  h a v e  

b e e n  a d v e r s e l y  a f f e c t e d  a n d  w h e r e  t h e r e  i s  

a  s u b s t a n t i a l  l i k e l i h o o d  t h a t  t h e i r  c l a i m s  

may b e c o m e  m o o t  b e c a u s e  t h e  d i s c r i m i n a t o r y  

p r a c t i c e  m a y  e n d  b e f o r e  I t  i s  e v e r  

I m p l e m e n t e d . 3

3 M o r e o v e r ,  t h r e e  c i r c u i t s  h a v e  
h e l d ,  c o n t r a r y  t o  t h e  S e v e n t h  C i r c u i t ,  
t h a t  t h e  " m e r e  e x i s t e n c e "  o f  a  
d i s c r i m i n a t o r y  p o l i c y  d o e s  n o t  p r o v i d e  t h e  
b a s i s  f o r  a  c a u s e  o f  a c t i o n .  P e t i t i o n  a t  
2 2 - 2 4 .  T h e  R e s p o n d e n t  f a i l s  t o  a d d r e s s  
t h i s  c o n f l i c t  b u t  a t t e m p t s  t o  d i s t i n g u i s h  
t h i s  C o u r t ' s  d e c i s i o n  t o  t h e  s a m e  e f f e c t  
t h a t  " [ t ] h e  a d o p t i o n  o f  a  s e n i o r i t y  s y s t e m  
w h i c h  h a s  n o t  b e e n  a p p l i e d  w o u l d  n o t  g i v e  
r i s e  t o  a  c a u s e  o f  a c t i o n . "  A m e r i c a n  
T o b a c c o  C o .  v .  P a t t e r s o n , 4 5 6  U . S .  6 3 ,  69 
( 1 9 8 2  ) . O p p o s i t i o n  a t  7 n . 6 .  T h e  
R e s p o n d e n t ' s  a s s e r t i o n  t h a t  t h e  P a t t e r s o n  
r u l e  o n l y  a p p l i e s  t o  d i s p a r a t e  i m p a c t  
c a s e s  f a i l s  i n  l i g h t  o f  t h e  C o u r t ' s  
a s s e r t i o n  t h a t  " [ s ] u c h  a p p l i c a t i o n  i s  n o t

85



1 3

4 .  T h e  r e s p o n d e n t  I m p l i c i t l y  

r e j e c t s  t h e  s t a n d a r d  o f  t h e  S e v e n t h  

C i r c u i t  b y  r e q u i r i n g  t h o s e  p e r s o n s  h a r m e d  

o r  w h o  m a y  I n  t h e  f u t u r e  b e  h a r m e d  b y  a  

d i s c r i m i n a t o r y  s e n i o r i t y  s y s t e m  t o  

c h a l l e n g e  t h e  s y s t e m  w i t h i n  3 0 0  d a y s  o f  

I t s  I m p o s i t i o n .  O p p o s i t i o n  a t  7 .  T h e  

r e s p o n d e n t ' s  p r o p o s e d  r u l e  l i k e  t h e  

S e v e n t h  C i r c u i t  r u l e  - -  w h i c h  d o e s  n o t  

c o m m e n c e  t h e  r u n n i n g  o f  t h e  s t a t u t e  o f  

l i m i t a t i o n s  u n l e s s  t h e  w o r k e r s  w e r e  

e m p l o y e d  I n  t h e  a f f e c t e d  j o b  c a t e g o r y  a n d  

k n e w o r  s h o u l d  h a v e  k n o w n  t h a t  t h e  s y s t e m  

w a s  d i s c r i m i n a t o r y  - -  r u n s  c o n t r a r y  t o  

t h i s  C o u r t ' s  a p p l i c a t i o n  o f  T i t l e  V I I  t o  

s e n i o r i t y  s y s t e m s .  A w o r k e r  h a r m e d  b y  a  

" c u r r e n t  o p e r a t i o n "  o f  a  d i s c r i m i n a t o r y

i n f i r m  u n d e r  § 7 0 3 ( h )  u n l e s s  i t  i s  
a c c o m p a n i e d  b y  a  d i s c r i m i n a t o r y  p u r p o s e . "  
( E m p h a s i s  a d d e d ) .  I d . a t  7 0 .  T h u s ,  t h e  
C o u r t  r e f e r r e d  t o  c a s e s ,  l i k e  L o r a n c e , 
w h i c h  i n v o l v e  t h e  a l l e g a t i o n  o f  
d i s c r i m i n a t o r y  I n t e n t .

86



1 4

s e n i o r i t y  s y s t e m  m a y  c h a l l e n g e  t h e  

l e g a l i t y  o f  t h e  s y s t e m .  U n i t e d  A i r  L i n e s ,  

I n c .  V.  E v a n s , 431  U . S .  5 5 3 ,  5 6 0  ( 1 9 7 7 ) .  

R e p e a t e d l y ,  t h e  C o u r t  h a s  d e t e r m i n e d  t h a t  

a  c u r r e n t  o p e r a t i o n  o f  a  f a c i a l l y  n e u t r a l  

s e n i o r i t y  s y s t e m  m a y  t r i g g e r  a  f a i r  

e m p l o y m e n t  a c t i o n  t h a t  w i l l  t u r n  u p o n  

w h e t h e r  t h e  a d o p t i o n  o f  t h e  s y s t e m  t h a t  

o c c u r r e d  y e a r s  e a r l i e r  w a s  a f f e c t e d  b y  

i n t e n t i o n a l  d i s c r i m i n a t i o n .  P e t i t i o n  a t  

2 9 - 3 2 .

T h e  r e s p o n d e n t  r e j e c t s  t h e  a p p e l l a t e  

c o u r t ' s  s t a n d a r d  w h i l e  a t  t h e  s a m e  t i m e  i t  

a r g u e s  t h a t  t h e  C o u r t  s h o u l d  n o t  r e v i e w  

t h e  d e c i s i o n  w h i c h  r e l i e d  u p o n  t h a t  

s t a n d a r d .  H o w e v e r ,  t h e  r e s p o n d e n t ' s  

p o s i t i o n  i s  m a n d a t e d  b y  t h e  f a c t  t h a t  i t  

r e p e a t e d l y  c r i t i c i z e s  t h e  p e t i t i o n e r s '  

p o s i t i o n  a s  i n e v i t a b l y  l e a d i n g  t o  t h e  

l i t i g a t i o n  o f  s t a l e  c l a i m s ,  O p p o s i t i o n  a t  

4 - 6 .  S i n c e  u n d e r  t h e  S e v e n t h  C i r c u i t ' s



1 5

r u l e  a n  e m p l o y e e  t r a n s f e r r i n g  i n t o  a  

t e s t e r  j o b  o r  a n  e m p l o y e e  who  d i d  n o t  h a v e  

r e a s o n  t o  k n o w  t h a t  t h e  s y s t e m  w a s  

d i s c r i m i n a t o r y  may  c h a l l e n g e  t h e  s y s t e m ,  

t h e  s y s t e m  may  b e  t i m e l y  c h a l l e n g e d  y e a r s  

a f t e r  I t  I s  I m p l e m e n t e d .  T h e  L o r a n c e  r u l e  

s e r v e s  n e i t h e r  t h e  p u r p o s e  o f  r i d d i n g  t h e  

w o r k p l a c e  o f  d i s c r i m i n a t o r y  p r a c t i c e s  a n d  

t h e i r  e f f e c t s ,  w h i c h  t h e  p e t i t i o n e r s  

a d v o c a t e ,  n o r  t h e  p u r p o s e  o f  p r e v e n t i n g  

" s t a l e "  c l a i m s ,  w h i c h  t h e  r e s p o n d e n t  

a d v o c a t e s .

T h e  L o r a n c e  d e c i s i o n  c o n f l i c t s  w i t h  

d e c i s i o n s  o f  t h i s  C o u r t  a n d  w i t h  o t h e r  

a p p e l l a t e  d e c i s i o n s ,  u n j u s t l y  d e p r i v e s  

f e m a l e  w o r k e r s  i n  t h e  AT&T p l a n t  o f  a n  

o p p o r t u n i t y  t o  c h a l l e n g e  a  s e n i o r i t y  

s y s t e m  i n t e n t i o n a l l y  d e s i g n e d  t o  

d i s c r i m i n a t e ,  a n d  s e r v e s  n o  p u r p o s e



1 6

c o n s i s t e n t  w i t h  t h e  f a i r  a n d  efficient 

i m p l e m e n t a t i o n  o f  t h e  e q u a l  o p p o r t u n i t y  

l a w s .

R e s p e c t f u l l y  s u b m i t t e d ,

J ULI US  LeVONNE CHAMBERS 
NAACP L e g a l  D e f e n s e  a n d  

E d u c a t i o n a l  F u n d ,  I n c .  
S i x t e e n t h  F l o o r  
99  H u d s o n  S t r e e t  
New Y o r k ,  New Y o r k  1 0 0 1 3

BARRY GOLDSTEIN*
SHEILA Y.  THOMAS 
NAACP L e g a l  D e f e n s e  a n d  

E d u c a t i o n a l  F u n d ,  I n c .
8 0 6  1 5 t h  S t r e e t ,  N.W. 
S u i t e  940
W a s h i n g t o n ,  D . C .  2 0 0 0 5  
( 2 0 2 )  6 3 8 - 3 2 7 8

BRIDGET ARIM0ND
14 W e s t  E r i e  S t r e e t  
C h i c a g o ,  I l l i n o i s  6 0 6 1 0

COUNSEL FOR PETITIONERS

* C o u n s e l  o f  R e c o r d

89



No. 87-1428

3)n ttje S u p r e m e  C ou rt of tlje i l iu t e b  s t a t e s ;

Patricia A. Lorance, ei ai... petittoners

AT&T Technologies, Inc., et al.

ON PETITION TOR A WRIT OF CERTIORARI  
TO THE UNITED STATES COURT OE APPEALS  

TOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

October Term, 1988

v.

C h a r i es F ried  
Solicitor General

Wm. Bra d fo rd  R eyn o i ds 
Assistant Attorney General

Do n a ld  B. A yer  
Deputy Solicitor General

C h a r le s  A . S hanor  
General Counsel

R ic h a r d  J. L a zaru s  
Assistant to the Solicitor

General
G w en d o lyn  Y oung R eams 

Associate General Counsel L inda  F. T home 
Attorneys

Da vid  K. Flyn n

V in cen t  J. B la ckw o o d  
Assistant General Counsel Department o f Justice 

Washington, D C. 20530 
(202) 633-2217

St ep h e n  P. O’Ro u rke  
Attorney
Equal Employment

Opportunity Commission
Washington, D.C. 20507

91



QUESTION PRESENTED

Whether in the case of an employment discrimination charge 
alleging that the complainant was demoted pursuant to a 
facially-neutral, but intentionally discriminatory seniority 
policy, the statute of limitations of Section 706(e) of Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. 2(M)Oe-5(e), begins to run 
when the employer first adopts the seniority policy, when the 
employee first becomes subject to the policy, or when the 
employee is first notified of the demotion.

( I )

92



table oir c o n  tin is
Page

Statement ...............................................................................  I
Discussion...............................................................................  6
Conclusion .............................................................................  19

TABLE OF AUTHORITIES
Cases:

Abrams v. Baylor College of Medicine, 805 F.2d 528 (5tli
Cir. 1986)...................................................................... 12 13

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . .  17
Association Against Discrimination in Employment, Inc. 

v. City o f Bridgeport, 647 F.2d 256 (2d Cir. 1981), cert.
denied, 455 U.S. 988 (1982)..........................................  13

Bazemorex. Friday, 478 U.S. 385 (1986).................. 7, 8, IT 12
California Brewers Ass’n v. Bryant, 444 U.S. 598 (1980). . 18
Chardon v. Fernandez, 454 U.S. 6 (1981)........................ 8
Cook v. Pan American World Airways, Inc., 771 F.2d 

635 (2d Cir. 1985), cert, denied, 474 U.S. 1109 (1986).. 14,
15, 16

Crosland v. Charlotte Eye, Ear <8 Throat Hospital, 686
F.2d 208 (4th Cir. 1982)...............................................  13

Delaware State College v. Ricks, 449 U.S. 250 (1980) . . . .  6, 7,
8, 9, 10, 16

EEOC v. Commercial Office Products Co., No. 86-1696
(May 16, 1988)............................................................  6, 14

EEOC v. Westinghouse Electric Corp., 725 F.2d 211 (3d
Cir. 1983), cert, denied, 469 U.S. 820(1984)................  13

Florida v. Long, No. 86-1685 (June 23, 1988)....................  7
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ....................................................................... 7, 10, 17
Furr v. AT&T Technologies, Inc., 824 F.2d 1537 (10th

Cir. 1987).....................................................................  12
Hazelwood School District v. United States, 433 U.S.

299 (1977) ...................................................................  II
Heiar v. Crawford County, 746 F 2d 1190 (7th Cir.

1984) ...........................................................................  8
Humphrey v. Moore, 375 U.S. 335 (1964).........................  17
International /lss’n of Machinists v. NLRB, .362 U.S.

411 (I960) .................................................................... U

( H I )

93



I V

Cases —Continued: Page
International Brotherhood o f Teamsters v. United States,

431 U.S. 324 (1977)............................... ..................... 10, II
Johnson v. Genera/ Electric, 840 F,2d 132 (1st Cir.

1988) .................... ....................................... .............  12
McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982).........  13
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978),

cert, denied, 441 U.S. 906 (1979).................................  14, 16
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)............... 18
Oscar Mayer & Co. v. Evans, 441 U.S. 750(1979)...........  14-15
Patterson v. American Tobacco Co., 634 F.2d 744 (4th

Cir. 1980), vacated, 456 U.S. 63 (1982)........... .......... . 9, 10,
14, 15, 17, 18

Pullman-Standard v. Swint, 456 U.S. 273 (1982) .............. 10, 11
Satz v. ITT Financial Corp., 619 F.2d 738 (8th Cir.

1980) ............................................................   13
Torres v. Wisconsin Dep’t o f Health & Social Services,

838 F.2d 944 (7th Cir. 1988).......................................  13
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977).......  6, 7,

8, 10, 12
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.), 

cert, denied, 459 U.S. 971 (1982)................................   13

Statutes:
Age Discrimination in Employment Act of 1967 § 4(0(2),

29 U.S.C. 623(0(2).......................................................  15
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et 

seq.................................................................................. 3, 9
§ 703(h), 42 U.S.C. 2000e-2(h)............................... 6, 9, 10,

11, 15, 16, 17
§ 706(e), 42 U.S.C. 2000e-5(e)................................. 3, 6, 7,

8, 9, 10, 17, 18
§ 706(0, 42 U.S.C. 2000e-5(0 ■ • • • ............................  3

National Labor Relations Act, 29 U.S.C. 160(b)............. II



3n tfje Supreme Court of Uje cMniteb fetalcEt
O ctober T erm, 1988

No. 87-1428

P a t r i c ia  A. L o r a n c e , e i  a i .., im i i i i o n i  rs 

v.

AT&T T e c h n o l o g ie s , I n c ., e i  a t .

ON PETITION TOR A W RIT Ol CERTIORARI 
TO THE UNITED ST  A TES COURT Ol APPEALS  

TOR THE SEVENTH CIRCUIT

BRIEF KOI* Till; UNITED STATES AND THE 
EQIJAI, EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

This brief is submitted in response to the Court’s invitation to 
the Solicitor General to express (lie views of the United Stales.

STATEMENT

I. Petitioners Patricia A. Lorance, Janice M. King, and 
Carol S. Bueschen are hourly wage employees at the Mont
gomery Works plant of respondent AT&T Technologies, Inc. 
(AT&T), in Aurora, Illinois.1 They are also members of re
spondent Local 1942, International Brotherhood of Electrical 
Workers, AFL-CIO (Union). Pet. App. 4a. Petit ioners Lorance 
and Bueschen have been employed al the plant by AT&T since

1 B e c a u s e  t h e  c o u r l s  b e l o w  a w a r d e d  s u m m a r y  j u d g m e n t  t o  r e s p o n d e n t s  

b a s e d  s o l e l y  o n  l l t e  u n t i m e l i n e s s  o f  t h e  c h a r g e ,  o u r  s t a t e m e n t ,  l i k e  t h o s e  c o n  

t a i n e d  i n  t h e  l o w e r  c o u r t s '  o p i n i o n s ,  i s  b a s e d  o n  t h e  f a c t s  a l l e g e d  i n  p e t i t i o n e r s ’ 

c o m p l a i n t .

( I )

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2

1970, and petitioner King commenced work there in 1971 
(ibid.). At that time, promotions and demotions at the plant 
were based on plant-wide seniority (ibid ).

Most hourly wage jobs at the plant are semi skilled jobs and 
have traditionally been filled by women (Pet. App. 15a). 
Among the highest paying hourly wage jobs at the plant are 
“tester” jobs (id. at 4a, 15a). Tester positions were traditionally 
filled by men who were either promoted from among the 
relatively few men in the lower paying wage jobs or hired direct
ly into tester positions (id. at 15a). All three petitioners were 
originally employed in nontester positions.

By 1978, an increasing number of women obtained tester 
positions based on their plant-wide seniority (Pet. App. 4a). In 
July 1979, AT&T and the Union modified the collectively 
bargained seniority system applicable to the Montgomery 
Works plant to provide that promotions and demotions of 
testers with less than five years of tester service, who have not 
completed a training program for the tester job would be 
governed by seniority as a tester rather than plant-wide seniority 
(ibid.-, Compl. 1 17).2 The new seniority plan was known as the 
“Tester Concept” (Pet. App. 4a). Petitioner Lorance was a 
tester at the time the seniority system was changed (id. at 5a). 
Petitioners Bueschen and King became testers in 1980 (ibid.).

In late 1982, AT&T began a reduction in force and, based on 
its new seniority system, demoted all three petitioners (Pet. 
App. 5a). Petitioners Lorance and King were demoted from 
senior testers to junior testers and petitioner Bueschen was 
demoted to a nontester position (ibid.).* Petitioners would not 
have been demoted if AT&T had implemented the reduction in 
force on the basis of each petitioner’s plant-wide seniority 
(ibid.). Within 300 days of their demotions, petitioners filed ad
ministrative charges with the Equal Employment Opportunity 1

1 T h e  U n i o n  a p p r o v e d  l i r e  n e w  p l a n  b y  a  v o l e  o f  n i n e t y  v o l e s  t o  s i x t y ,  w h i c h  

w a s  a p p r o x i m a t e l y  t h e  r a t i o  o f  m e n  t o  w o m e n  ( I ’e t .  A p p .  5 a ) .

’ K i n g  w a s  d o w n g r a d e d  o n  A u g u s t  2 3 ,  1 9 8 2  l o r a n c e  a n d  B u e s c h e n  w e r e  

d o w n g r a d e d  o n  N o v e m b e r  1 5 ,  1 9 8 2 ,  a n d  B u e s c h e n  w a s  d o w n g r a d e d  a  s e c o n d  

t i m e  o n  J a n u a r y  2 3 ,  1 9 8 3 .  P e l .  A p p .  1 7 a .

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3

Commission (EEOC) claiming that their demotions violated 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000c et 
seqd The EEOC determined that there was not reasonable cause 
to believe that petitioners allegations were true and, according
ly, issued them right to-sue letters (Pet. App. 5a),

2. Petitioners subsequently brought this lawsuit in the 
United States District Court for the Northern District of Illinois 
pursuant to Section 706(f) of Title VII, 42 U.S.C. 2000e-5(f).4 5 
In their complaint, petitioners allege that respondents AT&T 
and Union changed the seniority system in 1979 “in order to 
protect incumbent male testers and to discourage women from 
promoting into the traditionally-male tester jobs” (Compl. 
1 14). They also allege that application of this provision has had 
the effect of favoring male testers over female testers (id.  ̂ 18; 
see also id. 1 6(f)).

The district court granted respondent AT&T’s motion for 
summary judgment and, sua sponte, also granted summary 
judgment in favor of respondent Union (Pet. App. I2a-33a).6 
The court agreed with AT&T that petitioners’ challenge was 
time-barred because they had failed to file their charges with the 
EEOC within the applicable limitations period established by 
Section 706(e) of Title VII (42 U.S.C. 20()0e-5(e)).7 The court 
ruled that the limitations period started to run when each peti
tioner first became subject to the new seniority policy as a tester 
(Pet. App. 26a, 32a). In doing so, it rejected petitioners’ conten
tion that the limitations period commenced when they were dc-

4 P e t i t i o n e r s  L o r a n c e  a n d  B u e s c l i e n  f i l e d  c h a i g e s  w i t h  l i r e  E E O C  o n  A p r i l  

1 3 ,  1 9 8 3 ,  a n d  p e t i t i o n e r  K i n g  f i l e d  I t e r  c h a r g e  o n  A p r i l  2 1 ,  1 9 8 3  ( P e t .  A p p .  

1 8 a ) .

5 P e t i t i o t r e r s  b r o u g h t  t h i s  s u i t  a s  a  c l a s s  a c t i o n ,  b u t  t h e  d i s t r i c t  c o u r t  h a s  y e t  

t o  r u l e  o n  t h e i r  m o t i o n  t o  c e r t i f y  t h e  c l a s s  ( s e e  P e l .  A p p .  6 a  n . l ) .

6 T h e  d i s t r i c t  c o u r t  a d o p t e d  t h e  r e c o m m e n d a t i o n  o f  t h e  m a g i s t r a t e  t h a t  

s u m m a r y  j u d g m e n t  s h o u l d  b e  e n t e r e d  i n  f a v o r  o f  r e s p o n d e n t s  ( P e t .  A p p  

3 4 a - 5 0 a ) .

7 A T & T  a r g u e s  t h a t  T i t l e  V l l ' s  1 8 0 - d a y  l i m i t a t i o n  p e r i o d  a p p l i e s  r a t h e r  t h a n  

i t s  3 0 0  d a y  l i m i t a t i o n s  p e r i o d ,  b u t  t h e  c o u r t s  b e l o w  cirri n o t  a d d r e s s  t h e  i s s u e  

b e c a u s e  u n d e r  t h e i r  a n a l y s i s  p e t i t i o n e r s ’ c h a r g e s  w e r e  u n t i m e l y  i n  e i t h e r  e v e n t  

( s e e  P e t .  A p p .  6 a  n . 2 ,  1 9 a - 2 0 a  n .3 ) .

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4

moled in 1982 (id. at 25a-27a), and likewise rejected AT&T’s 
claim, which the magistrate had accepted (id. at 43a-44a), that 
the limitations period commenced for all petitioners in 1979 
when AT&T first adopted the seniority policy (id. at 27a-31a). 
Because, as the court found, each petitioner filed his charge 
more than 300 days after the time each first became subject to 
the new policy as a tester, the court concluded that petitioners’ 
complaint should be dismissed because none had timely filed her 
charge with the EEOC (id. at 32a-33a n.6).

3. The court of appeals affirmed (Pet. App. 3a-l la). The 
court agreed that petitioners’ argument was “logically appeal 
ing,” but concluded that it was “compelled to reject it” because 
“(ijf we were to hold that each application of an allegedly dis
criminatory seniority system constituted an act of discrimina
tion, employees could challenge a seniority system indefinitely” 
(id. at 8a). Like the district court, however, the court of appeals 
also rejected AT&T’s argument that the “adoption” of the 
seniority system constituted the relevant act that triggered the 
running of Title Vll’s limitations period (ibid.). According to 
the court, such a rule would “encourage needless litiga
tion” by employees not even yet rorihally subject to the seniority 
plan and would also “frustrate the remedial policies that are the 
foundation of Title VII” by providing future employees with no 
recourse against a seniority system they thought discriminatory 
(ibid.).

The court of appeals determined that to strike a “balance that 
reflects both the importance of eliminating existing discrimina
tion, and the need to insure that claims are filed as promptly as 
possible, the rule should be that “the relevant discriminatory 
act that triggers the period of limitations occurs at the time an 
employee becomes subject to a facially-neutral but discrimina
tory seniority system that the employee knows, or reasonably 
should know, is discriminatory” (Pet. App. 9a). The court con
cluded that because affidavits submitted by petitioners estab
lished that they knew they were subject to the new seniority 
policy on the day they became subject to it as testers, the limita
tions period commenced on that date. Hence, the court found, 
petitioners’ charges were not timely filed with the EEOC be

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5
cause they were filed (wo to three years after eacli petitioner was 
first subject to the new policy, which is far beyond the 300-day 
limitations period provided by Title VII (ibid.). See note 4, 
supra.8

Judge Cudahy dissented (Pet. App. 10a 11a). He agreed that 
the majority’s policy concerns were “important,” but contended 
that they “find dubious application in the result here” (id. at 
1 la). He explained that the majority’s rule would not achieve its 
goal of preventing suits against seniority plans adopted long 
ago, but instead would merely limit the plaintiffs who could 
maintain a lawsuit to those more recently hired (id. at 10a). 
Judge Cudahy also faulted the majority for announcing a legal 
rule that would require employees to bring premature lawsuits. 
When an employee is first subject to a seniority policy, the dis
sent explained, he has not yet been injured by it and does not 
know whether he ever will be. Ibid.9

DISCUSSION

Like petitioners, we believe that the decision of the court of 
appeals is incorrect, conflicts with decisions of other courts of 
appeals, and presents an important question of federal employ
ment discrimination law. We accordingly urge the Court to 
grant the petition for a writ of certiorari.

1. Section 706(e) of Title VII provid es that where, as in this 
case, there is a state fair employment practice agency with over
lapping jurisdiction, an employment discrimination charge must 
be filed with the EEOC within 300 days "after the alleged unlaw
ful employment practice occurred” (42 U.S.C. 2000e-5(e)).10

1 T h e  c o u r t  d e s c r i b e d  ( P e t .  A p p .  9 a )  i t s  h o l d i n g  a s  “ a  n a r r o w  o n e , "  n o t i n g  

t h a t  t h e  r e l e v a n t  a c t  o f  d i s c r i m i n a t i o n  m a y  b e  d i f f e r e n t  w h e r e ,  u n l i k e  t h i s  c a s e ,  

t h e  s e n i o r i t y  p o l i c y  i s  f a c i a l l y  d i s c r i m i n a t o r y  o r  t h e  e m p l o y e r  e x e r c i s e s  d i s c r e 

t i o n  p r o v i d e d  b y  t h e  p l a n  i n  a  d i s c r i m i n a t o r y  f a s h i o n .

9 T h e  c o u r t  o f  a p p e a l s  d e n i e d  p e t i t i o n e r s ’ p e t i t i o n  f o r  r e h e a r i n g  a n d  s u g g e s 

t i o n  f o r  r e h e a r i n g  e n  b a n c  ( P e t .  A p p .  I a - 2 a ) .  J u d g e s  E a s t e r b r o o k ,  R i p p l e ,  a n d  

C u d a h y  v o t e d  i n  f a v o r  o f  r e h e a r i n g  e n  b a n c  (id. a t  2 a  n  *).

10 A s  p r e v i o u s l y  n o t e d  ( s e e  n o t e  7, su/’iv), A  r&T c l a i m s  t h a t  t h e  a p p l i c a b l e  

l i m i t a t i o n s  p e r i o d  i n  t h i s  c a s e  is  1 8 0  ( n o t  3 0 0 )  d a y s  b e c a u s e ,  a l t h o u g h  t h c i e  is  a

99



6

Hence, “[djetermining the timeliness of [petitioners’] EEOC 
complaint, and this ensuing lawsuit, requires us to identify 
precisely the ‘unlawful employment practice’ of which [they] 
complainf ].” Delaware Stale College v. Ricks, 449 U.S. 250, 
257 (1980). “[T]he critical question is whether any present viola
tion exists.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 
(1977) (emphasis omitted).

The gravamen of petitioners’ complaint is that respondent 
AT&T violated Title VII by demoting them pursuant to a 
seniority policy that, while facially neutral, intentionally 
discriminates against them on the basis of their sex and, hence, 
falls outside the protective ambit of Section 703(h)." Hence, if, 
as respondent AT&T contends, the unlawful practice 
“occurred” when AT&T first adopted the seniority policy or, as 
the court of appeals held, when it was made known to each peti
tioner that her seniority rights would be determined under the 
new policy, then petitioners’ charges would clearly be time- 
barred because petitioners did not file their charges within 300 
days of either of those events. If, on the other hand, the 
unlawful practice occurred on the date of petitioners’ demotion, 
their filings with the EEOC would be timely.

s l a t e  f a i r  e m p l o y m e n t  p r a c t i c e  a g e n c y  w i t h  o v e r l a p p i n g  j u r i s d i c t i o n ,  

r e s p o n d e n t s  " f a i l e d  t o  f i l e  t i m e l y  c h a r g e s  w i t h  t h e  a p p l i c a b l e  s t a t e  ‘d e f e r r a l ’ 

a g e n c y ”  ( A p p e l l e e  A T & T  C . A .  B r .  1 2  n . 1 0 ) .  T h e  l o w e r  c o u r t s  d i d  n o t  a d d r e s s  

t h i s  q u e s t i o n  b e c a u s e  t h e  r e s o l u t i o n  o f  t h a t  i s s u e  w o u l d  n o t  h a v e  a f f e c t e d  t h e i r  

d i s p o s i t i o n  o f  t h e  c a s e  ( s e e  P e t .  A p p .  6 a  n . 2 ,  I 9 a - 2 0 a  n . 3 ) .  W e  n o t e ,  h o w e v e r ,  

t h a t  t o  t h e  e x t e n t  t h a t  r e s p o n d e n t  A T & T ’s a s s e r t i o n  r e s t s  o n  a n  a l l e g a t i o n  t h a t  

s t a t e  p r o c e e d i n g s  w e r e  n o t  t i m e l y  i n s t i t u t e d  u n d e r  s t a t e  l a w ,  i t  c a n n o t  s u r v i v e  

t h i s  C o u r t ' s  r e c e n t  d e c i s i o n  i n  EEOC  v .  Commercial Office Products Co., N o .  

8 6 - 1 6 9 6  ( M a y  1 6 ,  1 9 8 8 ) ,  s l i p  o p .  1 4  ( “ s t a t e  l i m e  l i m i t s  f o r  f i l i n g  d i s c r i m i n a t i o n  

c l a i m s  d o  n o t  d e t e r m i n e  t h e  a p p l i c a b l e  f e d e r a l  l i m e  l i m i t ” ) .  I n  a n y  e v e n t ,  t h e  

q u e s t i o n  w h e t h e r  t h e  1 8 0  o r  3 0 0 - d a y  l i m i t a t i o n s  p e r i o d  a p p l i e s  d o e s  n o t  

p r e c l u d e  r e v i e w  o f  t h e  q u e s t i o n  p r e s e n t e d  b y  t h e  p e t i t i o n  b e c a u s e  p e t i t i o n e r s  

L o r a n c e  a n d  B u e s c h e n  f i l e d  t h e i r  c h a r g e s  w i t h  t h e  E E O C  w i t h i n  18 0  d a y s  a f t e r  

t h e i r  d e m o t i o n s  ( s e e  n o t e s  3 ,  4 ,  supra).

"  S e e  4 2  U . S . C .  2 0 0 0 e - 2 ( h )  ( ” ( I ] t  s h a l l  n o t  b e  a n  u n l a w f u l  e m p l o y m e n t  

p r a c t i c e  f o r  a n  e m p l o y e r  t o  a p p l y  * * ♦ d i f f e r e n t  t e r m s ,  c o n d i t i o n s ,  o r  

p r i v i l e g e s  o f  e m p l o y m e n t  p u r s u a n t  t o  a  b o n a  f i d e  s e n i o r i t y  o r  m e r i t  s y s t e m  

* * * p r o v i d e d  t h a t  s u c h  d i f f e r e n c e s  a r e  n o t  t h e  r e s u l t  o f  a n  i n t e n t i o n  t o  

d i s c r i m i n a t e  * * * . " ) .

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7

We agree with petitioners that their charges were timely filed 
because the date of their demotions was the date on which the 
“alleged unlawful employment practice occurred,” within the 
meaning of Section 706(e). Each application of a discriminatory 
seniority system to alter an employee’s employment status, like 
each application of a discriminatory salary structure to deter
mine an employee’s weekly paycheck, “is a wrong actionable 
under Title VII.” Bazemore v. Friday, 478 U.S. 385, 396 (1986) 
(discriminatory salary structure).12 In our view it is no bar to the 
bringing of a challenge confined to the current application of an 
allegedly discriminatory seniority policy that its previous ap
plications of the same policy are not now subject to legal 
challenge under Title VII, either because the limitations period 
has expired or because Title VII was not then in effect. Cf. id. at 
395.

Contrary to the court of appeals’ decision, neither this 
Court’s decision in United Air Lines, Inc. v. Evans, 431 U.S. 
553 (1977), nor its ruling in Delaware State College v. Ricks, 449 
U.S. 250 (1980), compels a different result.13 In both of those 
cases, the Court held that employment practices that merely 
perpetuate the consequences of prior discrimination are not 
themselves actionable wrongs under Title VII and, hence, the 
applicable limitations period begins to run on the date of the 
prior discriminatory act. Thus, in Evans, the limitations period 
began to run at (he time the employee u'as allegedly discharged 
in violation of Title VII and was not restarted when the 
employer subsequently refused the employee’s request to restore * 15

n  I n d e e d ,  s e n i o r i t y  s y s t e m s  a n d  s a l a r y  m a y  m e r g e  b e c a u s e  u n d e r  s o m e  

e m p l o y m e n t  c o n t r a c t s  " e a r n i n g s  a r e  * * * t o  s o m e  e x t e n t  a  f u n c t i o n  o f  s e n i o r i 

t y . ”  Franks v .  Bowman Transportation Co., 4 2 4  U . S .  7 4 7 ,  7 6 7  ( 1 9 7 6 ) .

15 T h i s  C o u r t ' s  m o r e  r e c e n t  d e c i s i o n  i n  Florida v .  Font;. N o .  8 6  1 6 8 5  ( J u n e  

2 3 ,  1 9 8 8 ) ,  a l s o  d o e s  n o t  s u p p o r t  t l i e  c o u r t  o f  a p p e a l s '  d e c i s i o n  i n  t h i s  c a s e .  

C u r r e n t  s e n i o r i t y  r i g h t s ,  l i k e  c u r r e n t  s a l a r y  p a y m e n t s ,  r e l a t e  t o  “ w o r k  p r e s e n t 

ly  p e r f o r m e d "  ( s l i p  o p .  1 5 ) .  T h e y  a r e  n o t  a k i n  t o  t h e  p e n s i o n  p l a n  a t  i s s u e  i n  

Florida v .  Long, w h i c h ,  “ f u n d e d  o n  a n  a c t u a r i a l  b a s i s ,  p r o v i d e s  b e n e f i t s  f i x e d  

u n d e r  a  c o n t r a c t  b e t w e e n  t h e  e m p l o y e r  a n d  r e t i r e e  b a s e d  o n  a  p a s t  a s s e s s m e n t  

o f  a n  e m p l o y e e ' s  e x p e c t e d  y e a r s  o f  s e r v i c e ,  d a l e  o f  r e t i r e m e n t ,  a v e r a g e  l i n a l  

s a l a r y ,  a n d  y e a r s  o f  p r o j e c t e d  b e n e f i t s ”  ( s l i p  o p .  1 5 ) .

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8

seniority rights she would have accrued had she remained em
ployed instead of being discriminatorily discharged (431 U.S. at 
557-558). Likewise, in Ricks the limitations period began to rim 
at the time the employer notified the employee of his denial of 
tenure and not when, as the “inevitable consequence” of that 
denial, the employee was later discharged upon completion of a 
one-year terminal contract (449 U.S. at 256-259).

In this case, however, petitioners’ demotions were not merely 
present consequences of a previous, time-barred discriminatory 
decision or act. They were instead a direct, present application 
of AT&T’s intentionally discriminatory seniority system, and 
thus were themselves “unlawful employment practices” capable 
of triggering the Section 706(e) limitations period. Evans differs 
from this case in that the plaintiff there did not allege that her 
employer’s seniority system was itself discriminatory, but in
stead urged as the source of the wrong the earlier discriminatory 
discharge (431 U.S. at 560; see Bazemore v. Friday, 478 U.S. at 
396 n.6). And, while in Ricks the employer was, in a manner of 
speaking, applying its prior tenure decision in subsequently 
discharging the employer, the latter action was, unlike the 
demotion in this case, the “inevitable! ] consequence” of the 
prior decision (449 U.S. at 257-258). Hence, the announcement 
of the tenure denial in Ricks also amounted to formal prior 
notification of termination of his employment and, for that 
reason, triggered the running of Title VII’s limitations period. 
Cf. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (footnote 
omitted) (limitations period begins to run in a Section 1983 ac
tion based on unlawful employment discrimination at the time 
“the operative decision was made —and notice given —in ad
vance of a designated date on which employment termi
nated”).14 By contrast, AT&T’s announcement of its new

14 W e  a s s u m e  t h a t  p e t i t i o n e r s  d i d  n o t  r e c e i v e  f o r m a l  p r i o r  n o t i f i c a t i o n  o f  

t h e i r  i m m i n e n t  d e m o t i o n  p r i o r  t o  t h e  d e m o t i o n  i t s e l f .  I f  t h e y  d i d ,  t h e  l i m i t a 

t i o n s  p e r i o d  m i g h t  b e  d e e m e d  t o  h a v e  c o m m e n c e d  a t  t h a t  e a r l i e r  t i m e .  S e e  

Heiar v .  Crawford County, 7 4 6  F . 2 d  1 1 9 0 ,  1 1 9 4  ( 7 t h  C i r .  1 9 8 4 )  ( W h i l e  

“ s p e c i f i c  n o t i c e  o f  t e r m i n a t i o n  * * * s t a r t s  t h e  * * * s t a t u t e  o f  l i m i t a t i o n s  r u n 

n i n g ,  i t  d o e s  n o t  f o l l o w  t h a t  t h e  n o t i c e  a n  e m p l o y e e  r e c e i v e s  w h e n  h e  i s  f i r s t  

h i r e d  w o u l d  a l s o  s e t  t h e  s t a t u t e  t o  r u n ;  i t  s u r e l y  w o u l d  n o t  ” ) .

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seniority policy in this case did “not abundantly forewarn! 1” 
petitioners (449 U.S. at 262 n.16). It did not notify petitioners 
that they would in fact be demoted based on that policy at some 
future date certain. It merely created the theoretical possibility 
of some undefined future adverse consequences.

Nor is there any merit in either the court of appeals’ (Pet, 
App. 8a) or respondent AT&T’s suggestion (Br. in Opp. 5-7) 
that Section 706(e) should be applied more strictly where the 
challenge is to the lawfulness of a seniority system because 
seniority systems are accorded special status in Title VII. Sec
tion 706(e) nowhere provides that challenges to seniority sys
tems are governed by a different limitations period than other 
types of discrimination claims. Moreover, Section 703(h), which 
is the only provision in Title VII that identifies seniority systems 
for special treatment., does not speak, explicitly or implicitly, to 
limitations issues (see 42 U.S.C. 2000e-2(h)). It simply provides 
that differences in treatment that would otherwise be unlawful 
under Title VII are lawful where they are “pursuant to a bona 
fide seniority * * * system * * * provided that such differences 
are not the result of an intention to discriminate” (ibid.).'5

Unlike AT&T, we do not believe that the legal effect of Sec
tion 703(h) is to require that any challenge to a seniority plan 
under Title VII must be brought, at most, within 300 days of the 
plan’s adoption.15 16 Section 703(h) requires that the employee in

15 T h e  c o u r t  o f  a p p e a l s ,  u n l i k e  A T & T ,  n e v e r  r e l i e d  o n  S e c t i o n  7 0 3 ( h )  t o  

s u p p o r t  i t s  r u l i n g .

“  I n d e e d ,  a s  t h e  c o u r t  o f  a p p e a l s  r e c o g n i z e d  ( P e t .  A p p .  8 a ) ,  s u c h  a  v i e w  

l e a d s  t o  n o n s e n s i c a l  r e s u l t s .  A n  i n d i v i d u a l  i n j u r e d  b y  a  s e n i o r i t y  s y s t e m  

a d o p t e d  l o n g  b e f o r e  h e  b e c a m e  e m p l o y e d  b y  t h e  c o m p a n y  w o u l d  h a v e  n o  

s t a n d i n g  t o  c o m p l a i n  u n t i l  a f t e r  h i s  c l a i m  w a s  t i m e - b a r r e d .  S e n i o r i t y  s y s t e m s ,  

h o w e v e r  d i s c r i m i n a t o r y  i n  p u r p o s e  a n d  e f f e c t ,  w o u l d  o p e r a t e  w i t h  i m p u n i t y ,  

i m m u n e  f r o m  l e g a l  c h a l l e n g e ,  j u s t  3 0 0  d a y s  a f t e r  b e i n g  p u t  i n t o  e f f e c t ,  a s  

w o u l d  a l l  o f  t h o s e  e n a c t e d  b e f o r e  t h e  a d o p t i o n  o f  T i t l e  V I I .  T h i s  C o u r t ' s  d e c i 

s i o n s ,  h o w e v e r ,  r e f l e c t  a  q u i t e  d i f f e r e n t  v i e w  o f  t h e  i m p o r t  o f  S e c t i o n  7 0 3 ( h ) .  

S e e ,  eg ., American Tobacco Co. v .  Patterson, 4 5 6  U . S .  6 3 ,  6 9  7 0  ( 1 9 8 2 )  

( “ T h e  a d o p t i o n  o f  a  s e n i o r i t y  s y s t e m  w h i c h  h a s  n o t  b e e n  a p p l i e d  w o u l d  n o t  

g i v e  r i s e  t o  a  c a u s e  o f  a c t i o n .  A  d i s c r i m i n a t o r y  e f f e c t  w o u l d  a r i s e  o n l y  w h e n  

t h e  s y s t e m  i s  p u t  i n t o  o p e r a t i o n  a n d  t h e  e m p l o y e r  ‘a p p l i e s ’ t h e  s y s t e m .  S u c h  

a p p l i c a t i o n  is  n o t  i n f i r m  u n d e r  § 7 0 3 ( h )  u n l e s s  it  is  a c c o m p a n i e d  b y  a  d i s

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dude in his proof of unlawful discrimination a showing “of ac
tual intent to discriminate on * * * the part of those who 
negotiated or maintained the system.” Pullman-Standard v. 
Swint, 456 U.S. 273, 289 (1982); American Tobacco Co. v. Pat
terson, 456 U.S. 63, 65, 69-70 (1982).’7 * * * * * * * * * 17 It does not suggest that 
only the adoption of the seniority system, as distinguished from 
its specific applications to define employee rights, can be an 
“alleged unlawful employment practice” that triggers the run
ning of Section 706(e)’s limitations period. Indeed, Section 703(h) 
does not define what is unlawful under Title VII in the first in
stance at all. It simply provides that “(njotwithstanding any 
other provision of (Title VII),” certain employment practices

c r i m i n a t o r y  p u r p o s e . ” ) ;  United Air Lines, Inc. v .  Evans, 4 3 !  U . S .  a t  5 6 0  ( S e c 

t i o n  7 0 3 ( h )  “ d o e s  n o t  f o r e c l o s e  a t t a c k s  o n  t h e  c u r r e n t  o p e r a t i o n  o f  s e n i o r i t y

s y s t e m s  w h i c h  a r e  s u b j e c t  t o  c h a l l e n g e  a s  d i s c r i m i n a t o r y . ” ) ;  Franks v .

Bowman Transportation Co., 4 2 4  U . S .  7 4 7 ,  7 6 1  ( 1 9 7 6 )  ( " | T ) h e  t h r u s t  o f  ( S e c 

t i o n  7 0 3 ( h ) ]  i s  d i r e c t e d  t o w a r d  d e f i n i n g  w h a t  i s  a n d  w h a t  i s  n o t  a n  i l l e g a l

d i s c r i m i n a t o r y  p r a c t i c e  i n  i n s t a n c e s  i n  w h i c h  t h e  p o s t - A c t  o p e r a t i o n  o f  a

s e n i o r i t y  s y s t e m  i s  c h a l l e n g e d  a s  p e r p e t u a t i n g  t h e  e f f e c t s  o f  d i s c r i m i n a t i o n  o c 

c u r r i n g  p r i o r  t o  t h e  e f f e c t i v e  d a t e  o f  t h e  A c t . ” ) .  N o r  c a n  w e  s u p p o s e  t h a t  C o n 

g r e s s  i n t e n d e d  s u c h  a  h a r s h  r e s u l t ,  p a r t i c u l a r l y  i n  T i t l e  V I I  w h e r e  t h i s  C o u r t  

h a s  r e c o g n i z e d  “ t h a t  t h e  l i m i t a t i o n s  p e r i o d s  s h o u l d  n o t  c o m m e n c e  t o  r u n  s o  

s o o n  t h a t  i t  b e c o m e s  d i f f i c u l t  f o r  a  l a y m a n  t o  i n v o k e  t h e  p r o t e c t i o n  o f  t h e  c i v i l

r i g h t s  s t a t u t e s ”  ( Delaware State College v .  Ricks, 4 4 9  U . S .  a t  2 6 2  n . 1 6 )  a n d  

“ t h e  d i f f i c u l t y  o f  f i x i n g  a n  a d o p t i o n  d a t e "  (American Tobacco Co. v .  Patter 
son, 4 5 6  U . S .  a t  7 6  n . 1 6 ) .

17 A T & T ’s e r r o n e o u s  c o n t e n t i o n  ( B r .  i n  O p p .  7 )  t h a t  t h e  c o u r t  o f  a p p e a l s ’ 

d e c i s i o n  i n  t h i s  c a s e  i s  " c o m p e l l e d "  b y  t h i s  C o u r t ' s  d e c i s i o n  i n  American 
Tobacco Co. v .  Patterson, supra, r e s t s  o n  a  m i s c h a r a c t e r i z a t i o n  o f  t h e  C o u r t ’s 

o p i n i o n  i n  t h a t  c a s e .  T h e  C o u r t  i n  American Tobacco Co. f o u n d  t h a t ,  “ t a k e n  

t o g e t h e r ,  Teamsters a n d  Evans s t a n d  f o r  t h e  p r o p o s i t i o n  s t a t e d  i n  Teamsters 
t h a t  ‘( s ] e c t i o n  7 0 3 ( h )  o n  i t s  f a c e  i m m u n i z e s  all b o n a  f i d e  s e n i o r i t y  s y s t e m s ,  a n d  

d o e s  n o t  d i s t i n g u i s h  b e t w e e n  t h e  p e r p e t u a t i o n  o f  p r e -  a n d  p o s t - A c t ’ d i s c r i m i 

n a t o r y  i m p a c t ”  ( 4 5 6  U . S .  a t  7 5 - 7 6  ( e m p h a s i s  a n d  b r a c k e t s  i n  o r i g i n a l ) ,  q u o t i n g  

International Brotherhood o f  Teamsters v. United States, 4 3 1  U . S .  3 2 4 ,  3 4 8  

n . 3 0  ( 1 9 7 7 )  ( e m p h a s i s  a d d e d ) ) .  A T & T  o m i t s  t h e  C o u r t ’s  c r i t i c a l  q u a l i f i c a t i o n  

t h a t  t h e  s e n i o r i t y  s y s t e m  m u s t  b e  “ b o n a  f i d e . ”  T h e  C o u r t ’s  s t a t e m e n t  d o e s  n o t  

“ c o m p e l ”  a  p a r t i c u l a r  r e s u l t  i n  t h i s  c a s e  b e c a u s e  p e t i t i o n e r s  a s s e r t  t h a t  A T & T ’s 

s e i f i o r i t y  s y s t e m  w a s  a d o p t e d  w i t h  a  d i s c r i m i n a t o r y  i n t e n t  a n d ,  h e n c e ,  i s  n o t  

" b o n a  f i d e "  w i t h i n  t h e  m e a n i n g  o f  S e c t i o n  7 0 3 ( h )

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11

shall not be unlawful.18 In this case, therefore, Section 703(h) 
does not shift the focus of petitioners’ discrimination claim 
away from its assertion that AT&T’s c u rren t  operation of the 
plan (in demoting petitioners pursuant to that plan) constitutes 
a present violation of Title VII.19

Finally, there is likewise no merit in respondent AT&T’s im
plicit suggestion that its seniority policy should be 
separated into two distinct parts in considering the timeliness of 11

11 I n d e e d ,  S e c t i o n  7 0 3 ( h )  d o e s  n o t  e v e n  r e q u i r e  a n  e m p l o y e e  t o  s h o w  t h a t  a  

s e n i o r i t y  s y s t e m  w a s  a d o p t e d  w i t h  d i s c r i m i n a t o r y  i n t e n t .  I t  is  w e i l  s e t t l e d  t h a t  a  

s e n i o r i t y  s y s t e m  l o s e s  i t s  e x e m p t i o n  u n d e r  S e c t i o n  7 0 3 ( h )  i f  i t  is  e i t h e r  a d o p t e d  

or maintained f o r  d i s c r i m i n a t o r y  r e a s o n s .  International Brotherhood o f  
Teamsters v .  United Stales, 4 3 1  U . S .  a t  3 5 5 - 3 5 6 ;  Pullman-Standard v .  Swint, 
4 5 6  U . S .  a t  2 8 9 .

”  W h i l e  p r o o f  o f  A T & T ’s  d i s c r i m i n a t o r y  i n t e n t  a t  t h e  t i m e  i t s  s e n i o r i t y  p l a n  

w a s  a d o p t e d  o r  m a i n t a i n e d  i s  n e c e s s a r y  i n  o r d e r  t o  o v e r c o m e  t h e  S e c t i o n  

7 0 3 ( h )  d e f e n s e ,  i t  i s  n o t  a l o n e  s u f f i c i e n t  t o  e s t a b l i s h  p e t i t i o n e r s '  c l a i m  t h a t  t h e  

s e n i o r i t y  p l a n  a m o u n t s  t o  a  p r e s e n t  v i o l a t i o n  o f  T i t l e  V I I .  C f .  Bazemore v .  Fri
day, 4 7 8  U . S .  a t  3 9 6 - 3 9 7  n . 6 ,  4 0 2 ;  Hazelwood School District v .  United Stales, 
4 3 3  U . S .  2 9 9 ,  3 0 9 - 3 1 0  &  n . 1 5  ( 1 9 7 7 ) .  F o r  t h i s  r e a s o n ,  A T & T ' s  r e l i a n c e  ( B r .  i n  

O p p .  7 )  o n  International A ss’n o f  Machinists v .  NLRB, 3 6 2  U . S .  4 1 1  ( I 9 6 0 )  is  

m i s p l a c e d .  I n  International Machinists, t h e  C o u r t  h e l d  t h a t  a  c l a i m  o f  u n f a i r  

l a b o r  p r a c t i c e  b a s e d  o n  t h e  e n f o r c e m e n t  o f  a  c l a u s e  i n  a  c o l l e c t i v e  b a r g a i n i n g  

a g r e e m e n t  w a s  u n t i m e l y  u n d e r  t h e  N a t i o n a l  T a b o r  R e l a t i o n s  A c t ,  2 9  U . S . C .  

1 6 0 ( b ) ,  b e c a u s e  t h e  e x c l u s i v e  g r o u n d  f o r  t h e  c l a u s e ’s  a s s e r t e d  i l l e g a l i t y  w a s  a n  

e r r o r  i n  i t s  e x e c u t i o n  a n d  c h a l j e n g e s  t o  t h e  e x e c u t i o n  i t s e l f  w e r e  n o  l o n g e r  t i m e 

l y .  T h e  C o u r t  e x p l a i n e d  t h a t  " t h e  u s e  o f  t h e  e a r l i e r  u n f a i r  l a b o r  p r a c t i c e  * * * 

s e r v e s  t o  c l o a k  w i t h  i l l e g a l i t y  t h a t  w h i c h  w a s  o t h e r w i s e  l a w f u l .  A n d  w h e r e  a  

c o m p l a i n t  b a s e d  u p o n  t h a t  e a r l i e r  e v e n t  i s  t i t n e - b a r r e d ,  t o  p e r m i t  t h e  e v e n t  

i t s e l f  t o  b e  s o  u s e d  i n  e f f e c t  r e s u l t s  i n  r e v i v i n g  a  l e g a l l y  d e f u n c t  u n f a i r  l a b o r  

p r a c t i c e "  ( 3 6 2  U . S .  a t  4 1 7 ) .  I n  t h i s  c a s e ,  h o w e v e r ,  p e t i t i o n e r s  h a v e  n o t  s o u g h t  

“ t o  c l o a k  w i t h  i l l e g a l i t y  t h a t  w h i c h  w a s  o t h e r w i s e  l a w f u l . ”  P e t i t i o n e r s  i n s t e a d  

w e r e  s i m p l y  o v e r c o m i n g  a  p o s s i b l e  d e f e n s e  t o  t h e i r  c l a i m  b a s e d  o n  S e c t i o n  

7 0 3 ( h ) ,  a n d  — a s  w e  u n d e r s t a n d  t h e m - c o n t e n d  o n l y  t h a t  " e a r l i e r  e v e n t s  m a y  

b e  u t i l i z e d  t o  s h e d  l i g h t  o n  t h e  t r u e  c h a r a c t e r  o f  m a t t e r s  o c c u r r i n g  w i t h i n  t h e  

l i m i t a t i o n s  p e r i o d ”  ( 3 6 2  U . S .  a t  4 1 6 ) .  H e n c e ,  i n  t h i s  c a s e ,  u n l i k e  International 
Machinists, t h e  c o n t r a c t u a l  p r o v i s i o n  b e i n g  c h a l l e n g e d  is  n o t  " w h o l l y  b e n i g n ” 

a n d  t h e  e v i d e n c e  o f  A T & T ’s m o t i v e  i n  a d o p t i n g  a n d  m a i n t a i n i n g  t h e  s e n i o t i t y  

p l a n  i s  s i m p l y  e v i d e n c e  d e e m e d  n e c e s s a r y  b y  C o n g r e s s  t o  p r o v e  " t h e  t r u e  

c h a r a c t e r ”  o f  t h e  p l a n ' s  c u r r e n t  o p e r a t i o n  {id. a t  4 1 6  4 1 7  ( f o o t n o t e  o m i t t e d ) ) .

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a Title VII claim: (1) a rule that the seniority of testers will he 
decided by service as a tester, not plant-wide service; and (2) a 
rule that employees will be entitled to certain benefits and the 
avoidance of certain burdens according to their seniority. 
AT&T argues, in effect, that petitioners cannot rely on the date 
of their demotions to support the timeliness of their charges 
because the only seniority rule applied by AT&T in demoting 
petitioners was the second rule, while petitioners’ discrimination 
challenge is confined to the lawfulness of the first seniority rule, 
which was adopted and applied to petitioners at much earlier 
dales. There is no more merit to this argument, however, than 
there would have been to an analogous contention in Bazemore 
that each weekly paycheck is not an actionable wrong under Ti
tle VII because it is simply the product of the application of a se
cond, wholly benign, discrete rule —that individuals would be 
paid salaries pursuant to the salary structure —while the em
ployees’ discrimination charge focussed on the salary structure 
itself, which had been adopted at an earlier time. In neither in
stance is the so-called second aspect of the employer’s policy 
truly separable from the admittedly discriminatory portion of 
the policy, because in each case the second necessarily incor
porates and applies the substance of the first.20

2. We also agree with petitioners that there is a conflict in 
the circuits. As the First Circuit recently explained in the course 
of sharply criticizing the Seventh Circuit’s decision in (his case, 
“(mjost circuit courts have * * * rejected [its] analysis. They 
have reasoned, instead, that the application of a discriminatory 
system to a particular substantive decision (e.g., to promote, 
demote, fire, or award benefits) constitutes an independent dis
criminatory act which can trigger the commencement of the 
statute of limitations.” Johnson v. General Electric, 840 F.2d 
132, 135 (1st Cir. 1988).21

20 I n  c o n t r a s t ,  t h e  s e n i o r i t y  p o l i c y  a t  i s s u e  i n  Evans w a s  w h o l l y  b e n i g n  a n d  

d i s t i n c t  f r o m  t h e  e m p l o y e r ’s p r i o r  d i s c r i m i n a t o r y  d i s c h a r g e  o f  t h e  e m p l o y e e .

21 S e e ,  e.g., tu n  v .  , t 7 < t 7  Technologies, Inc., 8 2 4  t  2 d  1 5 4 7 ,  1 5 4 5  ( 101 h  

C i r .  1 9 8 7 )  ( s y s t e m a t i c  c o m p a n y  p o l i c y  r e s t t i c t i n g  p r o m o t i o n s ;  A g e  

D i s c r i m i n a t i o n  i n  I m p l o y m e n t  A c t  ( A I ) F A ) ) ;  Abrams v .  Baylor College of

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13
There is a conflict in the circuits warranting this Court’s 

review, moreover, even if the Seventh Circuit’s analysis can, as 
AT&T suggests (Br. in Opp. 1), somehow be confined “to 
unique issues presented by seniority systems.” 22 As petitioners 
explain (Pet. 16-20), the Second, Fourth, and Sixth Circuits 
have, unlike the Seventh Circuit, each treated the application of 
facially neutral but discriminatory seniority plans as providing 
the basis for continuing violations of federal employment dis

Medicine, 8 0 5  F . 2 d  5 2 8 ,  5 3 2 - 5 3 3  ( 5 l h  C i r .  1 9 8 6 )  ( p o l i c y  r e s t r i c t i n g  

a s s i g n m e n t s ;  T i t l e  V I I ) ;  EEOCv. Weslinghoti.se Electric Corp., 7 2 5  F  2 d  2 1 1, 

2 1 9  ( 3 d  C i r .  1 9 8 3 )  ( p o l i c y  r e s t r i c t i n g  l a y o f f  b e n e f i t s ;  A D E A ) ,  c e r t ,  d e n i e d ,  4 6 9  

U . S .  8 2 0  ( 1 9 8 4 )  ; Crosland v . Charlotte Eye, Ear <t Throat Hospital, 6 8 6  F . 2 d  

2 0 8 ,  2 1 1 - 2 1 2  ( 4 t h  C i r .  1 9 8 2 )  ( p o l i c y  r e s t r i c t i n g  p e n s i o n  p l a n  b e n e f i t s ;  T i t l e  

V I I ) ;  McKenzie v .  Sawyer, 6 8 4  F . 2 d  6 2 ,  7 2  ( D  C .  C i r .  1 9 8 2 )  ( p o l i c y  r e s t r i c t i n g  

p r o m o t i o n s ;  T i t l e  V I I ) ;  Williams v .  Owens-Illinois, Inc., 6 6 5  F . 2 d  9 1 8 ,  

9 2 4 - 9 2 5  ( 9 t h  C i r . )  ( s y s t e m a t i c  d i s c r i m i n a t i o n  w i t h  r e s p e c t  t o  a s s i g n m e n t s  a n d  

p r o m o t i o n s ;  T i t l e  V I I ) ,  c e r t ,  d e n i e d ,  4 5 9  U . S .  9 7 1  ( 1 9 8 2 ) ;  Association Against 
Discrimination in Employment, Inc. v .  City of Bridgeport, 6 4 7  F . 2 d  2 5 6 ,  2 7 4  

( 2 d  C i r .  1 9 8 1 )  ( g i v i n g  a n d  u s i n g  d i s c r i m i n a t o r y  h i r i n g  e x a m i n a t i o n ;  T i t l e  V I I ) ,  

c e r t ,  d e n i e d ,  4 5 5  U . S .  9 8 8  ( 1 9 8 2 )  ; Satz v .  ITT  f  inancial Corp., 6 1 9  F . 2 d  7 3 8 ,  

7 4 3 - 7 4 4  ( 8 t h  C i r .  1 9 8 0 )  ( d i s c r i m i n a t o r y  p a y  a n d  d e n i a l  o f  p r o m o t i o n s  a s  

e v i d e n c e d  b y  d i s c r e t e  a c t s  o v e r  a  p e r i o d  o f  t i m e ;  T i t l e  V I I ) .

”  A  s u b s e q u e n t  S e v e n t h  C i r c u i t  o p i n i o n  a u t h o r e d  b y  J u d g e  C u d a h y ,  w h o  

d i s s e n t e d  i n  t h a t  c o u r t ’s  d e c i s i o n  b e l o w  ( s e e  P e t .  A p p .  l O a - l l a ) ,  a l s o  s u g g e s t s  

t h a t  p o s s i b i l i t y .  I n  Torres v .  Wisconsin Dep’t o f  Health A Social Services, 8 3 8  

F . 2 d  9 4 4 ,  9 4 8  n . 3  ( 1 9 8 8 ) ,  a  S e v e n t h  C i r c u i t  p a n e l  r e j e c t e d  a n  e m p l o y e r ’s  c l a i m  

t h a t  t h e  p l a i n t i f f s ’ c o m p l a i n t s  w e r e  n o t  t i m e l y  f i l e d  w i t h  t h e  E E O C ,  w h e r e  

p l a i n t i f f - e m p l o y e e s  w e r e  c h a l l e n g i n g  a  f a c i a l l y  d i s c r i m i n a t o r y  e m p l o y e r  p l a n  

a d o p t e d  i n  1 9 8 0  t h a t  r e s t r i c t e d  c e r t a i n  j o b s  t o  w o m e n ,  b u t  d i d  n o t  f i l e  c h a r g e s  

“ u n t i l  a f t e r  t h e i r  d e m o t i o n s ,  p u r s u a n t  t o  t h e  f u l l  i m p l e m e n t a t i o n  o f  t h e  P l a n ,  

i n  S e p t e m b e r  1 9 8 2 . ”  T h e  c o u r t  r u l e d  " t h a t  t h e  r e l e v a n t  d i s c r i m i n a t o r y  a c t  w a s  

t h e  P l a n ’s i m p l e m e n t a t i o n  a n d  t h e  p l a i n t i f f s '  r e s u l t i n g  d e m o t i o n s  i n  1 9 8 2 .  T h e  

p l a i n t i f f s '  s t a t u s  * * * w a s  n o t  d i r e c t l y  a f f e c t e d  b y  t h e  m e r e  a d o p t i o n  o f  t h e  

P l a n  i n  1 9 8 0 ,  n o r  w e r e  t h e i r  f u t u r e  d e m o t i o n s  a s s u r e d  a t  t h a t  l i m e "  ( ibid. ) .  T h e  

c o u r t  p r e c e d e d  a  c i t e  t o  i t s  p r i o r  d e c i s i o n  i n  t h i s  c a s e  w i t h  a  " B u t ,  c f . ”  s i g n a l  

a n d  i n t i m a t e d  t h a t  i t s  h o l d i n g  t h e r e  w a s  c o n f i n e d  t o  a  “  ‘n a r r o w ’ s e t  o f  c a s e s  

i n v o l v i n g  ‘f a c i a l l y - n e u t r a l  b u t  d i s c r i m i n a t o r y  s e n i o r i t y  s y s t e m ( s ) '  ’’ {ibid., 
q u o t i n g  8 2 7  F . 2 d  a t  1 6 7  ( P e t .  A p p .  9 a ) ) .  I h e  S e v e n t h  C i r c u i t  h a s  s i n c e  v a c a t e d  

i t s  o p i n i o n  i n  Torres a n d  a g r e e d  t o  h e a r  t h e  c a s e  c n  b a n c .  S e e  8 3 8  I . 2 d  a t  

9 5 7 - 9 5 8 .  T h e r e  is  n o  i n d i c a t i o n ,  h o w e v e r ,  t h a t  t h e  f u l l  c o u r t  a g r e e d  t o  r e h e a r  

t h e  c a s e  i n  o r d e r  t o  a d d r e s s  t h e  t i m e l i n e s s  i s s u e .

107



14

crimination law. See Cook v. Pan American World Airways, 
Inc., 771 F.2d 635, 646 (2d Cir. 1985) (“|TJhe alleged discrimi
natory violations in the present case must be classified as con
tinuous ones, giving rise to claims accruing in favor of each 
plaintiff on each occasion when the merged seniority list was ap 
plied to him.”), cert, denied, 474 U.S. 1109 (1986) ; Patterson v. 
American Tobacco Co., 634 F.2d 744, 751 (4th Cir. 1980) 
(“(C)ontinuing” violations of Title VII caused by the application 
of an employer’s discriminatory seniority system were “not 
barred by failure to have challenged at its inception the policy 
which gave continuing rise to them.”), vacated on other 
grounds, 456 U.S. 63 (1982); Morelock v. NCR Corp., 586 F.2d 
1096, 1103 (6th Cir. 1978) (“[TJhe adoption of a seniority system 
* * * constitutes a continuing violation * * * as long as that 
system is maintained by the employer. An employee’s cause of 
action for an alleged act of * * * discrimination caused by a 
discriminatory seniority system, does not accrue until his 
employment opportunities are adversely affected by the applica
tion to him of the provisions of that seniority system.”), cert, 
denied, 441 U.S. 906 (1979).2J

Contrary to respondent AT&T’s submission (Br. in Opp. 
8-9), the force of this circuit conflict is not dissipated by any 
meaningful distinction that can be made between the rulings of 
the Second, Fourth, and Sixth Circuits and the Seventh Circuit’s 
decision in this case. To be sure, both Cook and Morelock in
volved allegations of age discrimination under the Age 
Discrimination in Employment Act (ADEA) and not, as in this 
case, gender discrimination under Title VII, but as this Court 
has repeatedly noted, “(he filing provisions of the ADEA and 
Title VII (are] ‘virtually in haec verba,’ the former having been 
patterned after the latter.” EEOC v. Commercial Office Pro
ducts Co., slip op. 15 (quoting Oscar Maver & Co. v. Evans, 441

”  T h e  S e v e n t h  C i r c u i t  i n  t h i s  c a s e  i m p l i c i t l y  a c k n o w l e d g e d  t h a t  i t s  r u l i n g  

c o n f l i c t e d  w i t h  t h e  F o u r t h  C i r c u i t ’s d e c i s i o n  i n  American Tobacco Co., w h i c h  

i t  c i t e d  a s  s u p p o r t i n g  p e t i t i o n e r s ’ c o n t e n t i o n  “ t h a t  t h e  c o n t i n u e d  a p p l i c a t i o n  o f  

a n y  i n t e n t i o n a l l y  d i s c r i m i n a t o r y  s e n i o r i t y  s y s t e m  c o n s t i t u t e s  a  c o n t i n u i n g  

v i o l a t i o n  o f  t  i t l e  V U ”  ( P e t .  A p p .  7 a ) .

108



15

U.S. 750, 755 (1979)).24 Hence, I he circuit courts’ conflicting 
construction of these provisions in Title VII and the ADEA pre
sent a circuit conflict warranting further review.

Nor is there any persuasive reason to expect that any of these 
other circuits might reconsider their prior rulings in light of in
tervening developments. Contrary to AT&T’s suggestion (Dr. in 
Opp. 8), the Fourth Circuit’s ruling in American Tobacco that 
the application of a discriminatory seniority system constituted 
a "continuing” violation of Title VII was not in any manner 
“premised” or otherwise dependent on its other riding in that 
case that “Congress intended the immunity accorded seniority 
systems by § 703(h) to run only to those systems in existence at 
the time of Title Vll’s effective date, and of course to routine 
post-Act applications of such systems” (634 F.2d at 749). in
deed, the two rulings were made with respect to two different 
seniority systems —a pre-Act seniority system and a post Act 
system of lines of progression. The Fourth Circuit first conclud
ed that Section 703(h) did apply to the pre-Act seniority system, 
and remanded to the district court for further fact-finding (see 
634 F.2d at 747, 750). The court of appeals then concluded that 
the employees’ challenge to that system was not time-barred 
because the system constituted a “continuing violation” (id. at 
751). It is that holding that conflicts with the Seventh Circuit’s 
ruling here. The Fourth Circuit’s conclusion that Section 703(h) 
did not apply to seniority systems adopted after the effective 
date of the Act applied only to the post-Act lines of progression 
also at issue in the case (see 634 F.2d at 748-750); American 
Tobacco Co. v. Patterson, 456 U.S. 63, 67-68 & n.2 (1982). This 
Court reversed only the latter holding (see id. at 68-77). Hence, 
this Court’s subsequent reversal of the Fourth Circuit’s con
struction of Section 703(h) (see 456 U.S. at 68 77) provides no 
basis for speculating that the Fourth Circuit might now recon- 11

11 T h e  S e c o n d  C i r c u i t  i n  Cook s t r e s s e d  ( 7 7 1  F  2 d  a t  6 4 4 )  t h e  c o m m o n  

f e a t u r e s  s h a r e d  b y  S e c t i o n  7 0 3 ( h )  o f  T i t l e  V I I  a n d  t h e  A D E A ' s  a n a l o g o u s  p r o 

v i s i o n  g o v e r n i n g  s e n i o r i t y  s y s t e m s  ( §  4 ( f ) ( 2 ) ) .  S e e  2 9  I J . S . C .  6 2 3 ( f ) ( 2 )  ( " I t  s h a l l  

n o t  b e  ( a n ]  u n l a w f u l  ( p r a c t i c e )  t o  o b s e r v e  t h e  l e i m s  o f  a  b o n a  f i d e  . s e n i o r i t y  

s y s t e m  * * * w h i c h  is  n o t  a  s u b t e r f u g e  t o  e v a d e  t h e  p u r p o s e s  o f  t h | e |  

| A D E A | ” ).

109



16

sider its ruling on the timeliness issue. As discussed above, 
moreover, we find unpersuasive AT&T’s argument that the 
meaning of Section 703(h) bears on the timeliness issue and ex
pect that the Fourth Circuit would be equally unreceptive to 
that contention.

We also find unconvincing AT&T’s contention (Br. in Opp. 
9) that the Sixth Circuit might reconsider its decision in 
Morelock in light of this Court’s subsequent decision in Ricks. 
As described above, Ricks, is distinguishable from the present 
case because while the denial of tenure provided the employee in 
Ricks with formal notification of the “inevitable” termination of 
his employment, neither the adoption of the seniority plan nor 
petitioners’ becoming subject to it provided them with formal 
notification of their subsequent demotion. There is, for that 
reason, no grounds for supposing that Ricks would (or should) 
persuade the Sixth Circuit to reconsider its ruling in Morelock.1'1

We do not share respondent AT&T’s view that the in
consistent statements in both Cook and Morelock should be 
given no significance by this Court on the ground that they are 
mere “dictum” (Br. in Opp. 9). Both courts squarely addressed 
the same basic legal issue presented in this case and expressly 
described their conclusions of law as holdings (see 771 F.2d at 
646; 586 F.2d at 1103). That the Seventh Circuit’s rationale in 
this case would have led the Second Circuit in Cook to the same 
result it actually reached does not alter the fact that it rested its 
judgment on starkly conflicting reasoning. Nor does the fact 
that the Sixth Circuit in Morelock ultimately upheld the em
ployer’s claim that his seniority policy was lawful convert that 
court’s flat rejection of the employer’s threshold timeliness 
defense into mere dictum. As the employer argued in that case, 
had the court accepted that threshold procedural defense, it 
would have “eliminate(d) the necessity for th(ej Court to reach 
the merits of th[e] appeal” (586 F.2d at 1102).

3. Finally, review is warranted because the question pre
sented by the petition is important. Congress “ordained that its

” Morelock, l i k e  ( h i s  c a s e  a n d  u n l i k e  Ricks, i n v o l v e d  a  c h a l l e n g e  t o  ( l i e  a p 

p l i c a t i o n  o f  a n  a l l e g e d l y  d i s c r i m i n a t o r y  s e n i o r i t y  s y s t e m .

110



17

policy of outlawing * * * * discrimination should have the 
‘highest priority’ ” (Franks v. Bowman Transportation Co., 424 
U.S. at 763 (citations omitted), quoting Alexander v. Gardner- 
Denver Co., 415 U.S. 36, 47 (1974)) and, as this Court has 
repeatedly recognized, “(s)eniority rights are of ‘overriding im
portance’ in collective bargaining” (American Tobacco Co. v. 
Patterson, 456 U.S. at 76 (quoting Humphrey v. Moore, 375 
U.S. 335, 346 (1964)); see Franks v. Bowman Transportation 
Co., 424 U.S. at 766 (citation omitted) (“Seniority systems and 
the entitlements conferred by credits earned thereunder are of 
vast and increasing importance in the economic employment 
system of this Nation.”)). This case concerns the intersection of 
these two important rights of an employee and the relationship 
of Sections 703(h) and 706(e) of Title VII.

The decision of the court of appeals warrants review because 
it threatens these important employee rights and the employ
ment relationship. As described by Judge Cudahy in dissent in 
this case (Pet. App. 10a), employees would under this rule be re 
qtiired to bring suit at a time when “they had not really been in
jured and might never be injured.” The likely upshot of the 
Seventh Circuit’s rule will therefore be, on the one hand, the 
proliferation within that jurisdiction of unnecessary and 
premature lawsuits against employers to the detriment of the 
employer/employee relationship and, on the other hand, the 
dismissal of any suit by an employee who, like each of the peti
tioners in this case, awaits the development of a concrete injury 
prior to taking the drastic action of suing his employer.26

We cannot estimate what proportion of the millions of 
employees who are subject to seniority systems will be affected 
by the court of appeals’ ruling either within the jurisdiction of 
the Seventh Circuit, or in other circuits, should any of them 
adopt a similar construction of Title VII. The EEOC has con-

26 A s  J u d g e  C u d a h y  a l s o  e x p l a i n e d  ( P e l .  A p p .  1 0 a ) ,  ( l i e  m a j o r i t y ’s  r u l e  w i l l  

n o t  e v e n  a b l y  s e r v e  t h e  o n e  o b j e c t i v e  i t  s o u g h t  t o  p r o m o t e  — p r o m p t  r e s o l u t i o n  

o f  c h a l l e n g e s  t o  s e n i o r i t y  s y s t e m s  — b e c a u s e  u n d e r  t h e  m a j o r i t y ’s r u l e  ( u n l i k e  

A T i X T ’s ) ,  f u t u r e  e m p l o y e e s  a r e  “ n o !  b a r r e d  b y  t h e  s t a t u t e  o T  l i m i t a t i o n s  a n d

* * * c a n  b r i n g  c h a l l e n g e s  t o  t e s t e r  s e n i o r i t y  i n  t h e  f u t u r e . "

I l l



18

sidered the date of the application of the allegedly 
discriminatory seniority system as the most logical date for the 
running of Section 706(e)’s limitations period, and has not 
heretofore compiled data regarding either the date on which a 
discriminatory seniority plan was first adopted or the date on 
which the complaining employee first became subject to the 
plan now being challenged.27

Although we have not undertaken an empirical study, we ex
pect that the relatively low number of decisions raising this 
question in the seniority context under either Title VII or the 
ADEA can be similarly explained. Unlike AT&T and the 
Seventh Circuit in this case, employers have most likely assumed 
that where, as in this case, the employee was claiming that the 
seniority system was itself discriminatory, the limitations period 
logically began to run on the date that they allegedly injured the 
employee through the application of their seniority systems.28 
Until the court of appeals’ ruling in this case, every court to 
reach the issue had adopted that very view. The defense will un
doubtedly now be increasingly raised in the aftermath of the 
Seventh Circuit’s ruling, but because of the existing circuit con
flict there is no need to await further development of the issue in 
the lower courts.

27 F o r  S h e  r e a s o n s  d e s c r i b e d  b y  t h i s  C o u r t  i n  American Tobacco Co. v .  Pat
terson, f i x i n g  a n  a d o p t i o n  d a t e  i s  o f t e n  a  d i f f i c u l t  t a s k  ( 4 5 6  U  S .  a t  7 6  n .  1 6 ) .

21 F o r  i n s t a n c e ,  a s  d e s c r i b e d  b y  p e t i t i o n e r s  ( P e t .  3 1 - 3 2  &  n . 1 8 ) .  i n  a t  l e a s t  

t w o  c a r e s  p r e v i o u s l y  b e f o r e  t h i s  C o u r t ,  i t  s e e m s  t h a t  n e i t h e r  e m p l o y e r  q u e s 

t i o n e d  t h e  t i m e l i n e s s  o f  T i t l e  V I I  c h a r g e s  c h a l l e n g i n g  t h e  l a w f u l n e s s  o f  s e n i o r i 

t y  p l a n s  w h e r e  t h e  p l a i n t i f f  e m p l o y e e  h a d  f i r s t  b e c o m e  s u b j e c t  t o  t h e  p l a n  l o n g  

b e f o r e  t h e  b r i n g i n g  o f  t h e  l a w s u i t ,  w h i c h  i n s t e a d  w a s  f i l e d  f o l l o w i n g  i n j u r y  

c a u s e d  b y  t h e  p l a n ’s o p e r a t i o n .  S e e  California Brewers Ass'n  v .  Bryant, 4 4 4  

U . S .  5 9 8 ,  6 0 1 - 6 0 2 ,  6 1 0  6 1 1  ( 1 9 8 0 ) ;  Nashville Gas Co. v .  Saltv, 4 5 4  U  S .  1 4 6 ,  

1 3 8 - 1 4 3  ( 1 9 7 7 ) .

112



19

CONCLUSION

The petition for a writ of certiorari should be granted. 
Respectfully submitted.

C h a r i es F r ie d  
Solicitor General

Wm. B rad fo rd  R ev n o i.ds 
Assistant Attorney General

Do nai d B. A yer  
Deputy Solicitor General

R ic h a r d  J. L a za ru s  
Assistant to the Solicitor 

General
D a vid  K. F i ynn 
L inda  F. T home 

Attorneys

Charles A. Siianor 
General Counsel

Gwendolyn Young Reams 
Associate General Counsel

Vincent J. Blackwood 
Assistant General Counsel

Stephen P. O’Rourke 
A ttorney
Equal Employment

Opportunity Commission

September 1988

113



No. 87-1428

In  T h e

Supreme Co urt of tfje Unitefci states
Oc t o b e r  T e r m , 1988

PATRICIA A. LORANCE, JANICE M. KING, 
and CAROL S. BUESCHEN,

Petitioners,
v.

AT&T TECHNOLOGIES, INC., and LOCAL 1942, 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, AFL CIO,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEAL FOR THE SEVENTH CIRCUIT

BRIEF FOR PETITIONERS

JULIUS LeVONNE CHAMBERS 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street
Sixteenth Floor
New York, New York 10013

BARRY GOLDSTEIN*
PAUL HOLTZMAN 

NAACP Legal Defense and 
Educational Fund, Inc,

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

BRIDGET ARIMOND 
14 West Erie Street 
Chicago, Illinois 60610

Attorneys for Petitioners 
Patricia A. Lorance, et at.

*Counsel of Record

115



QUESTION PRESENTED

Are administrative charges filed by 
female workers under Title VII of the 
Civil Rights Act of 1964 timely when filed 
within 300 days of their demotion to 
lower-paying jobs caused by the operation 
of a discriminatory seniority system that 
was designed to advantage male workers 
over female workers?

116



TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . .
TABLE OF CONTENTS ............
TABLE OF AUTHORITIES . . . . . .
CITATIONS TO OPINIONS BELOW . .
JURISDICTION ..................
STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE ........
SUMMARY OF ARGUMENT ..........
ARGUMENT .......................
FEMALE WORKERS MAY FILE A TIMELY 
TITLE VII CHARGE WITHIN 300 DAYS 
OF THEIR JOB DEMOTION DUE TO THE 
OPERATION OF A DISCRIMINATORY 
SENIORITY SYSTEM DESIGNED TO 
ADVANTAGE MALE WORKERS OVER 
FEMALE WORKERS . . . . . . . . .
A. The Court's Decisions Make 

Clear That a Worker Harmed 
by the Operation of a 
Discriminatory Seniority 
System Is Permitted to File 
a Charge Within 300 Days 
of that Harm ............



iii
B. The Effective and Efficient 

Implementation of Title VII 
Requires that a Worker Be 
Permitted To File a Timely 
Charge from the Date the 
Worker Is Harmed by the 
Operation of a Discrimina
tory Seniority System . . 48

CONCLUSION . . . . . . . . . .  69

118



TABLE OF AUTHORITIES
Cases: Pages

iv

Abrams v. Baylor College of 
Medicine, 805 F.2d 528 (5th 
Clr. 1986) ................  47

Albemarle Paper Co. v. Moody,
422 U.S. 405 ( 1 9 7 5 ) ........  59, 60

Alexander v. Gardner-Denver Co.,
415 U.S. 36 ( 1974 ) ..........  53

American Tobacco Co. v. Patterson,
456 U.S. 63 (1982) . . . . . .  37

Bazemore v. Friday, 478 U.S. 385
(1986) . . . . . . . . . . .  22, 26,

27, 40

Bruno v. Western Electric Co.,
829 F .2d 957 (10th Cir.
1987) ................ .. 46

California Brewers Association v.
Bryant, 444 U.S. 598 (1980) . 37

Connecticut v. Teal, 457 U.S.
440 (1982) . .................  59

Cook v. Pan American World Air
ways, Inc., 771 F .2d 635 (2d 
Cir. 1985), cert■ denied,
474 U.S. 1109 (1986).....  45

Corning Glass Works v. Brennan,
417 U.S. 188 (1974) ....  63

Delaware State College v. Ricks,
449 U.S. 250 (1980) . . . . .  42, 52

119



V

Cases Page
EEOC v. Westinghouse Electric 

Corp., 725 F .2d 211 (3d Cir. 
1983), cert, denied, 469 U.S. 
820 (1984) ................. .. 47, 52

Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976) . . . 42, 59
Furr v. AT&T Technologies, Inc., 

824 F .2d 1537 (10th Cir.
1987) . . . . . .  .......... 47

Griggs v. Duke Power Co., 401 
U.S. 424 (1971) . . . . . . . 31 , 55

Hanover Shoe v. United Shoe
Machinery, Inc., 392 U.S. 481 
(1968) ........................ 63

Havens Realty Corp. v. Coleman, 
455 U.S. 363 ( 1982 ) . . . . . 62

International Ass'n. of Machinists 
v. NLRB, 362 U.S. 411 (1960) . 64

Johnson v. General Electric,
840 F .2d 132 (1st Cir. 1988) . 46, 48,

53
Johnson v. Railway Express 

Agency, 421 U.S. 454 (1975) 59
Lewis v. Local Union No, 100 of 

Laborers' International, 750 
F .2d 1368 (7th Cir. 1984) . . 66

Love v. Pullman Corp., 404 U.S. 
522 (1972) 68

120



V I

Cases
Morelock v. NCR Corp., 586 F .2d 

1096 (6th Cir. 1978), cert.
denied, 441 U.S. 906 (1979)

Nashville Gas Co. v. Satty, 434 
U.S. 136 (1977) ............

Oscar Mayer & Co. v. Evans, 441 
U.S. 750 ( 1 9 7 9 ) ........ .. .

Patterson v. American Tobacco 
Co., 634 F .2d 744 (4th Cir. 
1980), vacated on other 
grounds, 456 U.S. 63 (1982)

Pullman-Standard Co. v. Swint,
456 U.S. 273 ( 1982) ........

Satz v. ITT Financial Corp.,
619 F.2d 738 (8th Cir. 1980) .

Sevako v. Anchor Motor Freight, 
Inc., 792 F .2d 570 (6th Cir. 
1986) .......................

Stoller v. Marsh, 682 F.2d 971 
(D. C. Cir. 1982), cert^ 
denied, 460 U.S. 1037 (1983) .

Taylor v. Home Insurance Company, 
777 F .2d 849 (4th Cir. 1985), 
cert. denied, 476 U.S. 1142 
(1986).......................

Teamsters v. United States, 431 
U.S. 324 (1977) . . . . . . .

Page

45

38

46

46

36, 41

47

66

47

47, 61

32-36,
59

121



vii
Cases
Trans World Airlines, Inc, v. 

Hardison, 432 U.S. 63 (1977) .
United Air Lines, Inc. v. Evans, 

431 U.S. 553 (1977) ........

Williams v. Owens-Illinois, Inc., 
665 F .2d 918 (9th Cir.), cert. 
denied, 459 U.S. 971 (1982)

Zenith Radio Corp. v. Hazeltine 
Research, 401 U.S. 321 (1971)

Zipes v. Trans World Airlines, 
Inc., 455 U.S. 385 (1982) . .

Statutes :
Age Discrimination in Employment 

Act Of 1967, 29 U.S.C. §§ 621
et sea. ................... .

Equal Employment Opportunity 
Act of 1972, P.L. 92-261, 86 
Stat. 1 0 3 .......... .. . . .

Fair Housing Act of 1968,
42 U.S.C. §§ 3601 et seq. . .

National Labor Relations Act,
§ 10(b), 29 U.S.C. § 160(b)

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

28 U.S.C § 1254(1 ) . . . . . .  .

Page

37

17, 40- 
42

47

63

25, 45, 
68

45-46

57, 68 

24 , 61 

65

Passim
3

122



vi i i
Legislative Authorities :
118 Cong. Rec. (1972) . . . . .  58-59,

68

Subcommittee on Labor of the 
Senate Committee on Labor 
and Public Welfare, Legis
lative History of the Equal 
Employment Opportunity Act 
of 1972 (GPO 1972) . . . . . .  58, 59,

68

Other Authorities:
Bureau of National Affairs,

EEOC Compliance Manual . . . .  48
General Accounting Office, Equal 

Employment Opportunity - EEOC 
and State Agencies Did Not 
Fully Investigate Discrimina
tory Charges (1988)   49

Jackson and Matheson, The Con
tinuing Violation Theory and 
the Concept of Jurisdiction in 
Title VII Suits, 67 Geo. L. J.
811 (1979)............   56

Laycock, Continuing Violations, 
Disparate Treatment in Compen
sation , and other Title VII 
Issues, 49 Law and Contemp.
Probs. 53 (1986)............  64

123



No. 87-1428
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1988

PATRICIA A. LORANCE, JANICE M. KING, 
and CAROL S. BUESCHEN,

Petitioners,
v .

AT&T TECHNOLOGIES, INC., and LOCAL 1942, 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, AFL-CIO,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE 

SEVENTH CIRCUIT

BRIEF FOR PETITIONERS

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals 
is reported at 827 F.2d 163 and is set out 
in the Appendix to the Petition for Writ

124



2
of Certiorari (Pet. App.) at pages 3a~lla. 
The order denying rehearing, which is not 
reported, is set out at Pet. App. la-2a. 
The district court's memorandum opinion is 
unreported and is set out at Pet. App. 
12a-33a. The Report and Recommendation of 
the United States Magistrate is unreported 
and is set out at Pet. App. 34a-50a.

JURISDICTION
The judgment of the court of appeals 

was entered on August 19, 1987. The court
of appeals entered an order denying a 
timely petition for rehearing and 
suggestion for rehearing ejr banc on 
October 30, 1987. On January 19, 1988,
Justice John Paul Stevens signed an Order 
extending the time for filing the 
petition for a writ of certiorari until 
February 27, 1988. The Petition for a 
Writ of Certiorari was filed on February 
26, 1988, and was granted on October 11,

125



3

1988. The jurisdiction of the Court is 
invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
Section 703 of Title VII of the 1964

Civil Rights Act, 42 U.S.C. § 2000e-2,
provides in pertinent part:

(a) It sh a l l  be an u n l a w f u l
employment practice for an employer-

(1) to fail or refuse to 
hire . . . 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 ...
In any way which would 
deprive or tend to deprive 
a n y  I n d i v i d u a l  of 
employment opportunities 
or otherwise adversely 
affect his status as an 
employee, because of such 
Individual's race, color, 
religion, sex, or national 
origin....

(c) It sh a l l  be an u n l a w f u l
employment practice for a labor 
organization-

126



4

(2) to limit, segregate, or 
classify its membership ... 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 . . . because of such 
individual's race, color, 
religion, sex or national 
origin....

(h) Notwithstanding any other 
provision of this subchapter, it 
shall not be an unlawful employment 
practice for an employer to apply 
different standards of compensation, 
or different terms, conditions or 
privileges of employment pursuant to 
a bona fide seniority or merit system 
. . . provided that such differences 
are not the result of an intention to 
discriminate because of race, color, 
religion, sex, or national origin....
Section 706(e) of Title VII of the

1964 Civil Rights Act, 42 U.S.C. § 2000e-
5(e), provides in pertinent part:

A charge under this section 
shall be filed within one 
hundred and eighty days after 
the alleged unlawful employment 
practice occurred. . . , except 
that In the case of an unlawful 
employment practice with respect 
to which the person aggrieved 
has i n i t i a l l y  instituted

127



5

proceedings with a State or 
local agency . . . , such charge 
shall be filed . . . within three 
hundred days after the alleged 
unlawful employment practice 
occurred....

STATEMENT OF THE CASE 
Plaintiffs Lorance, King and Bueschen 

brought this Title VII action claiming 
that defendants AT&T Technologies, Inc. 
(AT&T or Company) and Local 1 942, 
International Brotherhood of Electrical 
Workers, AFL-CIO (Local 1942 or Union) 
discriminated against them on the basis 
of their gender when the plaintiffs were 
demoted by the operation of an unlawful 
seniority system discriminatorily designed 
to limit the job rights of female workers 
w h o  had r e c e n t l y  p r o m o t e d  into 
traditionally male jobs. The lower courts 
failed to decide these claims because the 
courts determined that the plaintiffs did 
not file timely charges with the Equal 
Employment Opportunity Commission since



6
the charges were not filed within 300 days 
from the date that the plaintiffs became 
subject to the illegal seniority system. 
The plaintiffs argue that female workers 
may file timely Title VII charges within 
3 00 days from the date that the 
discriminatorily designed seniority system 
was operated to demote them to lower- 
paying jobs while male workers with less 
seniority in the plant were retained in 
higher-paying jobs.

* * * * *

1. Plaintiffs Patricia Lorance, 
Janice King and Carol Bueschen have been 
employed for many years in hourly wage 
positions in the Montgomery Works facility 
of AT&T in Aurora, Illinois. Lorance and 
Bueschen have worked as hourly employees 
since 1970 and King since 1971. Pet. App. 
4a. Lorance, King and Bueschen are 
members of Local 1942. Ibid.

129



7
The hourly paid jobs In the 

Montgomery Works are divided into job 
grades 32 through 39,1 The higher the job 
grade, the greater the wage rate paid to 
workers in the job. Joint App. 18, 32. 

Among the highest-paying hourly jobs is a 
category of jobs collectively referred to 
as the "tester universe." Pet. App. 4a.

Most of the hourly wage jobs in 
the Montgomery Works are in the lower- 
p a y i n g  job g r a d e s  and have been 
traditionally occupied by women. Pet. 
App. 15a. But the higher-paying tester 
positions have been traditionally viewed 
as men's jobs. These tester jobs have

There are four other types of 
jobs in the Montgomery Works: (a)
ungraded management personnel; (b) 
salaried personnel whose positions are 
graded; (c) salaried personnel who are 
represented by a union; (d) employees in 
the journeyman trades occupations. This 
lawsuit does not concern employees in 
these p o s i t i o n s  or the selection 
procedures for these positions. Joint 
App. 18, 32.

130



8
been filled either by promoting the 
relatively few men in the lower-graded 
jobs or by hiring men directly into the 
tester jobs. Ibid.

"Although [the tester] positions 
traditionally had been filled by men, by
1978 an increasing number of women had 
used their plant-wide seniority to obtain 
jobs as testers." Pet. App. 4a. Until
1979 the standard of plant seniority 
g o v e r n e d  job p r o m o t i o n s  and job 
reductions-in-force within the job-graded 
hourly positions. Given relatively equal 
qualifications the employee who had been 
employed for the longest period within 
Montgomery Works would be the first 
promoted and the last demoted.

At least since 1960 collective 
bargaining agreements between the Company 
and Union provided that promotions and 
demotions within the graded hourly 
position would be governed by plant 
seniority. Joint App. 20, 33, 41.

131



9

In late 1978 or early 1979 the 
Union Initiated discussions with AT&T to 
change the seniority system, which up to 
that time would have permitted female 
workers to use their plant seniority to 
promote from one job to another within the 
"tester universe" and to remain in tester 
jobs if there were a reductlon-in-force. 
The Union and the Company developed a 
proposal, known as the "tester concept." 
The proposal provided that after a worker 
became a tester, job promotions and 
demotions were to be based upon the length 
of time that the worker had been a tester 
( "tester seniority"), rather than on the 
length of time a worker had been employed 
at Montgomery Works. Pet. App. 4a.

The proposed "tester concept" 
was "heatedly debated in several union

132



10

meetings"3 but "was passed on June 28, 
1 979 by a hand vote of 90 to 60, 
reflecting the approximate proportions of 
men and women in attendance." Pet. App. 
16a-17a; Pet. App. 5a.4 On July 23, 
1979, the Union and Company signed an
agreement adopting the tester concept,
Pet. App. 5a, Joint App • 50-56, which was
incorporated into the master contract
between AT&T and Local 1942 in August,
1980. Pet. App. 17a.

The tester concept provision

For example, Ms. Lorance 
testified that at a union meeting "it was 
mentioned that women were coming in with 
seniority and passing the men up and they 
were tired of it." Dep. of Lorance, 
March 19, 1984, at 103.

The court of appeals decision 
erroneously stated the date of the 
meeting as June 28, 1978, Pet. App. 5a,
but the correct date is June 28, 1979, as
set forth in the district court opinion. 
Pet. App. 16a; see, Joint App. 56.

133



11
established a dual seniority system5 
whereby job promotion and demotion within 
the tester universe was governed by a 
worker's Initial date of assignment to a 
job in the tester universe, while the 
worker's initial date of hire into 
Montgomery Works governed all other 
matters. Pet. App. 16a. However, the
forfeiture of plant seniority for job 
promotions or demotions within the tester * 2

The pertinent sections of the 
agreement are as follows: "(1) TERM OF 
EMPLOYMENT of employees in the program, 
for movement of personnel purposes, except 
layoff, shall be defined as the date of 
entry into the tester universe; shall 
include service in the universe prior to 
the effective date of this Agreement....
(2) TERM OF EMPLOYMENT of employees in the 
program for layoff and all other purposes 
shall be as computed under the BENEFIT 
PLAN." Joint App. 51.

Under the benefit plan the term of 
employment is computed on the basis of 
length of service in the facility.

134



12

universe was limited to five years.6
At the time the Company and Union 

signed the tester concept agreement, 
petitioner Lorance was a tester. In 
February 1980 petitioner King, and in 
November 1980 petitioner Bueschen, were 
promoted to tester positions. Pet. App. 
5a. In summer 1982 the petitioners were 
demoted for the first time pursuant to the 
dual seniority system. Since the 
petitioners had not worked as testers for 
five or more years they were demoted 
during a reduction in force on the basis 
of their "tester seniority" rather than

The pertinent section of the 
agreement provides that

"[a]fter an employee 
completes five (5) 
years service in the 
t e s t e r  u n i v e r s e ,  
h i s / h e r  T E R M  OF 
EMPLOYMENT for all 
purposes shall be as 
computed under the 
BENEFIT PLAN." Joint 
App.52.

135



13

their "plant seniority." Lorance and King 
were demoted to lower-paying tester 
positions and Bueschen was demoted to a 
non-tester position. Ibid.

The petitioners and other female 
workers were demoted to lower paying jobs 
even though male workers with less plant 
seniority were retained in the higher 
paying positions. If the traditional 
plant seniority system had applied, 
petitioners Lorance, King and Bueschen 
would not have been demoted. Pet. Ad d . 
5a.

2. Within 300 days of their job 
demotions, Lorance, Bueschen and King 
filed charges with the Equal Employment * 1

1 Petitioner King was downgraded 
on August 23, 1982, petitioner Lorance on
November 15, 1982, and petitioner Bueschen 
on November 15, 1982, and January 23,
1 984. Pet. App . 17a. Lorance and
Bueschen filed their EEOC charges on April 
13, and King filed her charge on April 21, 
1983. Pet. App. 5a.

136



14
Opportunity Commission claiming that they 
were demoted because of their gender In 
violation of Title VII of the Civil Rights 
Act of 1964.

3. As required by Title VII,8 on 
September 20, 1983, within 90 days of the
Issuance to the petitioners of a Notice of 
Right to Sue announcing the conclusion of 
the administrative agency's process, the 
petitioners filed a pro se complaint. 
Pet. App . 18a. Subsequently, the
petitioners retained counsel and filed an 
amended complaint pursuant to Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. , alleging that AT&T and
Local 1942 had discriminated against the 
petitioners and other female workers9 by

8 Section 706(f), 42 U.S.C. §
2000e-5(f).

The petitioners brought a class 
action but the district court granted 
summary judgment without considering the

(continued. . . )

137



15
conspiring to change the seniority rules 
"in order to protect Incumbent male 
testers and to discourage women from 
promoting into the traditionally-male 
tester jobs," and that "[t]he purpose and 
the effect of this manipulation of 
seniority rules" were to advantage male 
over female workers. Joint Ad d . 20-22.

The district court granted the 
Company's motion for summary judgment9 10 
because it deemed that the petitioners had 
failed to file their administrative 
c h a r g e s  with the EEOC within the 
applicable limitations period established 
by section 706(e) of Title VII, 42 U.S.C.

9(...continued)
issue of class certification. Pet. App. 
6a n .1.

10 Even though Local 1942 failed 
to file a motion for summary judgment, the 
district court sua sponte entered judgment 
in favor of the Union because the 
Company's "motion is equally effective in 
barring the claim against" the Union. 
Pet. App. 33a n.7.

138



16
§ 2000e-5(e ).11 The court ruled that the
time period commences to run from "the
date [the plaintiffs] were forced to

11 Section 706(e) establishes two
time periods. The section provides that a 
charge "shall be filed within one hundred 
and eighty days after the alleged unlawful 
employment practice occurred" except where 
the charging person "has initially 
instituted proceedings with a state or 
local agency" the charge "shall be filed 
... within three hundred days after the 
alleged unlawful employment practice 
occurred. . . . "

The Court of Appeals noted that 
"claims brought in Illinois are generally 
subject to a 300-day period of limitation" 
because "Illinois has a state [fair 
employment practices] agency to which 
employment complaints may be referred." 
Pet. App. 6a, n.2. While AT&T argued that 
Title VII's 180-day limitations period 
a p p l i e s  rather than its 300-day 
limitations period, the lower courts did 
not address that Issue because under the 
a n a l y s i s  of the lower courts the 
petitioners' charges were untimely 
regardless of which period applied. Pet. 
App. 6a n.2, 19a-20a n.3.

Since Lorance and Bueschen filed 
charges on April 13, 1983, within 180 days 
of their demotions on November 15, 1982,
their charges were timely filed even if 
the 180-day limitations period applies. 
See, n . 7, supra.

139



1 7

sacrifice their plant seniority rights 

under the 'Tester Concept.'" Pet. App. 
32a. Since Lorance was a tester when the 
seniority system was changed in 1979 and 
since Bueschen and King became testers in 
1980, their filing of EEOC charges in 
April 1983 e x c e e d e d  the 3 0 0 - d a y  
limitations period. Pet. App. 32a-33a 
n . 6.

A l t h o u g h  n o t i n g  that the 
p e t i t i o n e r s '  c o n t ention that the 
limitations period commenced when they 
were demoted in 1982 has "immediate 
appeal," the district court rejected the 
argument because of its interpretation of 
United Air Lines, Inc, v.  Evans, 431 U . S . 
553 (1977). Pet. App. 25a. Also the
district court rejected, Pet. App. 27a- 
31a, the magistrate's ruling, which AT&T 
had advanced, that the limitations period 
commenced for all petitioners when the

140



18

tester seniority policy was adopted. Pet. 
App. 43a-44a.

4. As did the district court, the 
court of a p p e a l s  found that the 
petitioners' argument was "logically 
appealing" but nevertheless rejected the 
argument because the court "conclude[d] 
that the relevant discriminatory act that 
triggers the period of limitations occurs 
at the time an employee becomes subject to 
a facially neutral but discriminatory 
seniority system that the employee knows, 
or r e a s o n a b l y  s h o u l d  know, is 
discriminatory." Pet. App. 8a-9a. The 
court rejected the plaintiffs' argument 
that any adverse action taken pursuant to 
a discriminatory seniority system 
constitutes a discriminatory act because 
"employees could challenge a seniority 
system indefinitely" and such a ruling 
"would run counter to the strong policy

141



19

favoring the prompt resolution of 
discrimination disputes." Pet. Ad d . 8a.

The court also rejected the 
argument advanced by AT&T and Local 1942 
that the filing period must run from the 
a d o p t i o n  of the s y s t e m  b e c a u s e  
" [ r ]equiring employees to contest any 
seniority system that might some day apply 
to them w o u l d  encourage needless 
litigation" and "would frustrate the 
remedial policies that are the foundation 
of Title VII." Ibid. The court believed 
that it had "str[uck] a balance that 
r e f l e c t s  both the I m p o r t a n c e  of 
eliminating existing discrimination, and 
the need to insure that claims are filed 
as promptly as possible." Pet. App. 9a.
Since the petitioners filed their EEOC 
charges more than 300 days after they had 
become subject to the seniority system, 
their claims were deemed time-barred.

142



20

Ibid.
Judge Cudahy dissented. He 

concluded that the court's decision did 
not serve the goal of ensuring the prompt 
resolution of challenges to seniority 
systems since challenges may be brought in 
the future by members of the class who are 
not currently subject to the seniority 
system. Moreover, the plaintiffs filed 
their charges when they were injured by 
their demotion; "[v]iewed in that direct 
and uncluttered fashion, their complaints 
were timely." Pet. App. 10a. Moreover,
Judge Cudahy criticized the majority for 
encouraging premature or unnecessary 
lawsuits by requiring workers to file 
lawsuits before they have been injured and 
even though they may never be injured. 
I b i d .

The Seventh Circuit denied the 
plaintiffs' petition for rehearing and

143



21

suggestion for rehearing en banc, although 
three Judges, Cudahy, Easterbrook, and 
Ripple, voted to grant rehearing en banc. 
Pet. App. la-2a.

SUMMARY OF ARGUMENT
A. On seven different occasions the 
Court has considered the operation of an 
illegal seniority system as an "unlawful 
employment practice" under Title VII 
regardless of the date on which the system 
was adopted or the date on which the 
plaintiff initially became subject to the 
system. A seniority system is illegal if, 
as here, it is the product of an Intent to 
discriminate.

Whenever the seniority system 
operated as intended by AT&T and Local 
1 94 2 to deny job opportunities to 
petitioners because of their gender, AT&T 
and Local 1942 committed an "unlawful 
employment practice." As this Court held

144



22

that each application of a discriminatory 
pay practice is "a wrong actionable under 
Title VII," Bazemore v, Friday, 478 U . S .
385, 395-96 (1986), so is each application 
of the discriminatory seniority practice. 
Therefore, the petitioners filed timely 
charges of discrimination because they 
filed those charges within 300 days of the 
date they were harmed by an "unlawful 
employment practice," that is by the 
operation of the discriminatory seniority 
system.
B. The Seventh Circuit’s rule that a 
worker must file a charge within 300 days 
of initially becoming subject to a 
discriminatory seniority system even 
though the system has not been applied and 
may never be applied to the detriment of 
the worker will serve to hinder the 
effective and efficient Implementation of 
Title VII. The requirement that a worker

145



2 3

must file premature and possibly 

u n n e c e s s a r y  litigation about the 
hypothetical application of a newly 
Instituted practice is particularly 
inappropriate in view of the fact that 
Congress established cooperation and
voluntary compliance as the preferred 
approaches for achieving equal employment 
opportunity.

Moreover, the legislative history of 
the 1972 amendments to Title VII confirms 
that Congress Intended to adopt the 
continuing violation" principle whereby a 

victim of discrimination may timely file 
from the "last occurrence" of an unlawful 
system rather than from the adoption of or 
"first occurrence" of the system. Such a 

principle is particularly appropriate 
where "untrained laymen" initiate the 
process for enforcing Title VII.

F u r t h e r m o r e ,  this Court has

146



24
recognized the importance of interpreting 
the limitations provisions applicable to 
remedial legislation similar to Title VII 
to permit timely challenges to the 
operation of long-established illegal 
practices. The Court has held that the 
continuing operation of practices in 
violation of laws designed to protect 
civil rights, such as the Fair Housing Act 
of 1968, or prevent unfair business 
activities gives rise to a cause of action 
whenever that operation causes harm. 
Similarly, the Court should hold that the 
operation of a discriminatory seniority 
system violates Title VII and gives rise 
to a cause of action whenever that ongoing 
operation harms a worker.

147



2 5

ARGUMENT

FEMALE WORKERS MAY FILE A TIMELY TITLE VII 
CHARGE WITHIN 300 DAYS OF THEIR JOB 
DEMOTION DUE TO THE OPERATION OF A 
DISCRIMINATORY SENIORITY SYSTEM DESIGNED 
TO ADVANTAGE MALE WORKERS OVER FEMALE 
WORKERS.
A . The Court's Decisions Make Clear That 

a Worker Harmed by the Operation of a 
Dlscriminatory Seniority System Is 
Permitted To File a Charge Within 300 
Days of the Date of that Harm.
1. Section 706(e) of Title VII

r e q u i r e s  that a w o r k e r  a l l e g i n g
discrimination file a charge with the
Equal Employment Opportunity Commission
"within three hundred days after the
alleged unlawful emp1oyment practice
o c c u r r e d ( E m p h a s i s  added); see, n.
11, supra. The filing of a timely charge
is a requirement for filing a lawsuit in 

1 9federal court. 1

1 In Zlpes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982),
the Court held "that filing a timely 
charge of discrimination with the EEOC is

(continued...)

148



26
A T & T  c o m m i t t e d  an "unlawful 

employment practice" when it operated its 
discriminatory seniority system to demote 
Lorance, Bueschen, King and other women to 
lower paying Jobs while retaining male 
employees in the higher paying jobs. 
Since Lorance, Bueschen and King filed 
charges within 300 days of their job 
demotions, their charges were timely 
filed.

This Court has held unanimously that 
"[e]ach week's paycheck that delivers 
less to a black than to a similarly 
situated white is a wrong actionable under 
Title VII, regardless of the fact that 
this pattern was begun prior to the 
effective date of Title VII." Bazemore v, 12

12(...continued)
not a jurisdictional prerequisite to sue 
in federal court, but a requirement that, 
like a statute of limitations is subject 
to waiver, estoppel, and equitable 
tolling."

149



2 7

Friday, 478 U.S. at 395-96. Like each 
operation of a discriminatory pay system 
which adversely affects employment 
opportunities or benefits, each operation 
of a discriminatory seniority system is an 
unlawful employment practice.

In Bazemore the Court explained that 
the employer's establishment of the 
discriminatory pay system "prior to the 
time it was covered by Title VII does not 
excuse perpetuating that discrimination 
after the [employer] became covered by 
Title VII." 478 U.S. at 395, (emphasis in 
original). Similarly, the fact that AT&T 
and the Union adopted a discriminatory 
seniority system before 300 days from the 
filing of the charges does not immunize 
acts perpetuating that discrimination 
occurring within 300 days from the filing 
of the charge.

2. The statutory definition of

150



28
"unlawful employment practice" requires 
the conclusion that each application of 
the discriminatory seniority system to the 
detriment of a female worker is an 
actionable wrong. Section 703 provides 
that

(a) It s h a l l  be an 
unlawful employment 
p r a c t i c e  for an 
employer -
(2) t o  l i m i t ,  
segregate, or classify 
his employees ... in 
any way which would 
deprive or tend t o 
deprive any individual 
o f  e m p l o y m e n t  
o p p o r t u n i t i e s  o r 
otherwise adversely 
affect his status as 
an employee because of 
such individual's 
r a c e ,  c o l o r ,  
r e l i g i o n ,  sex or 
n a t i o n a l  origin.
(Emphasis added).

In holding that a worker must file a 
charge within 300 days of becoming 
"subject" to the discriminatory seniority 
system, Pet. app. 9a, which in the case of

151



29
Lorance is the "adoption" of the system, 
in effect the Seventh Circuit reads 
section 703(a)(2) as making an "unlawful 
practice" only the "adoption" or the 
initial subjection of a worker to the 
challenged practice. The Seventh 
Circuit's interpretation of "unlawful 
practice" permits a challenge to the 
adoption of a practice established to 
discriminate against female workers but 
immunizes the actual application of the 
practice to "deprive" female workers of 
job opportunities. The lower court's 
standard fails to apply the language in 
section 7 0 3 ( a ) (2) proscribing all 
practices which "deprive" female workers 
of employment opportunities or "otherwise 
adversely affect" employment opportunities 

of female workers because of their gender.
The illogic of the lower court's 

analysis is apparent. For example, let us

152



30
assume that job demotions in the AT&T 

plant are based upon a decision by a 
supervisor rather than upon the operation 
of a seniority system. If the supervisor 
decides to demote female rather than male 
workers to lower-paying positions because 
the higher-paying jobs were "traditionally 
male" jobs, then there is no question but 
that the female workers could file a 
c harge w i t h i n  300 days from the 
application of this unlawful practice. 
The fact that the job demotions of the 
female workers were due to the operation 
of a systematic and intentionally designed 
plan to protect the male workers in their 
"traditional" jobs rather than the 
aberrant decision of a discriminatory 
supervisor should not preclude the female 
workers from filing timely charges within 
300 days of their job demotions.

To insulate from challenge the

153



31

ongoing operation of systematic and
planned discrimination established in a
seniority system designed to protect job
advantages of male workers over female
workers runs counter to a fundamental
purpose of the fair employment law.

The objective of Congress in the 
enactment of Title VII is plain 
from the language of the 
statute. It was to achieve 
e q u a l i t y  of e m p l o y m e n t  
o p p o r t u n i t i e s  and remove 
barriers that have operated in 
t h e  p a s t  to f a v o r  an 
identifiable group of white [or 
male] employees over other 
employees. Under the Act, 
practices, procedures, or tests 
neutral on their face and even 
neutral in terms of Intent, 
cannot be maintained if they 
operate to 'freeze* the status 
quo of prior discriminatory 
employment practices.

Griggs v. Duke Power Co. , 401 U.S. 424,
429-30 (1971), (emphasis added).

3. This Court's decisions regarding 
the legality of seniority systems make 
clear that the operation of an illegal 
seniority system is an unlawful employment

154



32
practice regardless of the date when the 
system was established. In Teamsters v. 
United States, 431 U.S. 324 ( 1977), the
Court first considered whether the 
perpetuation of prior discrimination by a 
seniority system which adversely affected 
the opportunities of black workers was 
i1legal.

T h e  C o u r t  d e s c r i b e d  t h e
discriminatory consequences of the
seniority system.

An example would be a Negro who 
was qualified to be a line 
driver In 1958 but who, because 
of his race, was assigned 
instead a job as a city driver, 
and is allowed to become a line 
driver only in 1971. Because he 
loses his competitive seniority 
when he transfers jobs, he is 
forever junior to white line 
drivers hired between 1958 and 
1970. The whites, rather than 
the Negro, will henceforth enjoy 
the preferable runs and greater 
protection against layoff. 
A l t h o u g h  the o r i g i n a l  
discrimination occurred in 1958 
—  before the effective date of 
Title VII -- the seniority 
system operates to carry the

155



33

e f f e c t s  o f the e a r l i e r  
discrimination into the present.

431 U.S. at 344 n. 27, (emphasis added).
The operation of the AT&T-Union seniority
system is indistinguishable from the
operation of the system in Teamsters.
Under the AT&T system, females assigned to
"traditionally female" jobs are forced to
forfeit their plant seniority when they
move into the tester positions. Female
workers are thereby junior to the male
workers who were hired into the plant
after the female workers. Thus, during a
reduction-in-force the seniority system
operates to carry forward to the present
the effects of the earlier division of
jobs by gender and causes the female
workers to be demoted to lower-paying jobs
rather than the male workers who have less
plant seniority than the female workers.

In Teamsters the Court rejected the
lower court's straightforward application



34
of Griggs to the seniority system. "Were 
It not for § 703(h),13 the seniority
system In this case would seem to fall 
under the Griggs rationale." But the 
Court held that section 703(h) only 
"extended a measure of Immunity to" 
seniority systems. 431 U.S. at 349-50. 
Section 703(h) "does not Immunize all 
seniority systems" because It only 
protects "bona fide" systems which do not 
cause differences In treatment which are 
"the r e s u l t  of an I n t e n t i o n  to 
discriminate...." Teamsters, 431 U.S. at
353, quoting section 703(h).

13 Section 703(h) provides In 
pertinent part: "Notwithstanding any
other provision of this subchapter, it 
shall not be an unlawful employment 
practice for an employer to apply 
different standards of compensation, or 
different terms, conditions, or privileges 
of employment pursuant to a bona fide 
seniority or merit system ... provided 
that such differences are not the result 
of an intention to discriminate because of 
race, color, religion, sex, or national origin. ..."

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3 5

The seniority system in Teamsters was 
"entirely bona fide" because "[i]t is 
conceded that the seniority system did not 
have its genesis in racial discrimination, 
and that it was negotiated and has been 
maintained free from any illegal purpose." 
431 U.S. at 355-56. The contentions in 
Lorance are to the contrary. The female 
workers maintain that the seniority system 
was designed by the IBEW and the Company 
in order to protect the discriminatory 
job advantage gained by the male over 
female workers during the period when the 
plant included "traditionally" female and 
male jobs.

P u r s u a n t  to the a n a l y s i s  in 
Teamsters, the Court would have held the 
operation of the seniority system at issue 

in Teamsters an "unlawful employment 
p r a c t i c e "  if the system had been 
established or maintained with an Intent

158



3 6

to discriminate even though the system was 
established prior to the effective date of 
Title VII. "As § 703(h) was construed In 
Teamsters, there must be a finding of 
actual Intent to discriminate on racial 
grounds on the part of those who 
negotiated or maintained the system." 
Pullman-Standard Co. v. Swint, 4 56 U .S .
273, 289 (1982), (emphasis added).14

Where a seniority system is the 
product of an intent to discriminate, its 
application to the disadvantage of those 
persons against whom the intentional 
discrimination was directed is an unlawful 
employment practice. Teamsters, supra; 
Pullman-Standard Co., supra; American * VII.

As in Teamsters the seniority 
system at issue in Swint was adopted many 
years prior to the effective date of Title
VII. 456 U.S. at 278. The differential 
treatment caused by the operation of the 
seniority system In Swint resulted from a 
system adopted many years before It was 
possible to file charges of discrimination.

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37

Tobacco Co. v. Patterson, 456 U.S. 63, 69- 
70 (1982) ("Such application (of a
seniority system] Is not Infirm under § 
703(h) unless It Is accompanied by a 
discriminatory purpose."); Trans World 
Airlines, Inc, v. Hardison, 432 U . S .  63, 
82 (1977 ) ( " [ A ] b s e r. t a discriminatory
purpose, the operation of a seniority 
system cannot be an unlawful employment 
practice even If the system has some 
discriminatory consequences.")

Two decisions by the Court illustrate 
that workers may challenge as an unlawful 
employment practice the operation of a 
long-established seniority system. In 
California Brewers Association v. Bryant, 
444 U.S. 598 (1980), the Court considered
w h e t h e r  a p a r t i c u l a r  contractual 
provision*5 was part of a seniority system 1

1 5 The provision afforded greater 
b e n e f i t s  to " p e r m a n e n t "  than to

(continued...)
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38
protected by section 703(h). The Court 
concluded that the provision was part of a 
seniority system but remanded the case to 
the lower court in order to permit the 
plaintiffs to establish that the system 
was not "bona fide," 444 U.S. at 610-11, 
even though the provision is part of a 
c o l l e c t i v e  b a r g a i n i n g  "agreement 
negotiated more than 20 years ago." 444 

U.S. at 602.
I n Nashville Gas Co. v. Satty, 4 3 4

U.S. 136 (1977), the Court ruled illegal
the company's practice requiring female 
employees returning to work following 
p r e g n a n c y  leave to forfeit their 
accumulated seniority while not requiring

...continued)
"temporary" employees. In order to become 
a permanent employee, a temporary employee 
had to work at least 45 weeks in a 
particular year. Since minority employees 
were disproportionately "temporary" 
employees, the provision adversely 
affected the employment opportunities of 
minority employees.

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39

such seniority forfeiture by employees 

r e t u r n i n g  from disability leave. 
Although hired in 1969 and subject to the 
practice for years, the plaintiff did not 
challenge the practice until she was 
denied her accumulated seniority when she 
returned from pregnancy leave in 1973.

Under the Seventh Circuit's Lorance 
rule neither Bryant nor Satty would have 
been permitted to challenge the operation 

of these seniority systems years after the 
systems were adopted and after the 
plaintiffs became subject to these 

seniority practices.
In the one decision In which the 

Court considered the application of the 
limitations provision to the current 
operation of a discriminatory seniority 
system, the Court endorsed the principle 
argued for by the petitioners. The Court 
determined that Title VII "does not

162



40

foreclose attacks on the current operation 
of seniority systems which are subject to 
challenge as discriminatory." United Air 
Lines v. Evans. 431 U.S. at 560. In 
United Air Lines the Court held that the 
challenge to the operation of the 
particular seniority system was not timely 
because plaintiff Evans did not challenge 
the legality of the system itself. Ibid.: 
see, Bazemore, 478 U.S. at 396 n. 6.

Unlike Lorance, Evans did not assert 
that the seniority system itself was 
illegal but merely that the system 
perpetuated the effects of the illegal 
policy of forced termination which the 
company no longer applied.16 However,

10 Evans had been forced to resign 
by United Air Lines' policy of refusing to 
employ pregnant stewardesses. After 
rehlre, Evans complained that the company 
discriminated against her by falling to 
count her seniority from her prior 
employment.

163



41
Lorance complains that the seniority 
system Itself Is discriminatory because It 
is the product of a conspiracy by AT&T and 
Local 1942 to protect the job positions of 
male workers and to discourage female 
workers from transferring into jobs in the 
tester universe which were viewed as men's 
jobs. Since Lorance claims that the 
system is not bona fide because there was 
an "actual intent to discriminate ... on 
the part of those who negotiated . . . the 
system, " Pullman-Standard Co. v. Swlnt, 
456 U.S. at 289, which makes the system 
"subject to challenge as [illegally] 
discriminatory," the petitioners may 
challenge "the current operation of [the] 
seniority system] ]." United Air Lines v. 
Evans, 431 U.S. at 560.17

17 Also the Seventh Circuit errs on 
relying upon Delaware State College v. 
Ricks, 449 U.S. 250 (1980), to conclude 
that the charges were untimely filed.

(continued...)

164



42
The decision in United Air Lines 

follows from the Court's interpretation of 
section 703(h) in Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976).
In Franks the Court held that the section 
does not preclude the award of retroactive 
seniority as a remedy to applicants who 
were di sc r imina tor i 1 y denied hire after 
the effective date of Title VII. In so 
doing the Court concluded that § 703(h) is 1

1 7 (...continued)
R i c k s  c o m p l a i n e d  t h a t  he was 
discriminatorily denied tenure but did not 
file a timely charge from the date of the 
adverse tenure decision. Rather, he
argued that he continued to suffer harm 
during the one year he worked pursuant to 
a termination contract. The Court
rejected the argument because the 
"termination of employment ... Is a 
delayed, but inevitable, consequence of 
the denial of tenure.... [T )he only 
alleged discrimination occurred -- and the 
filing limitations periods therefore 
commenced —  at the time the tenure 
decision was made...." 449 U.S. at 257-
58. Unlike the pay practice in Bazemore 
and the seniority system in Lorance, no 
current discriminatory practice was 
alleged in Ricks.

165



43
"only a definitional provision" which, 
like "other provisions of § 703 ... 
delineates which employment practices are 
illegal ... and which are not." As such, 
section 703(h) does not "limit[ ] or 
qualif[y] the relief authorized" by Title 
VII "in circumstances where an illegal 
discriminatory . . . practice is found." 
424 U.S. at 758-59.

As section 703(h) does not limit the 
scope of remedy available under section 
706(g), the remedial section of Title 
VII, so it does not limit the reach of the 
filing periods provided by section 706(e). 
Rather, "the thrust of [section 703(h)] is 
directed toward defining what is and what 
is not an illegal discriminatory practice 
in instances in which the post-Act 
operation of a seniority system is 
challenged as perpetuating the effects of 
discrimination occurring prior to the

166



44
effective date of the Act." (Emphasis 
added) 424 U.S. at 761.

Therefore, beginning with Franks the 
Supreme Court on seven occasions has 
considered the operation of an illegal 
s e n i o r i t y  system as an "unlawful 
employment practice" regardless of the 
date on which the system was adopted or 
the date on which the plaintiff initially 
b e c a m e  s u b j e c t  to the s y s t e m .  
Accordingly, pursuant to section 706(e) 
employees, as did the petitioners, may 
file a timely charge within 300 days of 
suffering harm from the operation of a 
discriminatory seniority system -- the 
"unlawful employment practice."

4. Other than the Seventh Circuit

1 8 Teamsters v . United States
supra; United Air Lines v. Evans 
Trans World Air Lines v
California Brewers Association v

supra; 
Hardison, supra;

Bryant,
supra; American Tobacco Co. v. Patterson, 
supra; Pullman-Standard Co. v. Swlnt, supra.

167



45
In Lorance, each appellate court which has 
applied the limitations provisions to a 
seniority system has held "that the 
alleged discriminatory violations [caused 
by a seniority system] must be classified 
as continuous ones, giving rise to claims
accruing in favor of each plaintiff on
each occasion when the [system is]
a p p l i e d . ..." Cook v . Pan Amer1 can
Airways, Inc., 771 F.2d 635, 646 (2d Clr.
1985), cert, denied, 474 U .S . 1109
( 19 8 6 ) . * 9 See also, Morelock v. NCR

The Second Circuit applied the 
legal principles governing the timeliness 
of Title VII charges to determine the 
timeliness of a case filed pursuant to the 
Age Discrimination In Employment Act of 
1967 (ADEA), 29 U.S.C. §§ 621 et see.
Cook v. Pan American World Airways, Inc., 
771 F . 2d at 646. The Second Circuit's 
application of Title VII principles to the 
filing requirements of the ADEA is 
consistent with this Court's opinions. 
Zlpes v. Trans World Airlines. 455 U.S. at 
395 n.ll (Congress modeled the filing 
requirement in the ADEA after the Title 
VII requirement) ; Oscar Mayer & Co. v . 
Evans , 441 U.S. 750, 756 (1979). See

(continued...)
168



46
Corp . , 586 F . 2 d 1096, 1103 (6th Cir.
1978), cert, denied, 441 U.S. 906 (1979);
Patterson v. American_Tobacco Co. , 634
F .2d 744, 751 (4th Clr. 1980), vacated on
other grounds, 456 U.S. 63 (1982).

"Most circuit courts have ... 
rejected [the Seventh Circuit’s] analysis 
[ 1 n L o r a n c e ) . They have reasoned, 
instead, that the application of a 
discriminatory system to a particular 
substantive decision (e.g., to promote, 
demote, fire, or award benefits) 
constitutes an independent discriminatory 
act which can trigger the commencement of 
the statute of limitations." Johnson v. 
General Electric, 840 F.2d 132, 135 ( 1st
Cir. 1988). See e.g., Stoller v. Marsh, * VII

19(...continued)
also, Bruno v. Western Electric Co., 829 
F.2d 957, 960 n.l (10th Cir. 1987) ("[T]he
application of the continuing violation 
theory [is] the same for ADEA and Title
VII cases....").

169



4 7

682 F . 2 d 971, 978-79 (D.C. Clr. 1982 ),
cert. denied, 460 U.S. 1037 (1983); EEOC
v, Westlnqhouse Electric Corp., 725 F.2d
211, 219 (3d Clr. 1983), cert. denied, 469 
U.S. 820 (1984); Taylor v. Home Insurance
Company, 777 F . 2d 849, 856 ( 4th Clr.
1985), cert■ denied, 476 U.S. 1142 (1986); 
Abrams v. Baylor College of Medicine, 805 
F . 2d 528, 534 (5th Clr. 1986); Satz V. ITT
Financial Corp., 619 F.2d 738, 743-44 (8th 
Clr. 1980); Williams v. Owens-Illinois, 
Inc. , 665 F . 2d 918, 924-25 (9th Cir.),
cert. denied, 459 U.S. 971 (1982); Furr v. 
AT&T Technologies, Inc., 824 F .2d 1537, 
1543 (10th Clr. 1987) ("A claim of age
discrimination ... may be based on a 
continuing policy and practice of 
discrimination that began before the 
statutory filing period, as long as the 
e m p l o y e r  c o n t i n u e s  to a p p l y  the 
discriminatory policy ... to a point

170



4 8

within the relevant filing period....").20
B . The E f f e c t i v e  and E f f i c i e n t  

Implementation of Title VII Requires 
that a Worker Be Permitted To File a 
Timely Charge from the Date th e 
Worker Is Harmed by the Operation of 
a Discriminatory Seniority System.
As the First Circuit stated, the

Lorance decision Is "unreasonable, as well
as undesirable from a public policy
p e r s p e c t i v e ." Johnson v. General
Electric, 840 F.2d at 136, (footnote
omitted) .

1. The Seventh Circuit's decision 
requires employees to file premature and 
often unnecessary lawsuits in order to 
preserve their right to challenge

Consistent with the overwhelming 
weight of judicial authority, the Equal 
Employment Opportunity Commission has 
advised its staff in its Interpretative 
Manual that the operation of an illegal 
practice, such as a seniority system, is a 
present violation of Title VII from which 
an employee may file a timely charge. 
B u r e a u  of National Affairs, EEOC 
Compliance Manual at Volume 2, §§ 605.6,
605.7(a), 616.14(b).

171



49
discriminatory seniority or other systems
which may or may not harm their job
opportunities in the future. If an
employee becomes subject to an arguably
discriminatory standard, the Lorance rule
requires the employee to file a charge
with the EEOC within 300 days even though
the standard may never be applied to the

9 1detriment of the employee.

In addition to leading to the 
filing of premature and unnecessary 
lawsuits, the Lorance rule will cause 
employees to file charges with the EEOC 
which the employees might otherwise not 
file before they have been harmed. These 
additional and unnecessary charges will 
serve to overload further an already 
overburdened system.

In fiscal year 1987 more than 115,500 
charges of discrimination were filed with 
the EEOC or with state and local fair 
employment agencies. United States 
G e n e r a l  A c c o u n t i n g  Office, Equal 
Employment Opportunity - EEOC and State 
Agencies Did Not Fully Investigate 
Discriminatory Charges (1988) at 10. The 
EEOC and the local agencies are unable to 
keep pace with the current level of charge 
filings. "By the end of fiscal year 
1987, EEOC's backlog had increased to

(continued...)

172



50

Petitioner Lorance's situation 
provides a good example of how the Seventh 
Circuit's rule may lead to the filing of 
unnecessary EEOC charges and lawsuits. 
Lorance became a tester in October 1978, 
Joint App. 22, and became subject to the 
discriminatory "tester universe" seniority 
system when it was adopted in July 1979. 
As p r e v i o u s l y  d e s c r i b e d ,  the 
discriminatory part of the system was the 
shift of the measure of seniority from 
plant service to tester job service to 2

2 1 (...continued)
about 62,000 charges [and the backlog of 
the local agencies to] about 56,000 
charges that they were responsible for 
processing under EEOC work-sharing 
agreements." Id. at 17.

Moreover, in approximately 40% to 85% 
of the Instances in which the EEOC and the 
local agencies closed charges on the 
basis of findings of no reasonable cause 
to believe discrimination occurred, the 
General Accounting Office found that 
partly as a result of the large number of 
charges the agencies had failed to 
investigate fully the charges as provided 
for by EEOC guidelines. Id. at 3, 21-35.

173



51

govern job promotions and demotions. 
However, the agreement provided that after 
five years of service as a tester an 
employee's promotions and demotions would 
once again be based upon her plant 
seniority. See n.6, supra.

Since Ms. Lorance had served as a 
tester for four years prior to her 
demotion In November 1982, she almost 
completed the entire five-year period 
under the discriminatory seniority 
forfeiture provision without being harmed 
by a demotion. Moreover, as a result of 
any number of other possible events, such 
as another change in the system or a 
promotion to a position not covered by the 
seniority agreement, see n.l, supra,
Ms. Lorance or the other petitioners may 
n e v e r  h a v e  b e e n  h a r m e d  by the

174



52
discriminatory practice.22

A worker should not be required to 
use "some mystical powers of omniscience," 
EEOC v. Westinqhouse Electric Corp., 725
F.2d at 220, in order to determine if she 
should file a charge because a recently 
implemented discriminatory policy may in 
the future limit her job opportunities. A 
worker may reasonably decide that it is 
better not to tilt at hypothetical 
windmills. It is certainly not in the 
interest of the efficient implementation 
of Title VII or the administration of the 
judicial system to force workers to 
Increase the burden on already overcrowded 
administrative and judicial dockets by

O  O Unlike the tenure denial in 
Ricks, which commenced the running of the 
s t a t u t e  of limitations since the 
termination of employment "inevitabl[y]" 
followed from the denial, 449 U.S. at 
257-58, the demotion of Lorance or any 
other particular female worker was not the 
"inevitable" consequence of the adoption 
of the discriminatory seniority system.

175



53

filing premature and possibly unnecessary 
charges and complaints. "It is unwise to 
encourage lawsuits before the injuries 
resulting from the violations are 
delineated, or before it is even certain 
that injuries will occur at all." Johnson 
v. General Electric, 840 F.2d at 136.

2. It is particularly Inappropriate 
to establish a filing rule that requires 
premature and possibly unnecessary 

litigation about the hypothetical 
application of a newly Instituted practice 
since Congress established "[c]ooperation 
and voluntary compliance .,. as the 
preferred means for achieving [Title 
VII's] goa1." Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44 (1974). The Lorance
rule requires workers to confront 
immediately their employers and unions 
about newly established practices rather 
than attempt to accommodate or adjust to

176



54
those practices in a manner which might 
avoid the loss of employment opportunities 

and litigation.
For example, Lorance attempted 

to serve her five-year period as a tester 
in order to regain her plant seniority for 
the purpose of job movement. By serving 
four out of the necessary five years 
before her demotion, she almost succeeded 
in attaining her goal without filing a 
lawsuit against her employer and union. 
Moreover, consistent with the goals 
expressed in Alexander, workers who face 
potential harm from a seniority system may 
attempt to have the system changed by 
negotiation. However, if the Seventh 
Circuit decision stands, the lesson for 
workers will be clear: If you are
confronted with an arguably discriminatory 
system you must sue immediately or forever 
lose your right to challenge the practice,

177



55

even if you think that you might avoid 
the discriminatory operation of the 

system.
3. Where, as here, the Company and 

the Union negotiators intended that the 
seniority system advantage male over 
female workers for job opportunities in 
the "traditionally" male tester jobs, it 
is "anomalous to deny [by an application 
of the charge filing requirements of Title

The Impractical operation of the 
Lorance rule is illustrated by the example 
of an imposition of an educational 
requirement for promotion which is 
arguably unlawful because it disqualifies 
disproportionately more blacks than whites 
and it is not "job related." See, Griggs 
v. Duke Power Co., supra. Absent the 
confrontational Lorance rule, an employee 
might decide to attempt to earn the 
required educational degree in order to 
q u a l i f y  for the next promotional 
opportunity. Rather than encouraging 
accommodation, the Lorance rule requires 
the worker to sue his company regarding 
the Imposition of the new standard even 
before it is applied and even though the 
worker might avoid any discriminatory 
consequences of the practice by earning 
the educational degree prior to the next 
promotional opportunity.

178



56
VII] any prospect of enforcement in the 
very cases in which the need may be the 
greatest." Jackson and Matheson, The 
Continuing Violation Theory and the 
Concept of Jurisdiction In Title VII 
Suits , 67 Geo. L. J. 811, 831 (1979).
Especially where the defendants have 
I n t e n t i o n a l l y  e s t a b l i s h e d  a 
discriminatory system, the "defendant [s] 
ha[ve] no Interest that merits protection 
when [they] maintain[ ] a continuing 
policy of discrimination," even though the 
policy affecting a given employee was 
established more than 300 days earlier 
than the filing of the charges. Jld. at 
851 .

Congress did not intend to have 
the charge filing requirements in Title 
VII serve as a shield against any 
c h a l l e n g e s  to the operation of a 
discriminatory seniority or other system

179



57

filed more than 300 days after the
adoption of the system or after the
complaining employee became subject to the 
system. In amending Title VII in 1972,24 
Congress extended the time periods in 
section 706(e) for filing charges with the 
EEOC from 90 days to 180 days and from 180 
days to 300 days where the charge is
initially filed with a state or local 
government agency.

The primary legislative history 
expressing the intent of Congress in 
amending section 706(e) is contained In a 
section-by-section analysis of the bill 
agreed to by the conference committee of 
the House of Representatives and the 
Senate. This analysis was submitted to 
the Senate by Senator Williams, who was 
Chairman of the Senate conferees, and to 2

2 4 Equal Employment Opportunity Act 
of 1972, March 24, 1972, P.L. 92-261, 86
Stat. 103.

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58

the House of R e p r e s e n t a t i v e s  by 
Representative Perkins, who was Chairman 
of the House conferees, just before the 
vote was taken approving the bill as 
r e p o r t e d  out by the c o n f e r e n c e  
committee.25

This subsection [706(e)] as 
amended provides that charges be 
filed within 180 days of the 
alleged unlawful employment 
practice. Court decisions 
under the present law have shown 
an inclination to interpret this 
time limitation so as to give 
the aggrieved person the maximum 
benefit of the law; it is not 
i n t e n d e d  that such court 
decisions should be in any way 
circumscribed by the extension 
of the time limitations in this 
subsection. Existing case law 
which has determined that 
certain types of violations are 
continuing in nature, thereby 
measuring the running of the 
required time period from the

118 Cong. Rec. 7166-70 (March 6, 
1972) and 118 Cong. Rec. 7563-73 (March 8, 
1972), reprinted in Subcommittee on Labor 
of the Senate Committee on Labor and 
Public Welfare, Legislative History of the 
Equal Employment Opportunity Act of 1972 
(GPO 1972) at 1843-75 (Legislative
History).

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59
l a s t  o c c u r r e n c e  of the 
discrimination and not from the 
first occurrence is continued, 
and other interpretations of the 
courts maximizing the coverage 
of the law are not affected.

118 Cong. Rec . 7167 (March 6, 1972),
reprinted in Legislative History at 1846.
As the section-by-section analysis of the

0 ficonference bill shows, the amended

In its legislative history of 
the 1972 Act, the Subcommittee on Labor of 
the Senate Committee on Labor and Public 
Welfare emphasized the importance of the 
s e c t i o n - by - s e c t i o n analysis of the 
conference bill submitted to the Senate 
and the House of Representatives. "These 
analyses are particularly relevant as they 
represent a more detailed explanation of 
all the provisions of the bill as viewed 
by the sponsors and legislative leaders." 
Legislative History at xv n. 3.

Furthermore, the legislative history 
of the 1972 Act is directly pertinent to 
the proper interpretation of section 
706(e) because section 706(e) was amended 
and reenacted in 1972. See, Connecticut 
v. Teal, 457 U.S. 440, 447 n. 8 ( 1982);
Franks v. Bowman Transportation Co. , 424
U.S. at 764 n. 21; Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 420-21 (1975);
Johnson v. Railway Express Agency, 421
U.S. 457, 459 (1975); compare, Teamsters
v. United States , 431 U.S. at 354 n.39

(continued...)
182



60
section 706(e) was intended to adopt the 
"continuing violation" analysis whereby a 
victim may timely file from the "last

n  *7occurrence" of the unlawful practice. ' 
Accordingly, Lorance and the other 
petitioners should be entitled to file a 
timely charge from the date of the "last 
occurrence" of the discriminatory system

( . . .continued)
( " [ T ] he section of Title VII that we 
construe here, § 703(h), was enacted in
1964, not 1972. The views of members of a 
later Congress, concerning different 
sections of Title VII ... are entitled to 
little if any weight.")

Moreover, it is clear from the 
1972 amendment to § 706(g), 42 U.S.C. § 
2000e-5(g), to provide that "[b]ack pay 
liability shall not accrue from a date 
more than two years prior to the filing of 
a charge," that Congress approved•the 
continuing violation principle. Only by 
permitting courts to remedy continuing 
violations, such as the operation of a 
discriminatory seniority system, can the 
Court give effect to both the 300-day 
charge filing period and the two-year 
period for the award of back pay. See, 
Albemarle Paper Co. v. Moody, 4 2 2 U . S . 
at 410 n. 3.

183



61

which resulted in their demotion to lower- 
paying positions.

4. This Court has recognized the 
appropriateness of interpreting the 
limitations provisions of remedial 
legislation similar to Title VII to permit 
timely challenges to the operation of 
continuing discriminatory practices even 
if the practices had been established long 
before the coverage of the limitations 
period.

Under the Fair Housing Act of 
1968, 42 U.S.C. §§ 3601 et seq. , a civil
rights statute similar in purpose and 
design to Title VII, the Court interpreted 
the limitations provision28 as permitting 2

2 8 The Fair Housing Act provision, 
42 U.S.C. § 3612(a), which like Title VII 
requires the filing of an administrative 
c h a r g e  w i t h i n  180 d a y s  of the 
discriminatory act, "is comparable to the 
one imposed by the Age Act [and by Title 
VII]." Taylor v. Home Insurance Company, 
777 F .2d at 856.

184



62
the filing of a timely charge from the 
continued operation of a discriminatory 
practice . Havens Realty Corp. v. 
Coleman, 455 U.S. 363, 380-81 (1982). The 
Court determined that "a 'continuing 
v i o l a t i o n '  ... should be treated 
differently from one discrete act of 
discrimination." Id. at 380.

If there Is a continuing 
practice of racial steering, a court may 
remedy instances of discriminatory 
steering which occurred prior to the 180- 
day period for filing an administrative 
charge so long as at least one application 
of the steering practice occurred within 
the filing period. "Where the challenged 
violation Is a continuing one, the 
staleness concern [of statutes of 
l i m i t a t i o n s ]  disappears." I b i d . 
Moreover, to "ignore[ ] the continuing 
nature of the alleged violation . . .

185



63
undermines the broad remedial intent of 
Congress...." Ibid.

Similarly, an illegal system for 
distributing shoe machinery Instituted in 
1912 was subject to a timely suit in 
1955. The conduct "constituted a 
continuing violation of the Sherman Act 
... which inflicted continuing ... harm on 
Hanover [the victim of the illegal 
system]." Hanover Shoe v. United Shoe 
Machinery, Inc., 392 U.S. 481, 502 n. 15
(1968). Thus, "[a]lthough Hanover could 
have sued in 1912 for the injury then 
being inflicted, it was equally entitled 
to sue in 1955." Ibid. See also, Zenith 
Radio Corp. v, Hazeltlne Research, 401
U.S. 321, 338-39 (1971) (continuing
conspiracy to restrain trade); Corning 
Glass Works v. Brennan, 417 U.S. 188, 208
(1974) (continuing illegal pay scales).

A discriminatory seniority

186



64
system such as the one designed by AT&T 
and Local 1942 violates the law and gives 
rise to a cause of action whenever its 
continuing operation harms a female 
employee just as does the continuing 
operation of an illegal racial steering 
practice, monopolistic system, conspiracy 
in restraint of trade, or gender-based pay 
system. S e e , L a y c o c k , Continuing
V i o l a t i o n s ,  D i s p a r a t e  Impact__1 n
Compensation and other Title VII Issues, 
49 Law and Contemp. Probs. 53 (1986).

T h i s  C o u r t ' s  d e c i s i o n  in 
International Ass'n of Machinists v. NLRB, 
3 6 2  U . S .  411 ( 1 9 6 0 )  (" B r y a n
Manufacturing") does not, as AT&T appears 
to argue, Br. in O d d . 7 ,  establish a 
contrary rule for labor cases. Bryan 
Manufacturing concerned a challenge to a 
union security clause which was enacted at 
a time when the union did not represent a

187



65

majority of the employees in the unit. 
The only unfair labor practice alleged was 
the execution of the agreement at a time 
when the union lacked majority status. 
The "collective bargaining agreement and 
its enforcement are both perfectly 
lawful." 362 U.S. at 419.

The Court ruled that the claim of 
unfair labor practice was untimely under 
the National Labor Relations Act, 29 
U.S.C. § 160(b) because the only challenge 
to the enforcement of the union security 
clause; was based upon the status of the 
union at the time of the execution of the 
contract. Since a challenge to the method 
of execution of the contract was no longer 
timely, the unfair labor practice claim 
was dismissed. 362 U.S. at 417.

In this case, the collective 
bargaining provision 1tself is illegal, 
not just the manner by which it was

188



66

executed. A seniority provision which was 
intentionally designed to discriminate 
against women is neither bona fide nor 
lawful. See, section A, supra. In fact, 
lower courts have applied the Title VII 
continuing violation rule to labor cases 
"where the conduct challenged ... involves 
a continuing and allegedly improper 
practice that causes separate and 
recurring injuries to plaintiffs...." 

Sevako v. Anchor Motor Freight, Inc, , 792 
F . 2d 570, 575 (6th Cir. 1986); Lewis V.
Local Union No. 100 of Laborers' 
International, 750 F.2d 1368, 1379-80 (7th 
Cir. 1984).

If, for example, the only practice 
challenged in Lorance were the exclusion 
of women from a union meeting when the 
contract was considered, the challenge, 
like the one in Bryan Manufacturing, would 
be to the manner by which the contract

189



6 7

was executed. If the resulting contract 
were not designed to discriminate against 
women and if the contract, in fact, did 
not discriminate, then the operation of 
the contract would not be a continuing 
violation. Women could challenge their 
discriminatory exclusion from the meeting 
but not the operation of the contract 
since, as in Bryan Manufacturing, the 
contract and its enforcement would be 
"perfectly lawful."

But that is not the case in Lorance. 
The seniority forfeiture clause negotiated 
by AT&T and Local 1942 was intended to 
deny employment opportunities to women. 
Whenever that illegal clause operates to 

serve the defendants' discriminatory 
intent, there is a violation of Title VII.

5. In the s e c t i o n - b y - s e c t i o n 
analysis of the conference committee bill 
which was enacted into law, there was an

190



68
explicit recognition that courts should 
apply the Title VII filing requirements in 
view of the fact that "frequently" the 
persons who file the charges "are 
untrained laymen." 118 Cong. Rec. 7167 
(March 6, 1972), reprinted in Legislative
History at 1846. In so doing, Congress 
endorsed this Court's conclusion in a 
decision rendered shortly before the 
enactment of the Equal Employment 
Opportunity Act of 1972 that the creation 
of procedural "technicalities are 
particularly inappropriate in a statutory 
scheme in which laymen, unassisted by 
trained lawyers, initiate the process."
Love v. Pullman Co. , 404 U.S. 522, 527
( 19 7 2 ) ; see also, Zipes v. Trans World 
Airlines, 455 U.S. at 397.

The Seventh Circuit's rule In
Lorance is a trap for laypersons It is
understandable that a person, such as

191



69
Lorance, who had recently promoted to a 
traditionally male tester job would not 
have thought to file a charge merely 
because of a change In the seniority 
system under which she was employed. A 
l a y p e r s o n  naturally may think to 
challenge an employment decision, such as 
a job demotion, which actually adversely 
affects her position. If the Seventh 
Circuit's Lorance decision remains 
undisturbed, then many more laypersons, 
like Lorance, Bueschen and King, will 
fall into the trap of not filing charges 
until their job positions are affected by 
discriminatory practices, and many more 
intentional discriminators, like AT&T and 
Local 1942, will avoid the proper legal 
consequences of their intentional 
discrimination.

CONCLUSION
The petitioners respectfully request

192



7 0

that the Court reverse the judgment of the 
Seventh Circuit and hold that the 
petitioners filed timely charges within 
300 days of the demotions caused by the 
operation of the discriminatory seniority 
system.

Respectfully submitted.

JULIUS LeVONNE CHAMBERS 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street
Sixteenth Floor
New York, New York 10013

BARRY GOLDSTEIN*
PAUL HOLTZMAN

NAACP Legal Defense and 
Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

BRIDGET ARIM0ND
14 West Erie Street 
Chicago, Illinois 60610

Attorneys for Petitioners 
Patricia A. Lorance, et.al,

* Counsel of Record
December 9, 1988

193



No. 87-1428

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1988 

PATRICIA A. LOR A NCR, el at
Petitioners,

v.
AT&T TECHNOLOGIES, INC. and 

LOCAL 1942, INTERNATIONAL BROT HERHOOD 
OE ELECTRICAL WORKERS, ALL CIO

< Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR 

THE SEVENTH CIRCUIT

RESPONDENTS’ BRIEF*

Michael H. Gottesman 
Robert M. Weinberg 

Bredhoff & Kaiser 
JOOOConnecticnt Ave., N.W. 
Washington, D C. 20036 
(202) 833-9340

Joel A. D’Alba 
Stephen J. Eeinberg* 

Asher, Pavalon, Gittler 
& Greenfield, Ltd.

2 North LaSalle Street 
Chicago, Illinois 60602 
(312) 263-1500

Attorneys for Local 1942

*Cotinsel o f Record

Rex E. Lee*
David W. Carpenter 
Patrick S. Casey 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D C. 20006 
(202) 429-4000 

Gerald D. Skoning 
Charles C. Jackson 

Sf.yfarth, Shaw, Eair- 
WEATIIER & GERAI.DSON 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

Of Counsel:
Joseph Ramirez 
Robert W. Benson 
Juanita CL De Rods

Attorneys for A T<$ T

195



1

QUESTION PRESENTED

Whether, notwithstanding the 180-day statute of limitations, 
Title VII of the Civil Rights Act of 1964 permits individual em
ployees indefinitely to challenge the legality of a facially neutral 
seniority system that has been nondiscriminatorily administered 
and maintained by alleging that the system was illegally “adopt
ed” with a discriminatory motive years or decades earlier?

196



jj

TABLE OF CONTENTS
T a g e :

QUESTION PRESEN TED ...................................................  i
TABLE OF AUTHORITIES.................................................  iii
STATEMENT OF THE CASE ........................................... I

1. Background .............................................................  2
2. The 1979 “Changeover” From Plant-wide To De

partmental Seniority ...............................................  4
3. The Conceded Immediate Effects Of The 1979

“Changeover” .........................................................  7
4. This Suit .................................................................  9

SUMMARY OF ARGUMENT ....................   12
A R G U M EN T...........................................................   14

I. Petitioners Are Seeking To Engage In The Very Liti
gation Of Stale Claims That T he 180-Day Statute Of 
Limitations Is Designed To Prevent, Contrary To 
Three Decades Of Decisions Of This C o u rt................  18
A. Petitioners’ Continuing Violation Theory Was Re

jected By This Court’s Decisions in Machinists, 
Ricks, and E vans ..................................................... 18

B. Bazemore And Other Statute of Limitations Deci
sions Upon Which Petitioners And EEOC Rely 
Are Irrelevant To This Case ................................. 25

C. On A Challenge To The Adoption Of A Seniority
System, The Statute Of Limitations Runs From 
The Time Of A doption........................................... 28

II. The Principles That Bar Stale Claims Apply With Spe
cial Force To Challenges To The “Initial Adoption” Of 
A Seniority System .........................................................  30
A. The Rule Proposed By Petitioners And EEOC

Would Destroy Reasonable Expectations Created 
By Seniority Systems And Otherwise Impair Col
lective Bargaining, Contrary To The Purposes Of 
Section 703(h)...........................................................  31

B. The Court’s Section 703(h) Decisions Have Never
Adopted The Rule Petitioners Now Propose . . . .  39

CONCLUSION.......................................................................  44
APPENDIX—Statistics Of Bureau Or National Affairs On

Departmental Seniority Systems ................  45

197



Ill

TABLE OF AUTHORITIES
C a s e s !  Page(s):

Abrams v. Baylor College o f Medicine, 80? F.2d 528
(5th Cir. 1986) ........................................................ 27

Aeronautical Industrial District Lodge v. Campbell,
337 U.S. 521 (1949).................... ................ 15

American Tobacco Co. v. Patterson, 456 U.S. 63
(1982) . ..............................................    passim

Bailey v. Chesapeake & Ohio Railway Co., 852 F.2d
185 (6 th Cir. 1988) ....................... ........................  22

Bazemore v. Friday, 478 U.S. 385 (1986) ..............  12, 25-26

Benson v. General Motors Corp., 716 F.2d 862 (1 1th
Cir. 1983) .............................................      22

Bowen Products Corp., 113 N.L.R.B. 731 (1955) .. 21,22

California Brewers Ass’n. v. Bryant, 444 U.S. 598
(1980).......................................................................   15 , 3 3

41, 42
Cates v. Trans World Airlines, Inc., 561 F.2d 1064 

(2d Cir. 1977)...........................................   27

Chardon v. Fernandez, 454 U.S. 6 (1981) ..............  24,33

Clift v. International Union (UAW), 818 F.2d 623 
(7th Cir. 1987) ............................................................. 22

Cook v. Pan American World Airways, Inc., 771
F.2d 635 (2d Cir. 1985)....................................  27

De Graffenreid v. General Motors Assembly Division,
558 F.2d 480 (8 th Cir. 1977) .............................     27

Delaware State College v. Ricks, 449 U.S. 250
(1980).....................................................................   passim

Del Costello v. Teamsters, 462 U.S. 151 (1983) . . . .  19

EEOC v. Westinghouse Electric Corp., 725 F.2d 2!!
(3d Cir. 1983)..............................................................  27

198



IV

Engelhardt v. Consolidated Rail Corp., 594 F.Supp.
1157 (N.D.N.Y. 1984), ajfd , 756 F.2d 1368 (2d 
Cir. 1985) ...............................................................  22

Firefighters Local v. Stotts, 467 U.S. 561 (1984) . . .  33

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) . . . .  18, 37

Fowler v. Birmingham News Co., 608 F.2d 1055 (5th
Cir. 1979). .. ............................................................ 27

Franks v. Bowman Transportation Co., 424 U.S. 747
(1976)..................................................... .................. 31-33,

40, 42

Furr v. AT&T Technologies, Inc., 824 F.2d 1537
(10th Cir. 1987) ............................ ........................ 27

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . .  35, 38

Grimes v. Louisville and Nashville Railway Co., 583 
F.Supp. 642 (S.D. Ind. 1984), a ffd  mem., 767 
F.2d 925 (7th Cir. 1985) ....................................... 22

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,
392 U.S. 481 (1968)............................................... 26

Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982) .....................................................................  13, 26

Hill v. AT&T Technologies, Inc., 731 F.2d 175 (4th
Cir. 1984).................................................................  24

Hill v. Georgia Power Co., 786 F.2d 1071 (11th Cir.
1986) ........ ..............................................................  19

Humphrey v. Moore, 375 U.S. 335 (1964) ..............  32

Jewett v. International Telephone and Telegraph
Corp., 653 F.2d 89 (3d Cir. 1981)........................  24

Johnson v. General Electric, 840 F.2d 132 (1st Cir.
1988) .......................................................................  27

Page(s):

199



V

Lewis v. Local Union No. 100, 750 F.2d 1368 (7th
Cir. 1984)..............................................    27

Machinists Local v. NLRB, 362 U.S. 411 (1960) . . . passim

Martin v. Georgia-Pacific Corp., 568 F.2d 58 (8 th
Cir. 1977)............................................   27

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) .. 24

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ........  14

Morelock v. NCR Corp., 586 F.2d 1096 (6 th Cir.
1978) ..................................................     27

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). . . .  41

NLRB v.Auto Warehouses, Inc., 571 F.2d 860 (5th
Cir. 1978)................................................   22

Nuss v. Pan American World Airways, Inc., 634 F.2d
1234 (9th Cir. 1980).................................    27

Patterson v. American Tobacco Co., 634 F.2d 744
(4th Cir. 1980), rev'd, 456 U.S. 63 (1982).......... .. 27, 39

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ..  16, 32, 43

Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th
Cir. 1980).............................................   24

Satz v. IT T  Financial Corp., 619 F.2d 738 (8th Cir.
1980) ..................................................     27

Sevako v. Anchor Motor Freight, Inc., 792 F.2d 570
(6 th Cir. 1986) .....................................    27

Stewart v. CPC International, Inc., 679 F.2d 117
(7th Cir. 1982)............................................   24

Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982) . . 27

Taylor v. Home Insurance Co., I l l  F.2d 849 (4th 
Cir. 1985)......................................................................  27

Teamsters v. United States, 431 U.S. 324 (1977) . . . passim

Page(s);

200



VI

Irons World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977).......................................................................  16,31,32,

37, 42
United Airlines. Inc. v. Evans, 431 U.S. 533

(1977).......................................................................  passim
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th 

Cir. 1982).................................................................  24,27
Woodward v. Lehman, 717 F.2d 909 (4th Cir.

1983) .............................................................................  24
Wygant v. Jackson Board o f Education, 476 U.S. 267

(1986).......................................................................  13,32
Zangrillo v. Fashion Institute o f Technology, 601 

F. Supp. 1346 (S.D.N.Y.), a ff’d mem., 788 F.2d 2
(2d Cir. 1985)...............................................................  27

Zipes v. Trans World Airlines, Inc., 455 U.S. 385
(1982).......................................................................  30, 43

Statutes:

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

§ 703(a), 42 U.S.C. 2000e-2(a) ...............................  34
§ 703(h), 42 U.S.C. 2000e-2(h)......................... passim
§ 706(e), 42 U.S.C. 2000e-5(e) ........................  passim

Labor Management Relations Act, § 301, 29 U.S.C.
§185 .........................................................................  19,22,

27, 35
National Labor Relations Act § 10(b), 29 U.S.C.

§ 160(b) ...................................................................  18, 19, 21,
22, 35

Legislative Authorities:

S. Rep. No. 92-415 (1971) ........................................... 18
H R. Rep. No. 92-238 (1971) .......................................  18-19

Page(s):

201



118 Cong. Rec. 7167 (1972)....................................... 2.7

110 Cong. Rec. 7207 (1964). . ...................................  31

110 Cong. Rec. 7217 (1964)..............   31

Other Authorities:

G. Bloom & H. Northrup, Economics o f Labor Re
lationships (1977) . ................................................ 15

F. Elkouri & E. Elkouri, flow Arbitration Works
(4th ed. 1985) ....................... ................................ .. 32

F. Harbison, Seniority Policies and Procedures as De
veloped Through Collective Bargaining (1941) .. . 15

J. Lapp, How to Handle Problems o f Seniority
( 1 9 4 6 ) . . . ..........      15

R. Smith, L. Merrifield & D. Rothschild, Collective 
Bargaining and Labor Arbitration (1970) ..........  14

Note, Seniority Rights in Labor Relations, 47 Yale 
L.J. 73 (1937).........................................................  15

Union Contract Clauses (CCH) (1954)..................... 15

v i i

Page(s):

202



No. 87-1428

IN THE

SUPREME COURT OE THE UNITED STATES
OCTOBER TERM, 1988 

PATRICIA A. LORANCE, et at.
Petitioners,

AT&T TECHNOLOGIES, INC. and 
LOCAL 1942, INTERNATIONAL BROTHERHOOD 

OF ELECTRICAL WORKERS, AFL-CIO
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR 

THE SEVENTH CIRCUIT

RESPONDENTS’ BRIEF*

STATEMENT OF THE CASE 
Introduction

The question presented in this case is whether, despite the 180- 
day statute oflimitations, Title VII permits individual employees 
indefinitely to challenge the legality of a neutral seniority system 
that has been nondiscriminatorily administered and maintained 
for years or decades—by alleging that the “initial adoption” of 
the system was tainted by a discriminatory motive and was thus 
“illegal.”

The issue arises in a case in which a union and an employer 
entered into an agreement, in 1979, that did two things. It re
placed a plant-wide seniority system with a departmental seniori
ty system, and also required the employer to provide educational
*The Rule 28.1 Statement appears at p. ii of the Opposition to the Petition for 
Certiorari.

203



2

and other benefits to the affected employees. This agreement was 
subject to heated debate before it was approved by the union’s 
membership because employees recognized that the modification 
of vested seniority rights constituted an immediate loss and would 
inevitably alter the allocation of job benefits. Petitioners believed 
in 1979 that the abrogation of their existing plant-wide seniority 
rights constituted intentional sex discrimination. Yet petitioners 
did not file EEOC charges or bring this suit until after the modi
fied seniority system had operated for years and after petitioners’ 
co-workers and the employer had irrevocably changed their posi
tions in reliance on the 1979 agreement. This suit was brought to 
dismantle the departmental seniority system and to reinstate the 
plant-wide seniority system that was replaced in 1979.

The departmental seniority system is neutral in its operation. 
The sole basis for petitioners' challenges is that the plant-wide 
system was illegally abrogated with a discriminatory motive in 
1979. Thus, petitioners and EEOC claim that the question of the 
company’s and the union’s motive in 1979 (and the lawfulness of 
the system) can be litigated anytime the seniority system is “ap
plied” to allocate job benefits, be that 1983, 1993, or 2083.1 As 
the facts of this case illustrate, this epitomizes the litigation of 
stale claims that the statute of limitations is designed to bar. 
Petitioners’ and EEOC’s rule would further destroy the “legiti
mate expectations” of innocent co-workers and also subvert col
lective bargaining, contrary to the purposes of Section 703(h) of 
the Act.

1. Background. This case arises at the Montgomery Works 
facility of AT&T Technologies (“AT&T”), which is located in 
Aurora, Illinois. At Montgomery Works, AT&T manufactures 
electronic components used in data processing and data commu
nications. J.A. 17-18, (1 9. The 1500 hourly workers at Montgom
ery Works are represented by Local 1942 of the International 
Brotherhood of Electrical Workers (the “Union”). J.A. 13-14, 17, *

'See Petitioners’ Brief (“Pet. Br.”); Brief For The United States And 
The Equal Employment Opportunity Commission As Amici Curiae 
Supporting Petitioners (“EEOC Br ”).

204



3

DU 6(a), 8 . Approximately 1100 of these 1500 union members are 
women. R.6 8B at 117.

Among the highest paid hourly positions at this AT&T plant 
are the 200 to 250 “tester” jobs, which comprise job grades 35-39 
and are collectively referred to as the “T ester Universe.” J.A. 18- 
19, HH 10-11,13. The lower-paid non-tester production jobs com
prise grades 32-35. Id. Tester jobs are highly technical and re
quire special skills. No person may become a tester unless he or 
she takes college-level electronics courses and passes AT&T’s 
Montgomery Electronics Test. J.A. 19-20, H 13; R.68B-1, Ex. 15. 
It is undisputed that these educational and testing requirements 
are job-related. R.6 8 A at 11-12; R.6 8B at 19-20.

Prior to 1979, all job promotions, downgrades, and layoffs for 
the Montgomery Works hourly employees were governed by 
“plant-wide seniority," an employee's total length of service with 
AT&T. J.A. 20, H 15. Thus, any employee in the production job 
grades could theoretically have satisfied the educational require
ments for tester jobs, exercised his or her plant-wide seniority to 
be promoted into the tester universe, and had this plant-wide 
seniority govern future promotions and demotions within the 
tester universe. As a practical matter, however, this did not occur. 
Few such workers undertook the necessary course work to obtain 
tester jobs, and these tester jobs were, for entirely lawful reasons,2 
historically filled by sufficiently-skilled males who were hired “off 
the street” (and by a “few males” who first held lower-graded 
non-tester jobs). J.A. 19, H 12.

Beginning in 1970, a few females in lower-graded production 
jobs prepared for and passed the Montgomery Test, and then 
exercised their seniority rights to become testers. By 1978, there 
were approximately 15 such female testers. J.A. 19, (| 13.

2Contrary to Petitioners’ Brief (pp. 33, 35), it has never been alleged 
that AT&T engaged in sex discrimination in its past hiring of testers. 
The fact that testers were predominantly males simply reflected that it 
was males who enrolled in electronics courses and passed the test. There 
is nothing in the pleadings nor the record indicating that this disparity 
had anything to do with AT&T or the Union. See R.68B at 1 8 - 1 9 ,  (61.

205



4

Because plant-wide seniority then governed eligibility for all 
job movements, the fact that employees with experience in pro
duction jobs were, for the first time, becoming testers produced 
changes in the expertise of employees in the higher grades within 
the tester universe. As a practical matter, length of service as a 
tester had formerly governed all promotions within the tester 
universe. The reason was that in almost all cases, employees had 
no prior plant experience when they became testers. See J.A. 19, 
H 12. However, because several employees with prior plant se
niority had become testers, employees with little or no tester 
proficiency were promoted to higher grade tester jobs ahead of 
employees with longer experience as testers. J.A. 21, 11 16. This 
occurred at a time when these tester positions were requiring 
ever-increasing technical knowledge and skills.

2. The 1979 “Changeover” From Plant-wide To Departmental 
Seniority. In late 1978 and 1979, the Union and AT&T engaged 
in collective bargaining to address these and other problems. 
Cert. App. 4a. The result was an agreement to modify the collec
tive bargaining agreement by adopting a “Tester Concept.” J.A. 
50-56. This was a package of interrelated provisions that address
ed traditional employer concerns (by establishing separate senior
ity lists for skilled and unskilled workers) and that contained 
educational benefits for the class of employees that the three peti
tioners have sought to represent. Id.

There were three aspects to the 1979 Tester Concept. First, the 
1979 Tester Agreement made it easier for lower grade production 
employees (nearly all of whom were women) to become testers. 
AT&T agreed to provide an “open laboratory” training program 
for production employees who desired to become testers. J.A. 54- 
55, 1j M. Employees who successfully completed this program 
would receive three hours of college credit, which could qualify 
the employee to take the Montgomery Electronics Test. Id. 
AT&T also agreed to continue counseling those employees train
ing to become testers. J.A. 55, D N. Qualifications for these pro
grams were gender-neutral.

Second, the 1979 Tester Agreement provided educational ben
efits to employees who had become testers and established educa

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5
tional requirements affecting promotion to the higher tester 
grades. J.A. 51, 53-54,1|(| A(3), H, K, L. The agreement required 
AT&T to establish special ongoing educational programs for em
ployees who had recently become testers. These programs con
sisted of five modules of instruction in advanced electronics, data 
processing, and data communications, 1 which concededly are all 
job-related for the higher grades of testers. J.A. 57-58; R.68A at 
18; R.6 8B at 92; R.68C at 156. Although exceptions were made 
for two of the petitioners,3 4 the agreement provided that employ
ees would ordinarily have to pass the five modules before they 
could be promoted to the higher tester positions (grades 37-39). 
J.A. 51, (| A(3) .5 Each petitioner enrolled in these training mod
ules shortly after her entry into the tester universe. R.6 8A at 20; 
R.6 8B at 12; R.68C at 39, 154-56.

Third, the agreement abolished the plant-wide seniority system 
insofar as it governed promotions, or any downgrades, within the 
tester universe. J.A. 21, (1 17; J.A. 45-46; J.A. 51, jl A(l). It 
provided that all employees at Montgomery Works would receive 
two seniority dates. The first, based on plant-wide seniority, gov
erned all benefits, all layoffs, and job movements within the pro
duction grades, and the second, a tester date, governed eligibility 
for promotions and downgrades within the tester universe. The 
tester date would be based on length of service in the tester uni
verse except that the plant-wide seniority date would apply once 
the employee either passed the five training modules or had com
pleted five years experience as a tester. J.A. 52, (1 B; R.68B-1, Ex. 
16.

In short, the Tester Concept nullified certain existing plant
wide seniority rights and adopted a departmental seniority system

3The five modules in the tester training program were: (I) Advanced 
Electronics; (II) Linear Integrated Circuits; (III) Digital Devices & Mi
crocomputers; (IV) Basic Programming, and (V) Data Communica
tions. J.A. 57-58.

4Petitioner Lorance became a 38 grade tester and petitioner King a 
37 grade tester prior to completing the module training program. J.A. 
22-23, (HI 19(a) (b); R.68C at 157-60; R.68B-I, Ex. 1; R.68C-1, Ex. 1.

5lf the modules had not yet been completed successfully, promotions 
to grade 37 and above would be conditioned upon their successful com
pletion. J.A. 53, (1 1

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6

for testers that, on its face, was narrowly tailored to the objective 
of assuring that higher grade testers have the skills or experience 
that these technically complex jobs require.

By its terms, this modification to the collective bargaining 
agreement would not be effective unless it was approved by a vote 
of the Union’s membership, 75% of whom were women. J.A. 55; 
R.6 8 B at 117. The Union called several meetings to discuss the 
concept during the first six months of 1979, and the concept was 
heatedly debated. Cert. App. 16a. A June 28, 1979 meeting was 
called to vote on the change, and several female employees, in
cluding at least one petitioner who was not then a tester,6 lobbied 
female co-workers to attend the meeting and vote against the 
Tester Concept. Cert. App. 5a; R.68A at 46-47; R.68C at 90, 98. 
There was an unusually large turnout of 150 members (about 
10%) at the union meeting; the new tester agreement was ap
proved by a hand vote of about 90-60, which, according to peti
tioners, approximated the proportion of men to women at the 
meeting. Cert. App. 5a. Each petitioner attended the meeting and 
voted against the tester program. Id.

Petitioners’ sole claim is that the 1979 “changeover” to a de
partmental system was adopted with a discriminatory intent. This 
claim rests on statements that a few male employees allegedly 
made at the three union meetings in 1979. Pet. Br., pp. 9-10 & 
n.3; J.A. 14, (| 6 (b); R.6 8 B at 84, 91, 103; R.68C at 99-100. 
Petitioners cannot recall which employees made those statements 
and are unable to remember innumerable other significant details 
involving the events in 1979. R.6 8 B at 86 , 91, 103; R.68C at 47, 
72, 75, 82, 100. As one petitioner testified, ”[t]he longer I seemed 
to think about it, the more things kind of blurred together. It was 
so long ago.” R.68C at 70.

Petitioner Lorance had become a tester on October 30, 1978. Peti
tioners King and Bueschen became testers on February 25, 1980 and on 
November 30, 1980, which was after the 1979 agreement took effect. 
J.A. 22-24, n  19(a)-(c).

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7

In addition, no facts are alleged that would suggest that the 
statements allegedly made by unnamed employees represented 
the views of the union leadership. See R.68A at 186-87; R.6 8 B at 
91, 103, 193; R.68C at 100. Nor is it alleged that AT&T knew 
what had been said at the union meetings, much less that anyone 
from AT&T who negotiated the Tester Concept then acted other 
than for legitimate business reasons. See R.6 RB at 111-13, 192-93.

3. The Conceded Immediate Effects Of The 1979 “Change
over”. The agreement containing the Tester Concept became ef
fective on August I, 1979.7 * 9 As petitioners' complaint asserts, the 
1979 changeover to a departmental seniority system immediately 
affected female testers and non-testers alike, in three separate 
ways.*

First, it meant that female testers (like petitioner Lorance) who 
had greater plant-wide seniority than male testers lost the ability 
to exercise this seniority for promotions and other job movements 
as testers. Consequently, they would inevitably be promoted less 
quickly within the Tester Universe than they would have been 
under the prior plant-wide system (and, correctively, would be 
more susceptible to downgrades if there was a lack of work). J.A. 
21-25, UK 18-20. Indeed, it was the immediate effect of the new 
seniority system on promotions that was the subject of the “heat
ed” debates at the 1979 union meetings,'1 and petitioners, in fact, 
alleged that the 1979 modification of their seniority rights meant

7On July 23, 1979, AT&T and the Union executed the agreement to 
implement the new Tester Concept, effective August 1, 1979. In August, 
1980, the 1979 tester agreement was incorporated into a new compre
hensive collective bargaining agreement that was negotiated that year. 
J.A. 55-56; Cert. App. 17a.

RAs one petitioner testified, “anything that concerns a contractual 
change at Western Electric [now known as AT&T] between Local 
Union 1942 and Western Electric affects anyone that works at that 
plant”. R.68C at 214. Consequently, "[t]he tester's concept affects every 
woman that works at Western Electric." Id. at 213.

9At the meetings, some male testers allegedly complained that “wom
en were coming in [to tester positions] with [greater plant-wide] seniori
ty and passing the men up [for promotions] and they were tired of it," 
R.68B at 103; see id. at 84; R.68C at 99-100.

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8

they were promoted less quickly10 * (and denied some promotions 
altogether). J.A. 22-24, W| 19, 20.

Second, as petitioners alleged, the changeover to the depart
mental seniority system effectively compelled testers to enroll in 
the tester “module” training program. 11 Completion of the five 
modules would immediately restore a tester’s plant-wide seniori
ty, and could lead to promotion to higher job grades. J.A. 51, 
H A(3); R.68B-1, Ex. 16.

Third, petitioners alleged that the 1979 changeover immediate
ly injured female employees who were not yet testers (like peti
tioners King and Bueschen). Petitioners claim it “discourag[ed] 
women from entering the traditionally-male tester jobs” because 
they had “lost their right to carry their plant seniority into tester 
positions.” J.A. 21-22, 25, HI 18, 20.

In 1979, petitioners believed that the nullification of their 
plant-wide seniority rights and concomitant adoption of the tester 
seniority system constituted unlawful sex discrimination. As one 
petitioner testified, “[ajlready by this time [in 1979] I had made 
the decision in my mind that what was going on was illegal and 
that I was going to continue my schooling, get my job and stick 
to my guns and let a court decide what was right or wrong.” 
R.68C at 146 (petitioner King); see R.6 8B at 118 (petitioner 
Lorance). That was why petitioners had opposed the tester con
cept throughout the first six months of 1979. Yet none filed 
charges when the system was adopted. The District Court found 
that each petitioner made a conscious decision to forego filing 
claims and that each had “sat on [her] rights.” Cert. App. 26a- 
27a.

l0Petitioner Lorance worked her way up from a 35 grade tester in 
1978 to a 38 grade tester. J.A. 22, 1) 19(a). Petitioner King was not a 
tester in 1979, but became a 35 grade tester in 1980 and worked her way 
up to a 37 grade tester. J.A. 23, H 19(b).

"Each of the three petitioners enrolled in the training modules be
cause “this is what [they] had to do to get [their] time back," and two 
of them eventually successfully completed all five modules (although not 
before their 1982 downgrades). R.68A at 20; R.681J at 12, 74; R.68C at 
39, 154-56.

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9

4. This Suit. In August and November, 1982, there was an 
undisputed lack of work at Montgomery Works, and each peti
tioner was downgraded during a plant-wide reduction in force. ’2 
Petitioners filed EEOC charges on April 13, 1983 and April 21, 
1983 challenging the lawfulness of the departmental seniority sys
tem. Cert. App. 18a. This occurred nearly four years after AT&T 
and the Union instituted the Tester Concept, and after numerous 
employment benefits had been allocated under it. EEOC conduct
ed an investigation, found no reasonable cause to believe that the 
charges were true, and issued right-to-sue letters. See EEOC Br., 
pp. 3-4.

Petitioners filed their complaint in the United States District 
Court for the Northern District of Illinois on September 20, 1983. 
Petitioners’ amended complaint was filed as a class action on 
behalf of all female employees at Montgomery Works who “are 
or were employed as testers, whose seniority rights have been 
impaired,” and females who are not festers but “who have been 
or will be deterred from seeking promotion to tester positions” 
because they “have been deprived of their right to carry their 
plant seniority into tester positions.” J.A. 13, (| 6 . The complaint 
alleges that the 1979 “change-over from plant seniority to ‘tester’ 
seniority” constituted illegal “manipulation of the seniority sys
tem” because it “was motivated by an intent to discriminate 
against women.” J.A. 14, 16, (](] 6(b), (0; R-31 at 3; see Cert. App. 
43a.

Petitioners’ complaint thus prayed that the four-year old de
partmental seniority system for testers be nullified and the earlier 
plant-wide system be reinstated. Specifically, it prayed that the

,2Petitioner King was downgraded from a tester Grade 37 to a Grade 
36 position on August 23, 1982 (J.A. 23, (| 19(b)); petitioner Lorance 
was downgraded from a Grade 38 position to a Grade 37 position on 
November 15, 1982, but promoted back to another (allegedly less pre
ferred) Grade 38 position in November, 1983. J.A. 22, (| 19(a). Petition
er Bueschen was downgraded from a tester Grade 35 to a non-tester 
position in November, 1982, was upgraded to a tester Grade 36 position 
in September, 1983, but was downgraded to a non-tester position in 
January, 1984. J.A. 24, 19(c).

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10

tester seniority system be “declared unlawful and enjoined," that 
AT&T and the Union be required “to revert to the use of plant 
seniority for purposes of promotion and down-grading of testers," 
and that the Court make whole all women adversely affected by 
the use of tester seniority. J.A. 15, 26-27, ]|1| 6(e), B, D.

Following initial discovery, AT&T moved for summary judg
ment on the ground that petitioners’ claims were barred by the 
statute of limitations because the “unlawful employment prac
tice” that petitioners alleged was the 1979 “changeover” from the 
plant-wide to the departmental seniority system, and their EEOC 
charges had concededly been filed more than 180 (or 300) days 
after AT&T and the Union had adopted the new system.

In their summary judgment opposition (and in each subsequent 
filing), petitioners conceded that their claim depended solely on 
the alleged illegality of the “adoption” of the 1979 agreement, 11 
and that the departmental seniority system was neutral on its face 
and had been applied in strict compliance with its terms, irrespec
tive of sex. See Cert. App. 9a; R.6 8B at 147, 185-87; R.68C at 
137, 149, 186-87. However, petitioners claimed that (1) they were 
not “fully aware” of the facts that gave rise to this Title VII claim 
prior to their downgrades (R.31 at 18-21) and (2) in any event, 
the lawfulness of a facially neutral seniority system can be chal
lenged on the ground that it was adopted with discriminatory 
intent each and every time that the system is applied to allocate 
job benefits. R.31 at 4-18.

The District Court rejected both claims. First, it found that 
petitioners’ testimony established that each was aware of her Title 
VII claims when the tester system was adopted in 1979 and on 3

l3As petitioners stated in their Opposition to Summary Judgment, 
“their contention [is] that the company and the union intentionally 
discriminated against women when they replaced the system of plant 
seniority with a seniority system based on tester seniority” in 1979 and 
that “the adoption of the [departmental] system [was] purposefully dis
criminatory (and hence unlawful).” R.31 at 2 (emphasis added) & 7 
(emphasis in original). That this is their sole claim was reiterated in 
Appellants’ Brief in the Court of Appeals (pp. 3-4), the Petition for 
Certiorari (p. 31), and Petitioners’ Brief in this Court (pp. 14-15).

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II
subsequent dates and that petitioners had “sat on their [Title VIIJ 
rights.” Cert. App. 26a-27a, 32a; see id. at 47a-49a. Second, the 
District Court rejected petitioners’ claim that the adoption of a 
neutral seniority system can be challenged whenever a downgrade 
occurs. The court concluded that “[t]he resulting denials of pro
motion and downgradings” were merely “present effects of the 
past discriminatory act of recalculating seniority credit” and that 
petitioners’ claims were barred by the statute of limitations be
cause EEOC charges were not fded within 180 days of the date 
when their seniority rights were recalculated, under any view of 
when that date occurred. Cert. App. 26a, 32a.

The District Court did not accept AT&T’s contention (and the 
Magistrate’s conclusion, Cert. App. 43a-44a, 49a) that the statute 
of limitations ran from the date that the employees knew or rea
sonably should have known that the plant-wide system had been 
abrogated and the departmental system adopted. The District 
Court stated that the statute of limitations could not run until an 
employee actually entered the tester job classification and thereby 
became “subject to” the seniority system. Cert. App. 31a-32a & 
n.6 . In the case of two of the petitioners, this did not occur until 
1980. Id. Because those dates, too, were several years before 
EEOC charges were filed, the District Court dismissed each of 
the petitioners’ claims. Cert. App. 33a.

The United States Court of Appeals for the Seventh Circuit 
affirmed. It emphasized that this case involved a facially neutral 
seniority system that had been nondiscriminatoriiy applied, and 
the court rejected petitioners’ contention that each application of 
such a system can constitute a separate act of discrimination. 
Cert. App. 8a-9a. It reasoned that, otherwise, employees could 
challenge the legality of a seniority system “indefinitely and pos
sibly require the “drastic restructuring” of a neutral system after 
it had operated for years, or even decades. Cert. App. 8a.

This holding required dismissal of the case because once peli 
tioners’ extreme contention was rejected, this case was untimely 
under any standard. Like the District Court, however, the Court 
of Appeals focused on the time that petitioners actually entered

213



12
the tester job classification, staling “that the relevant discrimina
tory act that triggers the period of limitations occurs at the time 
an employee becomes subject to a facially-neutral but discrimina
tory seniority system that the employee knows, or reasonably 
should know, is discriminatory.” Cert. App. 9a.

SUMMARY OF ARGUMENT
Petitioners challenge a departmental seniority system that is 

neutral on its face and that concededly was nondiscriminatorily 
administered and maintained during the 180-day limitations pe
riod. The sole basis for petitioners’ claim is their allegation that 
this system was illegally “adopted” because AT&T and the Union 
allegedly acted with a discriminatory motive when they nullified 
certain plant-wide seniority rights, and adopted the departmental 
system, four years before EEOC charges were filed. Under peti
tioners’ theory, moreover, the same challenge to these 1979 events 
could be filed anytime the system is “applied,” even if it is decades 
after those occurrences. This is the litigation of stale claims that 
Title VIPs 180-day statute of limitations is designed to bar. In 
this case the problem is compounded by the fact that the sub
stance of the inquiry—discriminatory motive—rests on evidence 
that fades and deteriorates rapidly.

First, it is well settled that when, as here, the conduct alleged 
within the limitations period is “lawful on the face of things,” a 
plaintiff cannot “convert” this “otherwise legal conduct” into 
“something illegal” by litigating conduct or events occurring 
more than 180 days before charges were filed. Machinists Local 
v. NLRB, 362 U.S. 411,419 (1960); accord, Delaware State Col
lege v. Ricks, 449 U.S. 250 (1980); United Airlines, Inc. v. Evans, 
431 U.S. 553 (1977). This epitomizes the prosecution of stale 
claims that the statute of limitations bars, and that is precisely 
what petitioners are attempting to do here.

Petitioners and EEOC rely on cases that are simply inapposite. 
In each, the plaintiffs alleged facts within the limitations period 
that themselves constituted a violation of Title VII, so there was 
no staleness problem. E.g., Bazemore v. Friday, 478 U.S. 385

214



1 3

(1986); Havens Really Corp. v. Coleman. 455 U.S. 363, 380-81 
(1982). These decisions simply stand for the proposition that vio
lations occurring within the limitations period are actionable and 
that it is no defense that the same violations also were committed 
outside the limitations period. In contrast, when, as here, the 
conduct within the limitations period is, on its face, lawful, the 
statute of limitations bars a claim that the conduct is illegal be
cause it “continues” or “gives effect” to an unlawful employment 
practice that occurred outside the limitations period.

These principles have special force in a case challenging an 
agreement modifying seniority rights. As the Court has held, se
niority rights are the “most valuable capital asset” an employee 
“owns” (IVygant v. Jackson Board o f Education, 476 U.S. 267, 
283 (1986)), and an agreement modifying vested seniority rights 
produces a loss that is immediately actionable. American Tobacco 
Co. v. Patterson, 456 U.S. 63 (1982). Conversely, as the facts of 
this case demonstrate, if EEOC and petitioners were correct that 
facially neutral and lawfully administered systems can be invali
dated on the ground that they were adopted with a discriminatory 
motive years or decades earlier, it would destroy the “legitimate 
expectations” of innocent workers, subvert employers’ interests, 
and inhibit collective bargaining, contrary to the purposes of Sec
tion 703(h) of Title VII and the most fundamental objectives of 
our labor laws.

Finally, there is no substance to petitioners’ contention that the 
Court has held, on seven separate occasions, that the operation 
of neutral seniority systems can be challenged on the ground they 
were illegally adopted years or decades earlier. There was no 
statute of limitations issue raised in five of the decisions petition
ers cite, presumably because each was timely under respondents 
position and the Court of Appeal’s holding. The other two deci
sions foreclose petitioners’ claim. American Tobacco Co. v. 
Patterson, supra; United Airlines, Inc. v. Evans, supra.

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14

ARGUMENT
Introduction

The 180-day'4 statute of limitations of Section 706(e) of the 
Civil Rights Act of 1964 represents a congressional “judgment 
that most genuine claims of discrimination would be promptly 
asserted and that the costs associated with processing and defend
ing stale or dormant claims outweigh [any] federal interest in 
guaranteeing a remedy.” Mohasco Corp. v. Silver, 447 U.S. 807, 
820 (1980); accord Delaware State College v. Ricks, 449 U.S. 250, 
259-60 (1980). Under this principle, the limitations period must 
be keyed to the wrong that the plaintiff alleges. As this Court has 
stated, “[determining the timeliness of [an] EEOC complaint, 
and [an] ensuing lawsuit,” thus requires a court to examine the 
petitioners’ complaint and “to identify precisely the ‘unlawful 
employment practice’ of which [they] complain.” Ricks, 449 U.S. 
at 257.

In this case, petitioners have complained of only one such 
“practice”: the 1979 “changeover” from a plant-wide seniority 
system to a departmental seniority system for testers, which they 
allege “was motivated by an intent to discriminate against wom
en.” See pp. 9-10 & n.13, supra.

Petitioners do not allege that the operation of the departmental 
seniority system was itself unlawful during the limitations period. 
To the contrary, it is clear from the complaint that petitioners 
would have no claim at all if the tester seniority system had 
always existed at Montgomery Works, rather than having been 
adopted to replace an earlier plant-wide seniority system in 1979.

First, the tester system is conceded to be facially lawful. De
partmental seniority systems are commonplace in industry;14 15 they

14In this case, it is irrelevant whether petitioners’ claims are governed 
by the generally applicable 180-day statute of limitations or by the 300- 
day limitations period that applies when charges were first pursued in a 
state or local equal employment agency. See Cert. App. 6a n.2. For 
simplicity sake, this Brief will refer to the generally applicable 180-day 
period.

I5R. Smith, L. Merrifield & D. Rothschild, Collective Bargaining and 
Labor Arbitration 445 (1970) (“In larger establishments, where opera- 
(Foot note continued on nest page)

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1 5

are sought by employers when jobs require special skills or train
ing, 16 and the Court has approved departmental systems in the 
past, irrespective of their effects. 17

Here, moreover, the 1979 agreement, on its face, represents 
what employers and unions are supposed to do in collective bar
gaining. The agreement is a classic accommodation of employer 
and employee interests. The tester seniority system, on its face, is 
narrowly tailored to achieve the employer's interest in assuring 
that technically proficient employees fill jobs requiring sophisti
cated knowledge of data processing and communications, and the 
agreement further contains provisions that will, on their face, 
open up these jobs to employees in lower grades (who are over
whelmingly women) .18 See pp. 4-6, supra. These are the kinds of

(Footnote continued from previous page)
tions are more varied, it is common to establish separate seniority lists 
on departmental lines or occupational groupings.”); accord, i. Lapp, 
How to Handle Problems of Seniority 115 (1946). The Bureau of Nation
al Affairs (“BNA”) has determined that departmental seniority systems 
are established in 66% of its representative sample of collective bargain
ing agreements that contain seniority provisions and that in several 
industries, 100% of the contracts contain departmental seniority sys
tems. See Appendix to this Brief.

,6As economists and others recognize, employers generally “preferf ] 
the smallest possible seniority districts” (G. Bloom & H. Northrop, 
Economics of Labor Relationships 187 (1977)) and seek departmental 
seniority systems for skilled and highly specialized employees ‘‘for the 
very obvious reason that a skilled tradesman or specialist cannot be 
replaced by an unskilled or semi-skilled worker." J. Lapp, How To 
Handle Problems of Seniority 43 (1946); accord; F. Harbison, Seniority 
Policies and Procedures as Developed Through Collective Bargaining 23 
(1941); Union Contract Clauses (CCH) j] 51, p. 428 (1954); Note, Se
niority Rights in Labor Relations, 47 Yale L. J. 73, 85 (1937).

17Teamsters v. United States, 431 U S. .324, 355-56 & n.4l (1977); see 
also, California Brewers Ass n v. Bryant, 444 U S. 598, 608 (1980); Aero
nautical Industrial District Lodge v. Campbell, 337 U.S. 521, 526-27 
(1949).

l8Unlike other departmental seniority systems, the length of service 
as a tester governs only those persons who have, not passed certain 
concededly job-related courses of instruction or acquired equivalent ex- 
(Footnote continued on next page)

217



16

provisions that can be adopted by unions and employers for good 
reasons and that Section 703(h) would then protect from liability, 
even if the seniority system had adverse effects on women and 
minorities in its actual operation. 19

Second, petitioners have conceded that the departmental sys
tem was not discriminatorily maintained and administered during 
the limitations period. See p. 10, supra. Men and women testers 
alike have been promoted to higher grade tester positions, or 
demoted to lower grades, in strict accordance with the terms of 
the facially neutral system that was adopted in 1979. Id.20 Peti
tioners concededly were downgraded in 1982 because they were 
the “low [persons] on the totem pole” under neutral seniority

(Footnote continued from previous page)
perience. All testers (male and female alike) may “bridge" their plant
wide seniority by successfully completing the five training modules, and 
the completion of these courses makes the tester eligible for promotions 
to higher grade positions where there is, by definition, greater job secu
rity. Further, all testers “bridge” their plant-wide seniority by complet
ing five years’ experience as a tester. In addition, the 1979 tester agree
ment included educational benefits that make it more likely that the 
lower grade employees would become testers. See pp. 4-6, supra.

It is for these reasons that it is doubtful that the 1979 Tester Concept 
would, over time, have a disproportionate adverse impact on women. 
All women with prior plant experience (upon completion of the five 
training modules) would have greater tester seniority than men with 
more experience as testers, but less overall service in the plant.

,9In Section 703(h) of Title VII, Congress made it explicit it did not 
intend to permit the routine and nondiscriminalory application of a 
neutral seniority system to be invalidated merely because it perpetuates 
past racial or sexual imbalances in the workforce or has other adverse 
effects on women or minorities. See 42 U.S.C. § 2000e-2(h); Pullman- 
Standard v. Swint, 456 U S. 273, 277 (1982); Trans World Airlines, Inc. 
v. Hardison, 432 U S. 63, 82 (1977); Teamsters v. United States, 431 U S. 
324, 353-54 (1977).

20For example, the women who became testers in the early to mid 
1970’s or who passed the five modules enjoy their full plant-wide se
niority, were promoted ahead of male testers with greater tester experi
ence, and were protected from downgrades. Conversely, when particular 
women were passed over for promotions, or downgraded, it was because 
of their tester seniority dates under a neutral system, not their sex.

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17

lists, not because of their sex. As Congress has made explicit, and 
as the Court has repeatedly held, that is not a violation of Title 
VII. See p. 16 n.19, supra & p. 31, n.34, infra.

Accordingly, in challenging the 1982 downgrades and the con
tinued operation of the departmental seniority system, petitioners 
have made a single allegation: that the initial "adoption of the 
[departmental] system [was] purposefully discriminatory (and 
hence unlawful)” because “the company and the union intention
ally discriminated against women when they replaced the system 
of plant seniority with a seniority system based on tester seniori
ty” in 1979. R. 31 at 2 & 7 (emphasis in original). In short, 
petitioners are challenging the 1979 abrogation of the earlier 
plant-wide system, not the subsequent operation of the depart
mental system as such. Their claim is that their plant-wide se
niority rights were discriminatorily nullified in 1979 and that 
respondents are committing a new violation of Title VII each 
time job benefits are allocated under a departmental seniority 
system, rather than a plant-wide system. Yet contrary to the 
teaching of Ricks, they seek to measure their limitations period 
by events other than those on which their claim rests.

This is squarely barred by the 180-day statute of limitations. 
Part I of this Brief demonstrates that Section 706(e) bars any 
claim that depends on the litigation of an event outside the 180- 
day limitations period.21 See pp. 18-29, infra. Part II of this Brief 
shows that this principle applies with special force to a challenge 
to the modification of contractual rights under a seniority system. 
The rule proposed by petitioners and EEOC would destroy ex
pectations of innocent employees and subvert the collective bar
gaining process itself, contrary to the purposes of Section 703(h) 
of the Act. See pp. 30-44, infra.

There is only one rule that is consistent with the Act: a facially 
neutral and lawfully administered seniority system cannot be

2lContrary to petitioners’ (Br., pp. 43-44) and EEOC's (Br., pp. 7, 
17-22) contentions, respondents are not claiming that Section 703(h) has 
somehow modified the statute of limitations contained in Section 706(e) 
of the Act. Rather, respondents rely upon the same statute of limitation 
principles that apply to all claims under Title VII.

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18

challenged on the sole ground that it was illegally adopted 
unless that challenge is brought within 180 days of the date of 
adoption.
I. Petitioners Are Seeking To Engage In The Very Litigation 

Of Stale Claims That The 180-Day Statute Of Limitations 
Is Designed To Prevent, Contrary To Three Decades Of 
Decisions Of This Court.
Petitioners make the extreme claim that the operation of a 

neutral and otherwise lawful seniority system can be challenged 
each and every time it is “applied” to allocate job benefits by 
alleging that the system was illegally adopted with a discrimina
tory motive years or decades earlier. That extreme position is 
necessary to their case. But it is not, and cannot be, the law. If it 
were, the Union’s and AT&T’s motive in 1979 could be litigated 
indefinitely, be it in 1982, 1988, or 2088. This epitomizes the 
litigation of stale claims that Congress sought to prevent. This is 
especially so because, as petitioners’ testimony demonstrates, evi
dence of motive peculiarly depends on recollections that quickly 
become dim or confused and that involve witnesses who may be 
impossible to identify, much less find. See p. 6, supra. According
ly, the Court has made it explicit that such claims are barred by 
the statute of limitations.
A. Petitioners’ Continuing Violation Theory Was Rejected By 

This Court’s Decisions In Machinists, Ricks, And Evans.
The seminal statute of limitations decision on this issue is Ma

chinists Local v. NLRB, 362 U.S. 411 (1960). It arose under the 
statute that provided the model for the 180-day limitations period 
of Title VII: the National Labor Relations Act (NLRA).22 The
22The Court has frequently recognized that the NLRA provides the 

model for Title VII. See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 
226 n.8 (1982). Here, moreover, the section-by-section analysis of the 
1972 amendments to Title VII provide that Section 706(e) “would per
mit charges to be filed [under] a limitation period similar to that con
tained in the Labor-Management Relations Act, as amended (29 U.S.C. 
160(b)).” S. Rep. No. 92-415, 36-37 (1971); see also H R. Rep. No. 
(Footnote continued on next page)

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19

issue in Machinists was whether the Board could challenge the 
enforcement of a union security clause on the ground that it had 
been illegally adopted outside the six-month limitations period 
(because the union allegedly lacked the support of a majority of 
the employees at the time of adoption). Id. at 414. The Board 
made the same claim that petitioners raise here: although the 
adoption of the clause could no longer be challenged as such, the 
enforcement had occurred within the limitations period, and the 
enforcement of an illegally adopted clause is a “continuing viola
tion” that gives efTect to the earlier illegal adoption and can al
ways be challenged. Id. at 415.

However, the Court held that the statute of limitations barred 
this claim because it would produce the very litigation of stale 
claims that the statute of limitations was designed to prevent. Id. 
at 419, 425. The Court recognized that there would have been no 
staleness problem if the provision of the collective bargaining 
agreement had been unlawful on its face or if it had been alleged 
that the agreement’s terms had been unlawfully administered 
within the limitations period. In either event, the conduct within 
the limitations period could be found unlawful without reference 
to any other events. Id. at 423.23 However, no such allegations
(Footnote continued from previous page)
92-238, 65-66 (1971) (Minority Report). This six-month period applies 
to both unfair labor practice charges under the National Labor Rela
tions Act (“N LRA ”) and to employees’ “hybrid” suits for breach of 
collective bargaining agreements under § 301 of the Labor Management 
Relations Act (“ LM RA”). See Del Costello v. Teamsters, 462 U.S. 151 
(1983).

Thus, courts have held that the six-month statute of limitations in the 
NLRA and the 180-day limitations period in Title VII were designed to 
serve the same purposes; "Congress selected an abbreviated limitations 
period for both statutes to facilitate the twin goals of preventing stale 
claims and encouraging prompt resolution of employment disputes.” 
Hill v. Georgia Power Co., 786 F.2d 1071, 1076 n.9 (11th Cir. 1986).

23The Court stated that the statute of limitations does not bar the 
evidentiary use of events outside the limitations period as “background 
evidence” in a case “where occurrences within the six-month limitations 
(Footnote continued on next page)

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2 0

were made in Machinists. The “collective bargaining agreement 
and its enforcement [were] both perfectly lawful on the face of 
things” and the only way that this “otherwise legal” conduct 
could be “converged]” into “something illegal” was by litigating 
events outside the limitations period: i.e., whether the union en
joyed majority support at the time the contract was executed. Id. 
at 419. The Court held that this would constitute the very litiga
tion of stale events that Congress sought to prohibit, would 
“withdraw virtually all limitations protection from collective bar
gaining agreements attacked on the ground” they were illegally 
adopted, and would also do grave “disservice to stability of bar
gaining relationships.” Id. at 419, 425.
In so holding, the Court specifically rejected the “continuing 

violation” theory that is the basis for petitioners’ current claims. 
It reasoned that the “enforcement” of the agreement could be 
characterized as a “continuing violation” only by litigating the 
events surrounding its original adoption, contrary to the statute 
of limitations:

“The applicability of these principles cannot be avoided here 
by invoking the doctrine of continuing violation. . . . [T]he 
complaints in this case are ‘based upon’ the unlawful ex
ecution of the agreement, for its enforcement, though con
tinuing, is a continuing violation solely by reason of circum-

(Footnote continued from previous page)
period in and of themselves may constitute, as a substantive matter, 
unfair labor practices.” 362 U.S. at 416-17 (emphasis added). Accord, 
United Airlines v. Evans, 431 U.S. 553, 558 (1977) However, the Court 
sharply distinguished cases in which, as here, “conduct occurring within 
the limitations period can be charged to be an unfair labor practice only 
through reliance on an earlier” unlawful employment practice:

“There the use of the earlier unfair labor practice is not merely 
‘evidentiary,’ since it does not simply lay bare a putative current 
unfair labor practice. Rather, it serves to cloak with illegality that 
which was otherwise lawful. And where a complaint based upon 
that earlier event is time-barred, to permit the event itself to be so 
used in effect results in reviving a legally defunct unfair labor prac
tice.”

Machinists, 362 U.S. at 416-17 (emphasis added).

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21
stances existing only at the date of execution. To justify reli
ance on those circumstances on the ground that the mainte
nance in effect of the agreement is a continuing violation is to 
support a lifting of the limitations bar by a characterization 
which becomes apt only when that bar has already been lifted. 
Put another way, if the § 10(b) proviso is to be given effect, 
the enforcement, as distinguished from the execution, of 
such an agreement as this constitutes a suable unfair labor 
practice only for six months following the making of the 
agreement.”

Id. at 423, 424 (emphasis added). Thus, petitioners miss the point 
by repeatedly asserting that AT&T’s seniority system is intention
ally discriminatory and that the issue is whether petitioners can 
challenge the application of an “illegal” seniority system. See e.g., 
Pet. Br., pp. 21, 31, 65, 67. As Machinists holds, the Court cannot 
reach the issue of whether the system is illegal because the events 
necessary to establish its alleged illegality lie wholly outside the 
limitations period.
Petitioners’ tortured attempts to distinguish Machinists (Pet. 

Br., pp. 64-67) overlook that the Court rejected such “hyper- 
technical distinctions bearing no relationship to the [statutory] 
purpose” of achieving “repose” for stale events. 362 U.S. at 425. 
It held that the statute of limitations bars a claim whenever the 
events within the limitations period are lawful “in and of them
selves,” and the Court made it explicit that this rule applies to 
the very kinds of challenges to the operation of seniority systems 
that are at issue in this case.24 Accordingly, decisions under the

24The Court relied upon, and endorsed, the Board's earlier holding 
that the six-month statute of limitations bars a claim that a seniority 
system was discriminatorily manipulated to dilute the claimant’s senior
ity years earlier, notwithstanding the fact that there, as here, charges 
were filed within six months of a layoff See Machinists, 362 U.S. at 419- 
20 & n.12, citing Bowen Products Corp., 113 N.L.R.B. 731 (1955). The 
employee’s charge was held to be time-barred because there, as here, the 
seniority rules were lawful on their face and his layoff fully complied 
with the applicable seniority rules. 113 N.L.R.B. at 732-33. The Board 
reasoned that a holding that permitted a challenge to seniority rules 
(Footnote continued on next page)

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2 2

NLRA and Section 301 of the LMRA alike uniformly hold that 
the statute of limitations bars a challenge to an adverse employ
ment action such as a job downgrade or layoff, when, as here, it 
results from a seniority system that is facially lawful and that was 
lawfully administered within the limitations period.25
This Court’s decisions under Title VII adopt the same rationale 

that was the basis for Machinists: a claim is time-barred unless
(Footnote continued from previous page)
adopted outside the limitations period would render the six-month stat
ute of limitations “meaningless:”

“For under this theory, 10, 20, or more years after the original 
discrimination, the complainant, upon being otherwise properly 
denied a promotion, transfer, recall, vacation benefits, or other 
rights based on seniority, could maintain an action therefor by 
establishing the original discrimination and relating the subsequent 
action to it.”

Id. at 732.
25See e.g., Bailey v. Chesapeake <6 Ohio Railway Co., 852 F,2d 185 

(6th Cir. 1988) (challenge to legality of seniority-based severance pay 
agreement was time-barred because action was not filed within 180 days 
of execution of agreement); Clift v. International Union (UAW), 818 
F.2d 623 (7th Cir. 1987) (challenge to legality of agreement providing 
for a national seniority list was time-barred because action was not filed 
within 180 days of execution of agreement); Benson v. General Motors 
Corp., 716 F.2d 862 (11th Cir. 1983) (challenge to denial of preferential 
seniority rights begins to run when plaintiff's first became aware, or 
should have become aware, of diminished seniority rights, not when 
layoff based on seniority occurred); NLRB v. Auto Warehouses, Inc., 
571 F.2d 860 (5th Cir. 1978) (challenge to application of superseniority 
clause to union steward was time-barred because charge was not filed 
within 180 days of date that union and company first granted steward 
superseniority); Engelhardt v. Consolidated Rail Corp., 594 F. Supp. 
1157 (N.D.N.Y. 1984), affd, 756 F.2d 1368 (2d Cir. 1985) (claim chal
lenging plaintiffs’ placement on merged seniority rosters was time- 
barred because claim was not filed within 180 days after execution of 
merger agreements or adoption of merged seniority lists thereunder); 
Grimes v. Louisville and Nashville Railway Co., 583 F. Supp. 642 (S.D. 
Ind. 1984), affd mem., 767 F.2d 925 (7th Cir. 1985) (challenge to 
furlough is time-barred because claim was not filed within 180 days of 
date of prior reinstatement from discharge without seniority credit); see 
generally Bowen Products Corp., 113 N L R B. 731 (1955).

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23

the occurrences alleged within the limitations period, in and of 
themselves, constitute a substantive violation of Title VII.

Delaware State College v. Ricks, 449 U.S. 250 (1980), is one 
such case. This case involved a university professor who was told 
that he had been denied tenure and, as a result, was subsequently 
terminated the next year after a one year terminal contract had 
expired. Id. at 253 & n.2. His EEOC charges were timely with 
respect to his termination of employment, but not with respect to 
the denial of tenure. Id. at 253-54, 257 & n. 13. The Court ordered 
the dismissal of the suit. The Court reasoned that, although a 
challenge to plaintiff’s termination was timely filed, the termina
tion of his employment standing alone was neutral conduct, and 
no allegation had been made that it was discriminatory. Id. at 
257.26 The only conduct that was alleged to be discriminatory, in 
contrast, was the denial of tenure, and that had occurred outside 
the limitations period. Id. at 258.

As in Machinists, the Court held that the plaintiff could not 
rely on occurrences outside the limitations period (the allegedly 
discriminatory denial of tenure) to challenge conduct within the 
liability period that was otherwise lawful (the discharge). Ricks, 
449 U.S. at 258. This was so despite the fact that the discharge 
was the “inevitable consequence" of the denial of tenure. Id. at 
25 7-58.27 The statute of limitations runs from the “time of the 
discriminatory acts, n o t. . . the time at which the consequences of

26The Court reasoned:
“ In order for the limitations periods to commence with the date of 
discharge, Ricks would have had to allege and prove that the man
ner in which his employment was terminated differed dis- 
criminatorily from the manner in which the College terminated 
other professors who also had been denied tenure. But no sugges
tion has been made that Ricks was treated differently from other 
unsuccessful tenure aspirants. Rather, in accord with the College’s 
practice, Ricks was offered a 1-year ‘terminal’ contract, with explic
it notice that his employment would end upon its expiration.”

Ricks, 449 U.S. at 258.
27Contrary to EEOC’s revisionist reading (EEOC Br., pp. 16-17 & 

n.20), the basis for Ricks was not that the plaintiff really was challenging 
(Footnote continued on next page)

225



24

the acts bec[o]me most painful.” Id. at 258 (emphasis in original). 
See also Chardon v. Fernandez, 454 U.S. 6 (1981). Here, the 
discriminatory act that is alleged is the 1979 abrogation of peti
tioners’ plant-wide seniority rights; the 1982 downgrades (and 
other adverse effects that have been alleged) were simply conse
quences of the dilution of petitioners’ seniority that occurred in 
1979.

United Airlines, Inc. v. Evans, 431 U.S. 553 (1977), applied 
these same principles in a Title VII case challenging the operation 
of a seniority system. Contrary to petitioners’ statement (Pet. Br., 
p. 40), the plaintiff's contention in Evans was that “United’s se
niority system illegally discriminate[d] against her” by refusing to 
credit her with her prior service before she was discriminatorily 
discharged (and stripped of her accumulated seniority). 431 U.S. 
at 557. The Court rejected this claim because there, as here, 
the plaintiff had alleged no facts that called into question 
the lawfulness of the seniority system during the limitations 
period.28

(Footnote continued from  previous page)
his discharge and that it was the inevitable result of the earlier denial of 
tenure. Ricks rested on the ground that the discriminatory employment 
practice that was charged was the denial of tenure (not the subsequent 
termination). Ricks, 449 U.S. at 257-58. The statute of limitations would 
have barred the challenge to this act even if the plaintiff in Ricks had 
not subsequently been terminated, but had been allowed to continue to 
work as an untenured faculty member indefinitely.

Thus, courts of appeals uniformly hold that a refusal to promote an 
employee must be challenged within 180 days of that decision, even 
when the employee is not discharged and continues to work for the 
employer. Hill v. A T & T  Technologies. Inc., 731 F.2d 175, 179-80 (4th 
Cir. 1984); Woodward v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983); 
Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982); Reed 
v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir. 1980); Stewart 
v. CPC International, Inc., 679 F.2d 117, 121 (7th Cir. 1982); Jewett v. 
International Telephone and Telegraph Corp., 653 F.2d 89, 93 (3d Cir. 
1981); McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C. Cir. 1982).

28As the Court stated:
“ [Plaintiff] has not alleged that the system discriminates against for
mer female employees or that it treats former employees who were 

(Footnote continued on next page)

226



25

At the same time, the Court recognized that the seniority 
system did give “present elTect to a past act of discrimination” 
and was, in this sense, a “continuing violation." Id. at 558. 
However, it held that “mere continuity" is insufficient to establish 
a “present violation.” Id. The Court concluded that “United was 
entitled to treat that past act as lawful” because it had occurred 
outside the limitations period and had not been the subject of a 
timely EEOC charge. Id. The Court reasoned that an act outside 
the limitations period is “the legal equivalent of a discriminatory 
act which occurred before [Title VII] was passed” and cannot 
afTord a basis for challenging the present operation of an 
otherwise lawful seniority system. Id.

Like Machinists and Ricks, Evans is controlling here. The 
plaintiff in Evans could not avoid the statute of limitations by 
claiming that it was a “continuing violation” for United to refuse 
(during the limitations period) to credit her with the prior service 
she would have had if she had not been “discriminatorily” 
discharged. For the same reason, petitioners are barred from 
claiming that it was a “continuing violation” for AT&T to have 
refused to recognize the greater seniority rights that petitioners 
would have had during the limitations period if the plant-wide 
seniority system had not been “discriminatorily” abrogated in 
1979. Each is a consequence of acts outside the limitations period, 
and neither claim could be established without litigating stale 
events.

B. B a ze m o re  And Other Statute of Limitations Decisions Upon 
Which Petitioners And EEOC Rely Are Irrelevant To This 
Case.

Petitioners and EEOC defend their position by relying on a 
series of statute of limitations decisions that are wholly 
inapposite. In each, there was no staleness problem, and no^stat-

(Footnote continued from previous page)
discharged for a discriminatory reason any differently from former 
employees who resigned or were discharged for a nondiscriminato- 
ry reason. In short, the system is neutral in its operation.” Evans. 
431 U S. at 558.

227



2 6

ute of limitations bar, because the conduct alleged within the 
liability period was itself unlawful. The plaintiffs were not seeking 
to convert neutral and otherwise lawful conduct into a Title VII 
violation by relying on earlier unlawful conduct outside the limi
tations period. These decisions simply stand for the proposition 
that conduct that constitutes a violation of Title VII is actionable 
if it occurs within the limitations period and that it is no defense 
that the defendant also committed the same violations during an 
earlier period.

That was the Court’s holding in Bazemore v. Friday, 478 U.S. 
385 (1986). There, blacks were paid less than similarly situated 
whites for performing the same work within the limitations peri
od. Id. at 394. Although the practice had begun many years 
earlier, there was no staleness problem because “[e]ach week’s 
paycheck” constituted a new violation, and the conduct within 
the liability period was the violation. Id. at 395. It was thus 
irrelevant that the defendant had also engaged in this race dis
crimination in the past. Id. at 395-96 & n.6 . Here, in contrast, 
the downgrades that occurred within the liability period were on 
their face perfectly lawful and could only be challenged by liti
gating stale events.

Petitioners’ (Br., pp. 61-63) and EEOC's (Br., p. 12) reliance 
on Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982), 
and other like decisions, is misplaced for the same reason. There, 
as in Bazemore, the plaintiff alleged and proved an instance of 
unlawful racial steering that occurred within the limitations peri
od, and there was no possible staleness problem. Id. at 368, 370. 
As in Bazemore, the Court held that, although the plaintiff could 
also have sued earlier, the statute of limitations cannot bar a 
challenge to conduct within the liability period that itself violates 
the law. Id. at 380-81; accord, Hanover Shoe, Inc. v. United Shoe 
Machinery Corp., 392 U.S. 481, 502 n.15 (1968).

With the exception of two Age Discrimination In Employment 
Act (ADEA) cases that apparently embrace petitioners’ and

228



2 7

EEOC’s proposed rule,29 this unchallenged principle is the basis 
for each other court of appeals decision that petitioners cite. * 10 * The 
two ADEA decisions, moreover, are contrary to Machinists, 
Ricks and Evans; they conflict with the lower courts’ uniform 
holdings both under the NLRA and § 301 of the LMRA (see p. 
22 n.25, supra), and they conflict with lower courts’ holdings 
under Title VII that the operation of a neutral and otherwise 
lawful seniority system cannot be challenged on the basis of 
events outside the limitations period.11

For these reasons, there is no basis for petitioners (Br., pp. 58- 
59) and EEOC (Br., p. 11 n.13) to rely on those qualified state
ments of approval of the “continuing violation” doctrine con
tained in the legislative history of the 1972 amendments to Title 
VII. See 118 Cong. Rec. 7167 (1972). Respondents agree that the 
statute of limitations runs from the last occurrence of a 
violation, rather than from its first. The point is that, in this case,

29See Cook v. Pan American World Airways, Inc., 771 F.2d 635 (2d 
Cir. 1985); Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978).

10Johnson v. GeneraI Electric, 840 F.2d 132 (1st Cir. 1988); Stoller r. 
Marsh, 682 F.2d 971, 978-79 (D.C. Cir. 1982); EEOC v. Westinghou.se 
Electric Corp., 725 F.2d 211, 219 (3d Cir. 1983); Taylor v. Home Insur
ance Co., I l l  F.2d 849, 856 (4th Cir. 1985); Abrams v. Baylor College 
o f Medicine, 805 F.2d 528, 534 (5th Cir. 1986); Satz v. IT T  Financial 
Corp., 619 F.2d 738, 743-44 (8th Cir. 1980); Williams v. Owens-Illinois, 
Inc., 665 F.2d 918, 924-25 (9th Cir. 1<>82); Eurr v. AT& T Technologies, 
Inc., 824 F.2d 1537, 1543 (10th Cir. 1987); Sevako v. Anchor Motor 
Freight, Inc., 792 F.2d 570 (6th Cir. 1986); Lewis v. Local Union No. 
100, 750 F,2d 1368 (7th Cir. 1984); Patterson v. American Tobacco Co., 
634 F.2d 744 (4th Cir. 1980) (finding no statute of limitations bar in 
challenge to seniority system only because the Court held that adverse 
effects within the liability period constitute a Title VII violation), rcv'd. 
456 U.S. 63 (1982).

-"See, e.g. , Nuss v. Pan American World Airways, Inc., 634 F.2d 1234 
(9th Cir. 1980); Fowler v. Birmingham News Co., 608 F.2d 1055 (5th 
Cir. 1979); Martin v. Georgia-Pacific Corporation, 568 F.2d 58 (8th Cir. 
1977); Cates v. Trans World Airlines, Inc., 561 F.2d 1064 (2d Cir. 1977); 
De Graffenreid v. General Motors Assembly Division, 558 F.2d 480 (8th 
Cir. 1977); Zangrillo v. Fashion Institute o f  Technology, 601 F.Supp. 
1346 ( S O N Y ) ,  aff'd mem., 788 F.2d 2 (2d Cir. 1985).

229



2 8

the conduct occurring within the limitations period could not, 
standing alone, be a violation. The only alleged wrong occurred 
in 1979, and to prevail, petitioners must prove an unlawful em
ployment practice in 1979. That is barred by the statute of limi
tations.

C. On A Challenge To The Adoption Of A Seniority System, 
The Statute Of Limitations Runs From The Time Of Adop
tion.

Machinists, Ricks, and Evans foreclose petitioners’ and EEOC’s 
extreme claim that the operation of a facially neutral and lawfully 
maintained seniority system can be challenged anytime it is ap
plied—by alleging that it was illegally adopted for discriminatory 
reasons years or decades earlier. This Court need decide no more 
to dispose of this case. Once this extreme contention is rejected, 
each petitioner’s claim is time-barred, whether the 180 days be
gan to run when the system was adopted (as respondents con
tend) or when each petitioner entered the tester job classification 
(as the dictum in the lower courts’ opinions provide).

However, it is important to emphasize that the reasoning of 
this Court’s prior decisions establish that the pertinent date here 
is the adoption of a seniority system and that a holding that 
petitioners’ claims ran from this date does not foreclose any em
ployee from filing a timely challenge to the operation of an inten
tionally discriminatory system.

That petitioners’ claims ran from the date of the adoption of 
the seniority system follows from the fact that this is the only 
unlawful employment practice that they allege. If the Seventh 
Circuit were correct that persons who became testers in 1983 
could challenge the operation of the departmental system by 
claiming illegal adoption, it would create the very litigation of 
stale claims that the statute of limitations is designed to bar. They 
would be transforming a perfectly lawful system into “something 
illegal’’ by litigating the stale claim involving the parties’ motives 
in 1979.

Thus, the Seventh Circuit’s dictum cannot be reconciled with 
this Court’s decisions. The rule of Machinists barred any employ

230



2 9

ee from filing charges challenging the lawfulness of the union 
security clause more than six months after the clause was adopt
ed, even if the employee had been recently hired and filed charges 
within six months of the time that he or she first became “subject 
to” the clause. This is not at all anomalous because, in Machinists 
and as in this case, the ongoing operation of the clause is perfectly 
lawful. Indeed, the 1979 agreement epitomizes the seniority sys
tems that a union and an employer could adopt any time Tor good 
reasons, and the operation of such a system is valid, whether or 
not it has adverse effects on women or blacks. See pp. 15-16 8c 
n.19, supra. An employee who was hired by AT&T in 1983 would 
not be denied a remedy for a legal wrong, because the nondiscrim- 
inatory operation of such a gender-neutral seniority system is 
lawful. See p. 31 n.34, infra.

At the same time, the statute of limitations could never fore
close any employee (new or old) from obtaining relief from the 
operation of an intentionally discriminatory system in violation 
of Title VII rights. For example, if this had been a case in which 
it was alleged that the seniority system had been unlawful on its 
face or that it had been maintained and applied with a discrimi
natory intent during the limitations period, a challenge to the 
operation of the system unquestionably would have been timely. 
See, e.g.. American Tobacco Co. v. Patterson, 456 U.S. 63, 70 
(1982) (an “application” of a seniority system “is infirm" if “ac
companied by a discriminatory purpose” during the limitations 
period). See pp. 41-42, infra.

In all such cases, the limitations period will run from the last 
occurrence that gives rise to the claim, subject to ordinary tolling 
principles.32 In contrast, petitioners' claims are time-barred be
cause they did not, and could not, allege such present intentional 
discrimination.

32There is no basis for petitioners and EEOC to invoke the Court’s 
concerns that Title V II’s "limitations periods should not commence to 
run so soon that it becomes difficult for a layman to invoke the 
protection of the civil rights statutes." See, e.g., EEOC Br., p. 23, 
quoting Delaware State College v. Ricks, 449 U.S. at 262 n.16.
(Footnote continued on next page)

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30

II. The Principles That Bar Stale Claims Apply With Special 
Force To Challenges To The “Initial Adoption” Of A 
Seniority System.

Part I of this Brief established that conduct within the 180 day 
limitations period that is lawful on its face cannot be transformed 
into a violation of the law by litigating stale or remote events, 
whether the conduct is the discharge of a teacher, the enforce
ment of a union security clause, or the administration of a se
niority system. This principle requires dismissal of this case. 
However, petitioners and EEOC also appear to contend that Con
gress intended that challenges to the operation of seniority sys
tems under Title VII should be an exception both to this princi
ple, and to the policy of repose and stability of bargaining rela
tionships that it represents. Petitioners claim that the Court has 
so held “on seven occasions” in cases under Section 703(h), Pet. 
Br., pp. 32-44. There is no substance to these arguments.

The generally applicable statute of limitation principles apply 
with special force to challenges to facially lawful seniority sys
tems. Seniority systems have a special status under Title VII be
cause Congress recognized that these systems create “legitimate 
expectations” in innocent workers that should not lightly be dis
turbed and because the negotiation, or modification, of these 
systems through collective bargaining is critical to the national
(Footnote continued from previous page)

There no doubt will be cases in which the facts that are the basis for 
a cause of action are not publicized, or in which there are other 
legitimate grounds for delaying the commencement of the limitations 
period. However, the way to address these concerns is to toll the 
limitations periods during those periods under established principles. 
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). As 
Ricks itself held, the answer is not to eliminate that statute of limitations 
altogether, and allow stale claims to be litigated in perpetuity.

This is acutely so here, moreover, because petitioners urged that the 
statute of limitations should be tolled, but the District Court found, 
based on their own testimony, that they knew that the 1979 adoption of 
the tester system had an immediate adverse impact on them, but 
nevertheless “sat on their rights.” Cert. App. 26a. Petitioners have not 
challenged this finding of fact—and they cannot.

232



31

policy of promoting industrial peace. Nothing would be more 
destructive of these overriding national objectives than a rule in 
which each “application” of a facially neutral seniority system 
that has been lawfully maintained and administered for years, or 
decades, may be challenged by showing that its “initial adoption” 
was tainted by a discriminatory motive.1' And the Court's deci
sions under Section 703(h) foreclose any such rule.

A. The Rule Proposed By Petitioners And EEOC Would De
stroy Reasonable Expectations Created By Seniority Sys
tems And Otherwise Impair Collective Bargaining, Contrary 
To The Purposes Of Section 703(h).

1. In Title VII, Congress “afforded special treatment” to se
niority systems. Trans World Airlines, Inc. v. Hardison, 432 U.S. 
63, 81 (1977). Congress made it explicit that it did not intend to 
“destroy or water down the vested seniority rights of employees” 
under neutral seniority systems (Teamsters v. United States, 431 
U.S. 324, 352-53 (1977)), and that the routine and nondiscrimi- 
natory applications of a seniority system cannot be a violation of 
the Civil Rights Act, regardless of whether they have an adverse 
effect on women or minorities. * 14 Section 703(h) was added to Title

"N o  such problems arise when challenges are filed to seniority 
systems that are facially unlawful. As explained above, these challenges 
do not present stateness problems, and no legitimate reliance interests 
could be acquired under a system that, on its face, provides that blacks 
or women have less seniority than whites or men. For similar reasons, 
allegations that a seniority system was discriminatorily administered 
(e.g., that women with more tester seniority were downgraded ahead of 
men) do not threaten vital national policies when they are pursued in a 
timely fashion; the relief in such cases is to remedy the particular 
discrimination, not to dismantle the entire system.

14As the legislative history made explicit before the inclusion of Sec
tion 703(h) in Title VII, “ [i]t 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,” but is merely being affected by 
the nondiscriminatory application of seniority rules. 110 Cong. Rec. 
7207 (1964) (Justice Department Memorandum); accord, id. at 7217; 
see Teamsters v. United States, 431 U.S. at 350-52, 353 n.38; Franks v. 
Bowman Transportation Co., 424 U.S. 747, 760 it. 16 (1976).

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32

VII to codify this intent,35and this Court has strictly enforced this 
standard of liability.36

Congress gave seniority systems this special status because it 
recognized that seniority rights are critical to the national objec
tive of achieving industrial peace. “The collective bargaining 
process Mies at the core of our national labor policy’ ” {American 
Tobacco Co. v. Patterson, 456 U.S. 63, 76-77 (1982)), and “se
niority provisions are universally included in these contracts” 
{Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977)) 
because “secur[ing] the prized right of seniority in case of layofT 
and promotion” is a principal employee purpose for “entering 
into collective bargaining.” 37

As the Court has repeatedly held, “the rights and expectations 
surrounding seniority rights make up what is probably the most 
valuable capital asset that the worker ‘owns,’ worth even more 
than the current equity in his home.” Wygant v. Jackson Board 
o f Education, 476 U.S. 267, 283 (1986) (plurality opinion). Senior
ity’s function “is to determine who gets or who keeps an avail
able job.” Humphrey v. Moore, 375 U.S. 335, 346-47 (1964). “(S]e- 
niority affects the economic security of the individual employ

35It provides that “for an employer to apply different . . . terms, 
conditions, or privileges of employment pursuant to a bona fide seniority 
. . . system” is not unlawful “provided that such differences are not the 
result of an intention to discriminate.” 42 U.S.C. 2000e-2(h) (emphasis 
added). An “application [of a seniority system] is not infirm under 
Section 703(h) unless it [the application] is accompanied by a discrimi
natory purpose.” American Tobacco Co. v. Patterson, 456 U.S. 63, 70 
(1982) (emphasis added).

36Teamsters v. United States, 431 U.S. at 353 (rejecting EEOC’s ar
gument that a seniority system is not “bona fide" and loses § 703(h) 
protection if it perpetuates the effects of past race or sex discrimination 
in hiring or otherwise has adverse effects on women or minorities); 
Pullman-Standard v. Swint, 456 U.S. 273, 288-89 (1982) (rejecting 
EEOC’s argument that an “intent to discriminate” can be inferred from 
discriminatory effects within liability period alone).

37F. Elkouri & E. Elkouri, How Arbitration Works 590 (4th ed. 1985). 
See Franks v. Bowman Transportation Co.. 424 U.S. 747, 766-68 & n.28 
(1976).

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33

ee” more “than any other provision of the collective bargaining 
agreement” (Firefighters Local v. Stotts, 467 U.S. 561, 570 n.4 
(1984)) (citations omitted)) because seniority “is a right” which 
determines present benefits and “which a worker exercises in each 
job movement in the future.” Franks v. Bowman Transportation 
Co., 424 U.S. 747, 768 n.28 (1975). See also California Brewers 
Ass'n v. Bryant, 444 U.S. 598, 614 (1980) (Marshall, J., dissenting 
on other grounds).

2. Against this background, there is no substance to petitioners' 
and EEOC’s claims that respondents’ position would require em
ployees to bring “premature claims” before they are “harmed.” 
Pet. Br., pp. 48-53; EEOC Br., pp. 23-24. Seniority is a contrac
tual and property right that inevitably determines future job ben
efits in a myriad of ways, and is a worker’s most important capital 
asset. As this Court’s holdings establish, anything that modifies 
or dilutes vested seniority rights has an immediate impact on an 
employee.

Petitioners’ complaint proves this point. The 1979 agreement 
to modify the preexisting plant-wide seniority rights was subject 
to “heated debate" before the Union approved it precisely be
cause petitioners and others recognized that the agreement would 
dilute their existing rights and would inevitably affect them ad
versely. Whereas it was not certain in 1979 that petitioners would 
subsequently be downgraded in 1982 (EEOC Br., p. 17)3R, the 
1979 “change-over" to a departmental system depleted 
petitioners’ seniority, and petitioners’ complaint demonstrates it

3RContrary to EEOC’s claim (Br., p. 17), certainty of adverse impact 
is not the standard under Title VII’s statute of limitations. In Delaware 
State College v. Ricks, supra, the Court held that the statute of limita
tions began to run from the date in which Ricks was informed that he 
had been denied tenure, notwithstanding that a grievance challenging 
that decision was then pending and that it was not then certain that the 
denial of tenure (or Rick’s ultimate discharge) would occur. See 449 
U.S. at 261. The point was that the charge of discrimination was based 
solely on the June, 1974 decision denying tenure (and occurrences that 
led up to it) and that it was the event that would cause any future 
adverse consequences. See also Cliardon v. Fernandez, 454 U.S. 6, 8 
(1981).

235



34

wm certain that they would consequently be passed over for 
promotions; that they would be susceptible to downgrades in the 
event of future lack of work (which indisputably occurred in 
1982)19; and that they would be virtually compelled to enroll in 
training courses. See pp. 7-8, supra. Petitioners’ complaint alleged 
that these adverse consequences began in 1979, and the same 
complaint and same prayer for relief could have been filed in 
1979.

Thus, the terms of Title VII39 40, and this Court’s decisions make 
it explicit that a contractual modification of a seniority system is 
immediately actionable, whether or not the system has been “ap
plied” to deny the employee any employment benefit. American 
Tobacco Co. v. Patlerson, 456 U.S. 63 (1982), was such a case. It 
involved a change in a seniority system that, like the 1979 modi
fication at issue here, would have inevitably made it more difficult 
for plaintiffs to be promoted to better paying jobs, and the affected 
employees filed charges with EEOC before any promotions were 
denied (and apparently within days of the adoption of the new 
system). See id. at 6 6 . Both the Opinion for the Court and the 
dissenting opinion of Justice Brennan made it explicit that the 
case was not premature and that the adoption of a new seniority 
system is immediately actionable under Title VII, whether or not 
the system had been “applied” to deny any plaintiff a promotion.

39Here, the 1982 downgrades that precipitated EEOC charges were 
minor (see p. 9 n.12, supra), and the cumulative economic effects of the 
fact that petitioners were promoted less quickly over the preceding four 
years could well have been far greater than any consequences attributa
ble to the downgrades.

“̂ Section 703(a)(2) allows employees to bring an action as soon as an 
employer has “classified] his employees . . .  in any way which would 
. . . tend to deprive any individual of employment opportunities or oth
erwise adversely affect his status as an employee” by reason of race, 
color, religion, sex or national origin. 42 U.S.C. §§ 2000e-2(a)(l), (2) 
(emphasis added). Under these provisions, a plaintiff may challenge the 
initial adoption of a modified seniority system before it has been applied 
by alleging that the employer and the union acted with “an intention to 
discriminate because of race [or] sex” and that the system is thus invalid 
under Section 703(h).

236



35

See id. at 69-70 (Opinion for the Court)41 & 84-85, 86 n. 12 (Bren
nan, J., dissenting on other grounds).42

For the same reasons, decisions under Section 301 of the 
LMRA and the NLRA have uniformly held that a loss of senior
ity not only may be challenged within six months after it occurs, 
but also that the statute of limitations bars a future challenge to 
a layoff or downgrade that results solely from the earlier modifi
cation of seniority rights. See p. 21 n.24 & p. 22 n.25, supra.

3. It would violate the most fundamental national labor policies 
to adopt a different rule under Title VII and to permit plaintiffs

41 In arguing that American Tobacco adopted the opposite position, 
EEOC (Br., p. 21) relies on the Court’s statement that “ [tjhe adoption 
of a seniority system which has not been applied would not give rise to 
a cause of action." American Tobacco Co., 456 U.S. at 69. However, 
EEOC has quoted this statement out of context, and when the statement 
is viewed in the context in which it was made, it establishes that the 
initial adoption of a seniority system is immediately actionable.

In the language EEOC now quotes, the Court was rejecting the posi
tion that EEOC had urged in American Tobacco. EEOC there proposed 
a “distinction between application and adoption” of a seniority system 
in which the adoption of a system could be challenged by showing it had 
a discriminatory effect on women or blacks under the discriminatory 
impact test of Griggs v. Duke Power Co., 401 U.S. 424 (1971), but in 
which the subsequent application of the system could only be challenged 
by showing a discriminatory intent (e.g., intentionally discriminatory 
administration). What the Court said was that this distinction “on its 
face makes little sense [because] [t]he adoption of a seniority system 
which has not been applied would not give rise to a cause of action" 
under Griggs; a discriminatory impact obviously cannot be shown until 
a system is applied. 456 U.S. at 69.

Because the Court held that the adoption of a seniority system can 
only be challenged on the ground that the actual motive was discrimi
natory, it could scarcely be clearer that the Court recognized that the 
adoption of a seniority system for discriminatory reasons does give rise 
to a immediate cause of action.

42“[There is an] immediate impact resulting from the adoption of a 
particular seniority system in a collective bargaining agreement: The 
employees in the bargaining unit are bound by the agreement." Ameri
can Tobacco Co.. 456 U.S. at 84-85 (Brennan, J., dissenting) (emphasis 
in original).

237



36

to challenge the operation of a neutral and nondiscriminatorily 
administered seniority system by alleging that its initial adoption 
was tainted by discriminatory motives years or decades earlier, 
That would destroy the “legitimate expectations” that neutral 
seniority systems create and would profoundly inhibit and burden 
the collective bargaining process through which seniority systems 
are created and modified, contrary to the clear intent of Congress 
in Section 703(h).

For example, here the 1979 tester agreement operated for near
ly four years before any challenge was made to its legality, and 
under petitioners’ theory, it could have equally been challenged 
after it operated for four decades. During that time, petitioners’ 
co-workers changed their positions in reliance on the tester 
seniority system. Many were promoted to higher grade tester 
positions between 1979 and 1983. And others enrolled in, and 
passed, the five separate courses of instruction so that the employ
ees’ plant-wide seniority would govern future job movements 
within the tester universe. See p. 15 n.18, supra. If petitioners 
could now invalidate this neutral and otherwise lawful system on 
the ground that it was illegally adopted, the “legitimate expecta
tions” of these employees would be destroyed. That would occur, 
moreover, despite the fact that the system had operated as a neu
tral, rational, bona fide seniority system throughout the limita
tions period.43

The interference with substantial reliance interests would not 
be limited to employees. Here, AT&T agreed to provide (at its 
expense) educational benefits to its tester and non-tester employ
ees in exchange for the departmental seniority system. The inval
idation of the departmental seniority system would mean that 
AT&T would have been retroactively deprived of the quid pm quo 
for the substantial educational benefits that it has conferred on

43It is no answer to argue, as EEOC does (Br., p. 25), that a district 
court has equitable discretion in fashioning remedies. Adjustment in 
seniority rights that violate employee reliance interest would be inevita
ble if it could be established that the 1979 changeover from a plant-wide 
seniority system to a departmental system was illegal.

238



37

its tester and non-tester employees since the 1979 agreement. 
Indeed, the net effect of the rule that petitioners urge would be 
that the employees (like petitioners) would have reaped the bene
fits of the tester agreement but would be retroactively relieved of 
its burdens.

But petitioners’ and EEOC’s rule would have far more severe 
effects on the collective bargaining process itself: it would severely 
deter employers and unions from agreeing to any change in a 
seniority system as part of collective bargaining agreement, no 
matter how beneficial the agreement, as a whole, would be to the 
employees in the bargaining unit generally.

For example, agreements like the 1979 tester agreement could 
arise when a union approaches an employer to explore ways to 
open up the choicest “tester” jobs to employees in the lower 
grades and an employer agrees to do so by offering special educa
tional programs if seniority rights can also be modified to assure 
that senior supervisory tester positions would be filled by persons 
with sufficient skill and experience. This is precisely the kind of 
solution that collective bargaining is intended to achieve. Yet that 
process would be profoundly inhibited if the modification of se
niority rights could be challenged five, ten, or twenty years later 
by dredging up statements that (unidentifiable) employees made 
at a union meeting—as petitioners have here. The burden of liti
gating such stale claims and the threat of backpay and other 
disruptions would severely inhibit any efforts to change seniority 
rights as part of larger, beneficial arrangements, notwithstanding 
that this is integral to collective bargaining.

The Court has repeatedly held that Section 703(h), and the 
provisions of Title VII as a whole, must be construed to avoid 
such interference with national labor policy.44 American Tobacco 
Co. v. Patterson, 456 U.S. 63 (1982), is especially pertinent. There, 
the issue was whether an employee could challenge the initial

u Ford Motor Co. v. EEOC, 458 U.S. 219, 239-40 (1982) (refusing to 
require offer of retroactive seniority to toll backpay liability because of 
frustration of innocent co-workers’ expectations); Irons World Airlines, 
Inc. v. Hardison, 432 U.S. 63, 81 83 (1977) (refusing to require excep
tions to seniority system to accommodate religious requirements).

239



38

adoption of a seniority system by showing that it would have a 
disproportionate impact and requiring the employer and union to 
show a valid business purpose under the rule of Griggs v. Duke 
Power Co., 401 U.S. 424 (1971). Justices Brennan, Blackmun, and 
Marshall would have permitted such claims but only i f  the chal
lenge to the system’s adoption was filed within the 180-day limi
tations period; otherwise, they emphasized that plaintiffs could 
challenge neutral seniority systems indefinitely and upset the “le
gitimate expectations” of co-workers. American Tobacco Co., 456 
U.S. at 81, 86  (Brennan, J., dissenting).45

The Opinion for the Court went even further in assuring that 
challenges to the adoption of a seniority system could not disrupt 
the fundamental goals of the Act. While indicating that chal
lenges to the system’s adoption must be brought within 180 days 
(see pp. 39-40, infra), the Court held that requiring that the adop
tion of a seniority provision be justified under Griggs would un
duly burden and inhibit collective bargaining and “discourage 
unions and employers from modifying . . . seniority systems,” 
contrary to the purpose of Section 703(h). 456 U.S. at 70-71. 
Because Congress intended that the subsequent application of a 
seniority system cannot be challenged unless “(the applicationj is 
accompanied by proof of a discriminatory purpose,” the Court 
held that challenges to the system's adoption, too, required a 
showing of discriminatory purpose. Id. at 69-70.

These principles are controlling here. The only way to assure 
that modifications of seniority systems are not “discouraged,” 
and “legitimate expectations” of innocent employees are not de
stroyed, is to enforce Section 706(e) and Section 703(h) in accord
ance with their terms and the settled principles o r Machinists, 
Ricks, and Evans. Challenges to the “initial adoption” of neutral

45Justice Brennan stated that it is only “ [a] timely [180-day] challenge 
to the adoption of a seniority plan” that would prevent such “legitimate 
expectations” from arising because “ the notice provided by the filing of 
charges serves to reduce the likelihood of employees acquiring unjusti
fied expectations concerning seniority rights during any ensuing investi
gation and litigation of the charges." 456 U.S. at 81 & n.4 (B rennan,.?., 
dissenting) (emphasis in original); see also id. at 83 n.8.

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39

and nondiscriminatorily administered seniority systems must be 
brought within 180 days. Thereafter, routine nondiscriminatory 
application and maintenance of the system may not be chal
lenged, regardless of its effects.

B. The Court’s Section 703(h) Decisions Have Never Adopted 
The Rule Petitioners Now Propose.

Finally, contrary to petitioners’ claim, the Court has never held 
that a Title VII claimant can challenge a neutral seniority system 
that lawfully operated during the limitations period by showing 
that it was adopted with a discriminatory motive years or decades 
earlier—and that the statute of limitations never runs on such 
challenges to the initial adoption of a system. Pet. Br., pp. 31-44. 
As shown below, five of the seven seniority decisions petitioners 
cite are irrelevant because the statute of limitations was not 
raised, presumably because (as the facts suggest) there was no 
conceivable limitations bar. A sixth case—United Airlines, Inc. v. 
Evans—forecloses this claim. See pp. 24-25, supra. And in the 
final case—American Tobacco Co. v. Patterson—the statute of 
limitations had been raised in the court of appeals, and eight of 
the nine members of this Court indicated that the statute of limi
tations bars untimely challenges to the initial adoption of neutral 
seniority systems.

In American Tobacco, the Court of Appeals for the Fourth 
Circuit had rejected a statute of limitations defense because, un
der its (erroneous) holding that the adoption of a seniority system 
could be challenged by showing a disparate impact on blacks 
within the limitations period, there was no staleness problem. 
Patterson v. American Tobacco Co., 634 F.2d 744, 749 (4th Cir. 
1980). Although the statute of limitations issue was not directly 
raised when this Court reviewed the Fourth Circuit’s decision, 
this Court then recognized the applicability of the 180-day limi
tations period to a challenge to the adoption of a seniority system 
in reversing the Fourth Circuit’s erroneous interpretation of Sec
tion 703(h). The Court stated that, taken together, the interpreta
tion of Section 703(h) in Teamsters and the holding in Evans that

241



4 0

acts occurring outside the 180-day statute of limitations period 
are “lawful,” effectively immunize any neutral seniority system 
from challenges that are not timely fded:

“In Teamsters v. United States, supra, we held that § 703(h) 
exempts from Title VII the disparate impact of a bona fide 
seniority system even if the differential treatment is the result 
of pre-Act racially discriminatory employment practices. 
Similarly, by holding that ‘[a] discriminatory act which is 
not made the basis for a timely charge is the legal equivalent 
of a discriminatory act which occurred before the statute was 
passed,’ United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 
(1977), the Court interpreted 703(h) to immunize seniority 
systems which perpetuate post-Act discrimination. Thus tak
en together, Teamsters and Evans stand for the proposition 
stated in Teamsters that ‘[sjection 703(h) on its face immu
nizes all bona fide seniority systems, and does not distinguish 
between the perpetuation of pre- and post-Act’ discrimina
tory impact.”

American Tobacco Co. v. Patterson, 456 U.S. at 75-76 (emphasis 
in original).46

Although Justice Brennan (joined by Justices Marshall and 
Blackmun) dissented, he stated that Title VII precludes a claim
ant from challenging the adoption of a bona fide seniority system 
unless a timely charge is filed, and would have remanded for a 
determination of when the system had been adopted. Id. at 86 
n.12 (Brennan, J., dissenting); see p. 38 & n.45, supra. Thus, eight 
of the nine members of the Court recognized the applicability of

46EEOC argues (Br., p. 18 n.23) that American Tobacco could not 
establish that there is a statute of limitations bar in this case. EEOC 
contends that the Court’s holding applied only to bona fide  seniority 
systems, and EEOC claims that AT&T's departmental seniority system 
would not be bona fide  if, as petitioners allege, it was adopted with a 
discriminatory intent in 1979. This is simply incorrect.

Section 703(h) “definfes] what is and what is not an illegal discrimi
natory practice.” Franks v. Bowman Transportation Co., 424 U.S. 747, 
761 (1976); American Tobacco Co. v. Patterson. 456 U.S. 63, 69 
(Footnote continued on next page)

242



41

the limitations bar to a claim that a seniority system was illegally 
adopted.47

Petitioners’ remaining citations are wholly inapposite because 
no limitations issue was raised at any stage of the proceedings. In 
several of the cases, it is clear from the face of the Court’s opinion 
that challenges were timely under the standard respondents urge. 
In Nashville Gas Co. v. Salty, 434 U.S. 136 (1977), there was no 
possible staleness problem because the system, on its face, was not * VII.

(Footnote continued from previous page)
(1982). Even if neutral seniority systems adopted with discriminatory 
intent were not “bona fide,” no Title VII claim can be brought unless 
the facts showing the lack of bona tides occurred during the limitations 
period.

Thus, in applying Section 703(h), the question must be whether the 
conduct that gave rise to the EEOC charge during the liability period 
itself resulted from an intention to discriminate during that same period, 
and was not merely the nondiscriminatory application of neutral crite
ria. Congress made it explicit that the latter is not a violation of Title
VII. See p. 31 n.34, supra. Whatever reasons may have entered into the 
initial adoption of a seniority system, a neutral system that is maintained 
and applied free of unlawful discrimination during the limitations peri
od is, under Section 703(h), not a violation of Title VII. The initial 
adoption of the system, like the alleged unlawful conduct in Machinists, 
Ricks, and Evans, does not convert subsequent nondiscriminatory main
tenance of the system into an independent violation of Title VII.

Further, EEOC is incorrect that a neutral and otherwise lawful 
seniority system is not bona fide if it was adopted with a discriminatory 
intent. Under the terms of Section 703(h), the bona tides of a seniority 
system and the intent with which it is adopted, or applied and main
tained are separate requirements. The Court has thus held that the 
operation of a seniority system can be challenged by showing either that 
“the seniority system . . .  is not ‘bona fide’ or that the differences in 
employment conditions . . . are ‘the result of an intention to discriminate 
because of race.’ ” California Brewers Assn. v. Bryant, 444 U.S. 598, 610- 
11 (1980) (emphasis added).

47Justice Stevens stated that there should be no time limitations peri
od applicable to claims that neutral seniority systems were illegally 
adopted after Title VII took effect. See 456 U.S. at 90 n.7 (Stevens, J., 
dissenting).

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4 2

gender neutral: the seniority system applied during the limitations 
period made the sex-based distinction between pregnancy and 
other disabilities that the Court held to be unlawful. Similarly, to 
the extent that the seniority system was at issue in Trans World 
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977),48 the challenge was 
timely because the claim was either that the system was unlawful 
on its face (because it could operate to force persons either to 
work on Saturdays against their religion or to face discharge) or 
that the system had been unlawfully applied during the limita
tions period to produce that result. Similarly, in California Brew
ers Assn. v. Bryant, 444 U.S. 598 (1980), the plaintiffs claimed 
that the 4 5 -week rule had been discriminatorily applied within 
the limitations period (id. at 601-02 & n.4) and, further, that it 
was so susceptible of discriminatory application that it was inval
id on its face. Id. at 602 n.4, 604 n.8 .

In the remaining cases, no statute of limitations issue was 
raised, or was relevant. In Teamsters v. United States, 431 U.S. 
324 (1977), the employer raised no statute of limitations issue 
because there could never have been a limitations bar under the 
sole theory that EEOC urged and that the lower courts accepted: 
that a departmental seniority system is unlawful if it operates to 
perpetuate the effects of pre-Act discrimination (as the depart
mental system in that case unquestionably did). See id. 
at 349-50, 353. Conversely, once that theory was rejected, there 
was no case because the plaintiffs conceded both that the seniority

48The issue in Hardison was whether it was a Title VII violation for 
an employer to discharge a person who refused to work on Saturdays 
because it was against his religion. The seniority system was discussed 
in the case because it was one of several ways in which the employer 
could have theoretically accommodated its business interests and its 
employee’s religious interest without forcing him to work on Saturdays. 
See Hardison, 432 U.S. at 77-83. Petitioners' reliance (Br., p. 44) on 
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) is misplaced 
for the same reason. The challenge in Franks was not to a seniority 
system at all, but to a “racially discriminatory hiring system.” 424 U.S. 
at 758. The Court’s discussion of seniority systems pertained solely to 
the availability of retroactive seniority as a remedy for such violations. 
id. at 752.

244



43

system was bona fide and that the differences in employment 
conditions were not the result of an intent to discriminate on the 
basis of race. Id. at 355-56.4'’

Similarly, no statute of limitations issue was raised in Pullman- 
Standard v. Swinl. 456 U.S. 273 (1982). Presumably, that is be
cause the claim that was made in that case was that the seniority 
system had been established, reestablished, administered, and 
maintained with a discriminatory intent over a 36-year period 
beginning in 1941 and continuing into the 180-day limitations 
period—and beyond. See id. at 283.

Because the statute of limitations is not jurisdictional (see Zipes 
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)), nothing 
this Court said in Teamsters or Swinl can constitute even an 
implicit holding on the application of the statute of limitations. 
But the analysis of each forecloses petitioners’ claims. Teamsters 
and Swint referred to the fact that a number of factors are rele
vant in assessing whether a seniority system is lawful under Sec
tion 703(h), including whether the system is applied equally to all 
races and sexes, whether it is rational and in accord with industry 
practice and NLRB precedents, and whether the system had its 
“genesis in racial discrimination” and has been “negotiated and 
maintained free from any illegal purpose. " * 50 These factors are all 
germane to assess the current operation of the system within the 
liability period, and the “genesis” of the system can be “relevant 
background evidence” when there are allegations of discrimi- 
natorily-motivated conduct within the limitations period, as there 
are not here. See Machinists, 362 U.S. at 416; Evans, 431 U.S. at 
558; p. 19 n.23, supra.

4qMoreover, as this Court has emphasized, the date of adoption of 
that system at issue in Teamsters was unclear (see American Tobacco, 
supra. 456 U.S. at 76 n. 16), and if there had been evidence that the 
system was adopted or maintained for discriminatory reasons, that evi
dence could well have existed during the limitations period.

5 0Teamsters. 431 U.S. at 355-56; cf. Swint. 456 U.S. at 279-81 (dis
cussing criteria applied by lower court in assessing the “totality of the 
circumstances in the development and maintenance of the system").

245



4 4

In contrast, Machinists, Ricks, and Evans hold that a neutral 
system that has been lawfully and nondiscriminatorily adminis
tered and maintained for years cannot be challenged by alleging 
that it was initially adopted with an illicit motive. For the reasons 
explained above, that would violate Section 706(e) and contra
vene the policies of Section 703(h).

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

Michael H. Gottesman 
Robert M. Weinberg 

Bredhoff & Kaiser 
1000 Connecticut Ave., N.W, 
Washington, D.C. 20036 
(202) 833-9340

Joel A. D’Alba 
Stephen J. Feinberg* 

Asher, Pavalon, Gittler 
& Greenfield, Ltd.

2 North LaSalle Street 
Chicago, Illinois 60602 
(312) 263-1500

Attorneys for Local 1942

*Counsel o f Record

Respectfully submitted,

Rex E. Lee*
David W. Carpenter 
Patrick S. Casey 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000 

Gerald D. Skoning 
Charles C. Jackson 

Seyfarth, Shaw, Fair- 
weather & Geraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

O f Counsel:
Joseph Ramirez 
Robert W Benson 
Juanita G. D e Roos

Attorneys for AT&T

January 26, 1989

246



APPENDIX
STATISTICS OF BUREAU OF 

NATIONAL AFFAIRS
ON DEPARTMENTAL SENIORITY SYSTEMS



Contracts With Departmental Seniority

Total Departmental
Industry Contracts Seniority Percentage

All Industries 359 239 66 %

Apparel 9 1 11
Chemicals 16 8 50
Communications 10 4 40
Construction 2 0 0
Electrical Machinery 19 8 42
Fabricated Metals 18 3 17
Foods 21 15 71
Furniture 6 5 83
Insurance & Finance 5 2 40
Feather 4 3 75
Lumber 7 5 71
Machinery 25 19 76
Maritime 4 2 50
Mining 12 5 42
Paper 14 14 100
Petroleum 7 6 85
Primary Metals 25 19 76
Printing 5 4 80
Retail 26 15 57
Rubber 6 3 50
Services 26 22 84
Stone, Clay & Glass 13 11 84
Textiles 10 10 100
Transportation Equipment 34 30 88
Transportation 25 18 72
Utilities 10 7 70

Note: Caulion should he exercised in ihe use of a sample analysis of this type because:

(1) All frequency figures apply only to the contract sample studied. To the extent that 
the sample is broadly representative, those figures approximate general practice. 2

(2) The presence of certain provisions in some contracts and their absence in others m; 
be due to such different factors as varying industry conditions or merely the special emphasis 
given by company or union negotiators in the industries concerned.

Copyfight <?> 1989 by The Bureau ol National Affairs, Inc



No. 87-1428

In The

Supreme Court of tt)c Um'teb states;
October Term, 1988

PATRICIA A. LORANCE, JANICE M. KING, 
and CAROL S. BUESCHEN,

Petitioners,
v.

AT&T TECHNOLOGIES, INC., and LOCAL 1942, 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, AFL-CIO,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

PATRICK 0. PATTERSON 
NAACP Legal Defense and 

Educational Fund, Inc. 
634 South Spring Street 
Suite 800
Los Angeles, CA 90014

BRIDGET ARIMOND 
14 West Erie Street 
Chicago, Illinois 60610

* Counsel of Record

JULIUS LeVONNE CHAMBERS 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street
Sixteenth Floor
New York, New York 10013

BARRY GOLDSTEIN*
PAUL HOLTZMAN 

NAACP Legal Defense and 
Educational Fund, Inc.

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners 
Patricia A. Lorance, et at.

249



TABLE OF CONTENTS

Table of Authorities . . . . . .  iii

ARGUMENT 1
I. Contrary to Respondents' 

Mischaracterization of 
Petitioners’ Argument,
Petitioners Contend that
the Current Operation of
the "Tester" Seniority
System Is Unlawful . . . .  2

II. Respondents' Reliance
Upon Inappropriate and 
Inaccurate Factual Arguments 
Underscores the Error in 
their Position that the 
Petitioners Filed Untimely 
Discrimination Charges . . 6

III. Respondents Ask the Court 
to Adopt an Extreme Posi
tion That Was Rejected by 
both Courts Below and that
No Court Has Adopted . . .  21 IV.

IV. International Association 
of Machinists v. NLRB Does 
Not Support Respondents'
Position . ...............  25

Page

i

250



Page
V. The Court's Prior Decisions 

Provide that a Seniority 
System Designed to Discrimi
nate May Be Challenged by 
an Intended Victim when She 
Is Harmed by the Operation
of the System............  35

CONCLUSION..................... 44
Appendix A.

Exhibit 11 to the Deposition 
of Petitioner Bueschen, 
R.68A, exhibit 11.

Appendix B.
Correspondence Regarding 
the Use by Respondents 
in their Brief of 
Outside-the-Record Facts 
and a Privatedly Com
missioned Research 
Project ..................

ii

251



TABLE OF AUTHORITIES
Cases Page
Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) . . . . . .  35
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) . . . . . .  23, 34
American Tobacco Co. v. Patterson,

456 U.S. 63 ( 1 9 8 2 ) ........ .. 39-41
Bazemore v. Friday, 478 U.S. 385

(1986).......... .............. 36, 38
44

Bishop v. Wood, 426 U.S. 341
(1976) . ..................... .6

California Brewers Ass'n v.
Bryant, 444 U.S. 598 (1980) . . 41

Columbus Board of Education v.
Penick, 443 U.S. 449 (1979) . . 9

Dayton Board of Education v.
Brinkman, 443 U.S. 526 (1979). . 9

Delaware State College v. Ricks.,
449 U.S. 250 (1980) . . . . . .  43-44

DelCostello v. Teamsters,
462 U.S. 151 (1983) .......... 29-30

EEOC v. Home Insurance Co., 553
F. Supp. 704 (S.D.N.Y. 1982) . . 6

iii

252



EEOC v. Westinghouse Electric 
Corp., 725 F .2d 211 (3d Cir.
1983), cert, denied, 469 U.S.
8 20 (1984) . . . ...............  22

Ford Motor Co. v. EEOC, 458 U.S.
219 (1982)..................... 33

Heiar v. Crawford Country, 746 
F .2d 1190 (7th Cir. 1984), 
cert. denied , 472 U.S. 1027
(1985)    22-23

International Association of 
Machinists v. NLRB, 362 U.S.
411 (1960) ..................  25-29

Cases (Continued) Page

Johnson v. General Electric,
840 F .2d 132 (1st Cir. 1988) . . 22

Mobile v. Bolden, 446 U.S. 55
(1980).........................  37

Newman v. Piggie Park Enterprises,
390 U.S. 400 ( 1968) ..........  34

NLRB v. International Brotherhood 
of Electrical Workers, 827 F.2d 
530 (9th Cir. 1987) ..........  22

Owens v. Okure, 57 U.S.L.W. 4065
(Jan. 10, 1989) ..............  32

Personnel Administrator of 
Mass. v. Feeney, 442 U.S.
256 (1979).....................9

Potlatch Forests, Inc., 87 NLRB
1193 ( 1949) ..................  27-29

iv
253



Cases (Continued) P a g e

Reed v. United Transportation 
Union, 57 U.S.L.W. 4088 
(Jan. 11, 1989) ........ 23 , 30 

32

Teamsters v. United States, 
431 U.S. 324 (1977) . . 9 , 16 ,

35
United Air Lines, Inc. v. Evans,

431 U.S. 553 (1977) ..........  37-38,
43-44

United Parcel Service v.
Mitchell, 451 U.S. 56 (1981) . . 29-30

United States v. Bd. of Schools 
Commissioners, 573 F.2d 400 
(7th Cir.), cert. denied,
439 U.S. 824 ( 1978) ..........  42

Village of Arlington Heights v. 
Metropolitan Housing Development 
Corp., 429 U.S. 252 (1977) . . .  9, 37

Washington v. Davis, 426 U.S. 229 
(1976) ..........  . . . . . . .  9

Statutes
Labor-Management Reporting and 

Disclosure Act, §101(a)(2),
29 U.S.C. § 411(a)(2) . . . . .  30-32

Title VII of the Civil Rights 
Act of 1964, 42 U.S.C.
§§ 2000e et seq.................passim

v

254



Equal Employment Opportunity Act 
of 1972, P.L. 92-261,
86 Stat. 1 0 3 .................. 33

Statutes (continued) Page

National Labor Relations Act,
§10(b), 29 U.S.C. § 160(b) . . . passim

Legislative Authorities
118 Cong. Rec. 7167 ( 1972) . . . .  33
Other Authorities
G. Bloom & H. Northrup, Economics 

of Labor Relations 237 (1981). . 16
F. Harbison, The Seniority

Principle in Union-Management 
Relations 33 (1939) ..........  16

Jackson and Matheson, The
Continuing Violation Theory 
and the Concept of Jurisdiction 
in Title VII Suits, 67 Geo.
L.J. 811 (1979) .............. 6

R. Stern, E. Gressman, S. Shapiro, 
Supreme Court Practice (Sixth 
ed. 1986) at 564 .............. 7

Union Contract Clauses (CCH)
11 51,428 ( 1954 ) .......... .. . 17

vi
255



No. 87-1428
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1988

PATRICIA A. LORANCE, JANICE M. KING, 
and CAROL S. BUESCHEN,

Pet i tloners,
v .

AT&T TECHNOLOGIES, INC., and LOCAL 1942, 
INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, AFL-CIO,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

ARGUMENT
Petitioners submit this brief in 

reply to respondents’ brief. With respect 
to most of respondents' arguments, we rest 
on our principal brief and on the brief 
for the United States and the Equal 
Employment Opportunity Commission as

256



2

amici curiae. Our reply brief addressee
only the following five points.
I. C O N T R A R Y  TO R E S P O N D E N T S '  

MISCHARACTERIZATION OF PETITIONERS’ 
ARGUMENT, PETITIONERS CONTEND THAT 
THE C U R R E N T  OPERATION OF THE 
"TESTER" S E N I O R I T Y  SYSTEM IS 
UNLAWFUL.
The Company and Union consistently 

mischaracterize the arguments of the 
female workers. Repeatedly, respondents 
assert that the "sole" basis for 
petitioners' claims is that the seniority 
"system was illegally 'adopted' because 
AT&T and the Union allegedly acted with a 
discriminatory motive" when they changed 
the plant seniority system to the "tester 
concept." Resp. Br. at 12; see also, id. 
at 2, 6, 10, and 17 .

To the contrary, petitioners rely 
upon the operation and effect of the 
discriminatory seniority system. The 
petitioners alleged in their Complaint 
that AT&T a.id the IBEW conspired to change

257



3
the seniority system "in order to protect 
incumbent male testers and to discourage 
w o m e n  from p r o m o t i n g  into the 
tradi t ionally-male tester jobs," and that 
" [t ]h e purpose and effect of this 
manipulation of seniority rules" were to 
advantage male employees over female 
employees. Joint App. 20-22 (Emphasis

added) .
In accordance with these allegations, 

the p e t i t ioners have argued that 
"[wjhenever the seniority system operated 
as intended by AT&T and Local 1942 to deny 
job opportunities to petitioners because 
of their gender, AT&T and Local 1942" 
commit an unlawful employment practice. 
Brief at 21. (Emphasis added). When the 
Company and Union implement the conspiracy 
to discriminate against women, they 
violate Title VII. Since the petitioners 
filed charges of discrimination, within the

258



4
requisite filing period, Brief at 33-16, 
from the date that the Company and Union 
implemented the discriminatory seniority 

system to bump petitioners to lower-paying 
jobs while males with less seniority 
remained in the higher-paying jobs,1 the 
petitioners have filed timely charges.

The issue in this case is whether the 
district court, on a motion for summary 
judgment, improperly dismissed this action 
on the ground that the plaintiffs' EEOC 1 * * * * 6

1 When petitioner Lorance was 
downgraded on November 15, 1982, from job
grade tester 38 to job grade tester 37,
there were s ixty-seven grade 38 testers 
with less plant seniority than Lorance. 
When petitioner King was downgraded on 
August 2 3, 1982, from a job grade 37
tester to a job grade tester 36, there 
were thirty-two grade 37 testers with less 
plant seniority than King. When 
petitioner Bueschen was downgraded on 
November 15, 1982, from a job grade 35
tester to a job grade 33 position there 
were one hundred four job grade 36 testers 
with less plant seniority than Bueschen.
6 8 A at exhibit 11 (Exhibit 11 to the 
Deposition of Bueschen, attached as 
Appendix A ).

259



5
charges were not timely. In this 
procedural posture, the Court must accept 
the petitioners' "version of the f a c t s , "  

including the allegations i n  t h e  

complaint.2 Bishop v . W o o d , 4 26 U . S .
341, 347 (1976). Accordingly,
respondents' repeated references to a 
"neutral," "nondiscriminatory" seniority 
system, Brief at 14-17, "adopted ... for 
good reasons," and protected from 
liability by § 703(h), id. at 16, see 
also , id at 31-39, are not pertinent to 
the issue before the Court.̂  2

2 The petitioners never took 
discovery in this case because "the Court 
accepted the parties' recommendation that 
discovery should be held in abeyance 
pending resolution of the Company's ... 
Motion for Summary Judgment." Joint 
Status Report (Feb. 7, 1986), R. 46.

Respondents concede that no 
legitimate reliance interests are acquired 
under a seniority system that explicitly 
provides less seniority for the work of 
women that it provides for that of men. 
Resp. Br. at 31 n.33. Yet they cite no 
authority for their contention that the

260



6

II. R E S P O N D E N T S '  R E L I A N C E  U P O N  
INAPPROPRIATE AND INACCURATE FACTUAL 
ARGUMENTS UNDERSCORES THE ERROR IN 
THEIR POSITION THAT THE PETITIONERS 
FILED UNTIMELY DISCRIMINATION 
CHARGES.
R e s p o n d e n t s  r e p e a t e d l y  and 

Inappropriately (in light of the Court's 
review of a grant of summary judgment, 
see, section I, supra) use disputed record

rule should be different for a system 
which suffers from the same intention to 
discriminate but chooses to achieve that 
goal through the operation of a policy 
which is designed to disadvantage women 
without establishing explicit gender 
classifications. Concern for the 
"substantial reliance interests" of 
employees and the lost investment of the 
company in the "guij3 pro quo" for the 
challenged agreement, it is suggested, 
override the statutory goal of Title VII. 
Id. at 36. This Court certainly must 
reject a position which would permit a 
timely challenge to an intentionally 
discriminatory policy to be thwarted by 
the interests of the parties to the 
unlawful agreement. See e . q . , EEOC v . 
Home Insurance Co., 553 F. Supp. 704, 713
(S.D.N.Y. 1982); Jackson and Matheson, The
Continuing Violation Theory_and__the
Concept of Jurisdiction in_Title _VII
Suits ,' 67 Geo. L . J . 811, 851 (1979).

261



7
facts in support of their arguments.4 A 
brief review of the record shows that 
respondents mischaracterized the evidence 
and that, properly viewed, the record

In an effort to support their 
position, respondents commissioned a 
private research project from BNA Plus, a 
"custom research" division of The Bureau 
of National Affairs, Inc. The project was 
done pursuant to "specifications" set 
forth by AT&T Technologies. The 
respondents attached a summary of this 
project as an Appendix to their Brief and 
referred to the facts produced by this 
project. Brief at 14-15, n.15.

The Court "has consistently ... 
condemned" the practice by counsel of 
" a t t a c h i n g  to a brief [as have 
respondents] some additional or different 
evidence that is not part of the certified 
record." R. Stern, E. Gressman, S. 
Shapiro, Supreme Court Practice (6th ed. 
1986) at 564. "[A]ppellate courts have 
dealt promptly and severely with such 
infractions [by, for example] granting a 
motion to strike the 'offending matter.'" 
Id. at 564-65.

Petitioners requested respondents to 
remove the references to the outside-the- 
record private study; the respondents 
refused. Appendix B. The petitioners 
have lodged with the Clerk of the Court 
the underlying data for the project which 
the respondents produced with Mr. 
Carpenter's letter dated March 3, 1989.

262



8

underscores the error in respondents' 
arguments.

1. Respondents state that the 

p e t i t i o n e r s '  claim that the 1979 
changeover from plant to tester seniority 
"rests on statements that a few male 
employees allegedly made at the three 
union meetings in 1 9 7 9 , "  that "no facts 
are a l l e g e d "  that the statements 
"represented the views of the union 
leadership," and that it is not "alleged 
that AT&T knew what had been said at the 
union meetings" or that anyone from AT&T 
negotiated the new seniority system for 
other than "legitimate business reasons." 
Resp. Br. at 6 - 7 ;  s e e  also, Brief at 1 4 -  

15 (emphasis added).
First, the harsh impact of the 

new dual seniority system on female 
workers provides objective circumstantial

263



9
evidence of discriminatory intent.5 By 
depriving women of the use of seniority 
accumulated in the "traditionally" female 
j o b s  w h e n  t h e y  m o v e d  to the 
"traditionally" male tester jobs, the 1979 
seniority system has an obvious adverse 
impact on the job opportunities of female 
workers. See, n.l, supra, and R68B at 59, 
147 and 187.

"Determining whether invidious 
discriminatory purpose was a motivating 
factor demands a sensitive inquiry into 
such circumstantial and direct evidence of 
intent as may be available." Village of 
Arlington Heights v. Metropolitan Housing 
Development Corp. , 429 U.S. 252, 266
(1977); see also, Personnel Administrator 
of_ Mass, v . Feeney, 442 U.S. 256, 279 n.
24 (1979). Such objective evidence
includes the fact "that the law [or 
practice] bears more heavily on one race 
than another." Washington v. Davis, 426 
U.S. 229, 242 (1976). In addition,
"actions [undertaken which have] 
foreseeable and anticipated disparate 
impact are relevant evidence to prove the 
ultimate fact, forbidden purpose." 
Columbus Board of Education v. Penlck, 443
U.S. 449, 464 (1979); see also Dayton
Board of_Education v._Brinkman , 4 4 3 U.S.
526, 536 n.9 (1979); Teamsters v. United
States, 431 U.S. 324, 339 n.20 (1977).

264



10

Second, union officials admitted 
that the purpose of the seniority 
changeover was to "protect" those male 

workers who were working in the tester 
positions when female workers began to 
move into those jobs in the 1970's. Mr. 
Holly, a union official, R68C at 61, told 
petitioner King that the Tester Concept 
was instituted "to protect people ... who 
were already testers." R68C at 207-08; 
see , R 6 8 C at 71-74. Another union 
official, Craig Payne, told petitioner 
Lorance that she "was not really wanted in 
testing." R68B at 42 (Craig Payne was a 
Vice President of the Union, R68B at 86).6

C o m p a n y  o f f i c i a l s  a n d  
supervisors knew that the incentive to 
change the seniority system came from the 
Union's desire to protect the job 
positions of the male testers and to 
relieve the "tension" in the plant caused 
by the male workers' hostility to the 
advancement of the female workers. R68C 
at 48-54. In addition, a union official, 
Steve Lorenz, told petitioner Lorance that 
a member of "upper management," Skelton,

265



Third, the conduct of the 1979 
Union meet i n g s  d e m o n s t r a t e s  the 
discriminatory purpose of the seniority 
change. The first meeting described in 
the record was attended by approximately 
twelve men, including the treasurer 
(Batterson) and vice president (Payne) of 
the Union, and two women (Lorance and 
Jones). R68B at 84-89. "The men ... were 
upset because women were coming in with 
seniority and . . . bypassing them for the 
upgrades.... They wanted something done

11

the manager of manufacturing, R68C at 
exhibit 15d, called the female workers 
"Suzys;" that "Suzys belonged out making 
the data sets ... didn't belong in testing 
and that Suzys were coming in and hurting 
the men." R68B at 114-16; see also 68A at 
44-45 .

Furthermore, management's hostility 
to women moving into the tester positions 
was illustrated by the fact that women 
were not afforded the same opportunity to 
work on new jobs as men, R68B at 28 and 
30, and R68C at 43, and that men received 
more assistance and training from 
supervisors than women, R68B at 28, 35, 
and 80.

266



12

about it.” R68B at 84. "Most" of the men 
present "were complaining about women 
coming in." R68B at 87.7

The Union responded to the 
complaints from the men by creating the 
Tester Concept. The Tester Concept was 
ratified at the June 28, 1 979 union 
meeting. Pet. Brief at 9-10. It was "a 
very heated" meeting with the men sitting 
on one side of the room and the women on 
the other side.8 R68C at 101. Union 
members complained, once again, "that 
women were coming in with seniority

Petitioner Lorance only learned 
about this meeting because she overheard 
some testers talking about the meeting. 
R68A at 173. Apparently, the men were 
holding several secret meetings to which 
no women union members were invited. R68B 
at 89; see also, R68A at 31-32. These 
"secret" meetings would be a focus of the 
plaintiffs' discovery if they are able to 
pursue their claims.

p The record is unclear as to how 
well and fairly the meeting was published. 
See, R68C at 87-88.

267



13
passing the men up and they were tired of 
it." R683 at 103.9

Fourth, the hostility of the 
male testers to the entry of women into 
tester positions extended from the union 
meetings to the shop floor. For example, 
during the period in 1 979 when the 
seniority change was under consideration, 
offensive posters were repeatedly placed 
"all over" the workplace. R68B at 110;10 
R68A at 28-30; R68C at 23-25. Company 
supervisors and union officials knew

Petitioner Lorance recalled a 
single woman, whose husband worked as a 
tester, speaking in favor of the seniority 
change. She said "she was in favor of 
[the seniority change] because of her 
husband [and because the women testers 
were] taking bread off their table." 
R68B at 104.

1U In one particularly offensive 
set of posters women were shown "standing 
with dresses, like, at their knees, socks 
like nylons, okay, with money hanging out 
of them." The posters had the caption 
"I'm a tester now. I make lots of money. 
I have lots of seniority." R68B at 109.

268



14
about the posters. R68C at 24-27; R68B at 
110-14 .

2. Respondents assert that "[t]he 

agreement is a classic accommodation of 
employer and employee interests," Resp. 
B r . at 15; that it is "narrowly 
tailored, " id . at 6; that it is 
"rational," id. at 36; and that it is a 
"departmental system" like many other 
systems, id. at 14-15. Respondents may 
attempt to establish these points if 
there is a trial on the merits. However, 
these arguments are irrelevant to this 
issue presented on summary judgment and, 
in any event , the present record does not 
support respondents' conclusions.

For example, respondents have 
not established that the division of the 
hourly paid jobs into two seniority units 
qualifies as a standard departmental 
s e n i o r i t y  system rather than, as

269



15
petitioners maintain, an arbitrary 
division designed to advantage male 
workers over female workers.11

F u r t h e r m o r e , re s p o n d e n t s  
m a i n t a i n  that the Tester Concept 
"addressed traditional employer concerns" 
by creating "separate seniority lists for 
skilled and unskilled workers." Resp. 
Br. at 4. Respondents rely on several 
authorities for the proposition that 
employers generally prefer small , 
departmental seniority systems separating 
skilled and unskilled workers. Resp. Br. 
at 15, n.16. However, respondents fail to 
acknowledge that these same authorities 
also conclude that unions usually prefer 
seniority districts "broad enough in scope 
to include all employees for whom they are

11 Respondents' desperate, improper 
and incompetent attempt to rely upon 
outside-the-record facts must be rejected. 
See, n.4, supra , and Appendix B.

270



16

the bargaining representatives." Union 
Contract Clauses (CCH) 1| 51,428 ( 19 5 4) 1 2
(Emphasis added).

The Union, not the Company, 
proposed the Tester Concept. R68B at 104-
05. Accordingly, when the Union proposed 
this seniority change, which split its 
bargaining unit, it advocated a position 
contrary to the standard and expected 
union position. This departure by the 
Union from the general preference of 
unions to avoid divisiveness among the 
members of a bargaining unit supports the 
allegation that this particular decision 
was motivated by a discriminatory purpose. 
See, Teamsters v. United States, 431 U .S.
at 356.

3. R e s p o n d e n t s  b a s e  t h e i r  1

1 ̂  S e e also , G. Bloom & H. 
Northrup, Economics of Labor Relations 237 
(1981); F. Harbison, The Seniority 
Principle in Union-Management Relations 33 
( 1939 ) .

271



17
arguments upon the assumption that it was 
clear when the agreement incorporating the 
Tester Concept was signed in 1979, Joint 
App. 50-56, that tester rather than plant
seniority would govern job downgrades. 
Resp. Br. at 5, 7. However, as
demonstrated by the Union's own position 
statement made in January 1983, it was 
not clear whether tester or plant 
seniority applied to downgrades until 

the petitioners were demoted. 
Appendix A.

After the petitioners were 
downgraded in 1982 they requested that the 
Union file a grievance on their behalf. 
When Local 1942 filed a grievance beyond 
the ten-day period established by the

1 Qcontract, the petitioners complained to 1

1 *3 The Company rejected the 
grievances filed on behalf of King, 
B u e s c h e n  and Lorance because the 
grievances were filed more than 10 days 
after the job downgrade. R68A at exhibit

272



1 8

the International. In an explanation of
its actions to the International, Local
1942 stated that there is a disagreement
about the interpretation of the Tester
Concept between the Union and the Company.

The Union's contention 
is that there were 
three (3) provisions 
provided for employees 
on roll entering the 
testing universe. All 
of these were for the 
upward movement.

* * * * *

The Company's position 
is that they intend to 
a p p l y  t h e  s a m e  
p r o c e d u r e  on the 
downward trend.

Id. (Emphasis added). Consistent with 
the Union's contention in 1983, petitioner 
King had been told by Union officials that

10. The petitioners maintain that the 
Union discriminatorily failed to file a 
timely grievance because the Union "had 
plenty of notice [to file on time 
including] a written request from 
[Lorance] to file a grievance for [the 
three petitioners]." R68B at 176; see, 
R68A at 188-89.

273



19
tester seniority "would be used for 
upgrades only" and that plant seniority 
would be used for downgrades. R68C at 119 

and 123.
Moreover, the 1983 Union 

document indicates that this issue and, 
implicitly, the Union's contention that 
tester seniority applied only to upgrades, 
"had been discussed at the Union meetings 
and the sister had been advised that the 
Union was in the process of negotiating 
the Tester Training Program" and that the 
union is "in a negotiation stage and 
attempting to resolve these problems with 
the Company...." Appendix A. Consistent 
with this 1983 statement that the Union 
was still negotiating with the Company, 
petitioner Bueschen was told in 1981 by 
the president of the Union that the Union 
was still negotiating about the Tester

274



20

Concept. R68A at 78-79.14
Seniority systems and collective 

bargaining agreements often are ambiguous 
a n d  s u b j e c t  to c o n f l i c t i n g  
interpretations. The meaning of such 
agreements is hammered out during their 
implementation by employers and by the 
resolution of the disputes that arise from 
that implementation. To compel workers, 
as the respondents' position requires, to 
file charges of discrimination before such 
agreements are implemented would require 
the filing of unnecessary litigation about 
the hypothetical application of unclear 
collective bargaining agreements and 
employment practices. Pet. Br. at 48- 
55; United States Amici Curiae Br. at 23- 

24 .

14 The Tester Concept was never 
approved by the International and never 
included in the master contract between 
the Union and the Company. R68C at 214-15; 
R68B at 122-24.

275



21

This case is a good example. 
From 1979 through 1982 it was unclear 
whether the new seniority system applied 
to downgrades. The Union maintained that 
it did not, and the Company maintained 
that it did. If the petitioners filed a 
charge before they were harmed by a 
downgrade, the district court would have 
be e n  p l a c e d  in the p o s i t i o n of 
interpreting the agreement prior to its 
application by the parties -- assuming 
that the court would rule that the issue 
was ripe for decision.
III. RESPONDENTS ASK THE COURT TO ADOPT AN 

EXTREME POSITION THAT WAS REJECTED BY 
BOTH COURTS BELOW AND THAT NO COURT 
HAS ADOPTED.
AT&T and Local 1942 argue that 

employees may not make a Title VII 
challenge to an ongoing seniority system 
"unless that challenge is brought within 
180 days of the date of adoption." Resp. 
Br. at 17-18. This extreme position has

276



22

not been adopted by any court and was 
explicitly rejected by both courts below.

As the district court recognized, the 

rule advocated by respondents would 
"encourage! ] people to bring unripe 
claims alleging harms that they may never 
experience," and would "only clog the 
already overburdened courts with lawsuits 
that are not ripe." Pet. App. 29a-30a.*5
Such a rule would guarantee needless 
c o n f r o n t a t i o n  r a t h e r  tha n  the 
" [ c ]ooperation and voluntary compliance" 
sought by Congress "as the preferred 15

15 See also Johnson v. General 
Electric , 8 4 o" F . 2 d~ 132, 136 (1st Cir.
1988) ("It is unwise to encourage lawsuits 
before the injuries resulting from the 
violations are delineated, or before it is 
even certain that injuries will occur at 
all"); NLRB v. International Bhd . of 
Elec. Workers, 827 F.2d 530, 534 (9th Cir. 
1987); Heiar v. Crawford Cty, 74 6 F . 2d 
1190, 1194 (7th Cir. 1984), cert. denied,
472 U.S. 1027 ( 1 9 8 5 ) ;  E EOC V .
Westinghouse, 725 F.2d 211, 219 (3d Cir.
1983), cert. denied, 469 U.S. 820 (1984).

277



23
means for achieving [Title VII's] goal."
Alexander v. Gardner-Denver_Cck » 415 U . S .
36, 44 (1974). See also Reed v._United
Transportation Uni on, 57 U.S.L.W. 4088,
4090 (Jan. 11, 1989).16

The court of appeals rejected 
respondents 1 proposed rule for the same 
reasons: "Requiring employees to contest
any seniority system that might some day 
apply to them would encourage needless 
litigation," and "would frustrate the 
remedial policies that are the foundation 
of Title VII." Pet. App. 8a. Under
respondents' approach, the Seventh Circuit 
noted, "any seniority system would be

lb An employee's natural desire to 
seek an informal resolution or to attempt 
to comply with the policy's requirements 
(as did petitioner Lorance) would be 
stymied by a forced march to the 
courthouse at the outset. See e.g . Heiar
v ._C r aw ford Ct y , 746 F . 2d at 1194
("People do not want to begin their 
employment by suing their employer over a" 
policy that will affect them years later, 
if at all.)

278



immune to challenge [180 or] 300 days
after its adoption," and " [ f ]uture
employees would therefore have no recourse

when confronted with an existing seniority
s y s t e m  that they b e l i e v e  to be
discriminatory." Id.

The harshness of respondents'
position is chilling. This position would
l a r g e l y  i n s u l a t e  i n t e n t i o n a l l y

1 7discriminatory employment practices from 
challenge 180 (or 300) days after their 
adoption even with regard to persons not 
employed by the company or represented by 
the union at the time of the adoption of 
the practice. Accordingly, an employment 
test used for promotional decisions and 
neutral on its face but instituted with an 
intent to discriminate would be immune to 11

24

11 Respondents' position would 
apply to all discrimination claims 
brought under Title VII. Resp. Br. at 17 
n . 2 1 .

279



2 5

challenge by a worker hired one year after 
the adoption of the test. Even though the 
newly hired worker was harmed by the test 
one week after her employment and even 
though she filed a charge the following 
day, the respondents' position would 
require the rejection of the charge as 
untimely filed.

Not surprisingly, no court has ever
embraced the extreme view of Title VII's
f i l i n g r e q u i r e m e n t e s poused by
respondents.
IV. IN T E R N A T I O N A L  A S S O C I A TION O F 

MACHINISTS v. NLRB DOES NOT SUPPORT 
RESPONDENTS' POSITION.
R e s p o n d e n t s  rely heavily on 

International Association of Machinlsts v . 
NLRB , 362 U.S. 411 (1960) ( " Bryan
Manufacturing") , construing the six-month 
statute of limitations under § 10(b) of
the National Labor Relations Act, 29 
U.S.C. § 160(b). See, Resp. Br . at 18-

280



26
23. There are two reasons that Bryan 
Ma n u fa c tur i n g d o e s  not s u p port 
respondents' position: even if the NLRA

limitations doctrine applied to Title VII, 
it does not bar the petitioners' claims; 
in any event, the NLRA limitations 
doctrine does not apply.

1. For the reasons set forth in our 
principal brief, Bryan Manufacturing would 
not bar plaintiffs' claims even if that 
decision applied in the Title VII context. 
In general, petitioners have maintained
that B r y an_Manufac turinq precludes
untimely challenges to flaws in the 
establishment of otherwise lawful labor 
policies but does not preclude an action, 
such as L o r a n e e , alleging that the 
challenged policy is itself illegal. Pet. 
Br. at 64-67.

P e t i t i o n e r s '  p o s i t i o n  Is 
supported by the reliance of the Court in

281



27
Bryan Manufacturing on the decision of the 
National Labor Relations Board in Potlatch 
Forests , Inc., 87 NLRB 1193 (1949), as an 
example of the correct interpretation of 
§ 10(b) of the NLRA. 362 U.S. at 419. In 
Potlatch the Board held that, by "applying 
and giving effect to a (discriminatory] 
seniority policy" during the limitations 
period of §10(b), an employer violated the 
NLRA regardless of the date on which the 
policy was adopted. 87 NLRB at 1211. 18 
Like AT&T and Local 1942 In the present 
case, the respondents in Potlatch adopted 
an illegal policy which did not cause

The challenge in Potlatch was to 
a "Return-to-Work Policy" providing "that, 
in the event of a lay-off resulting from a 
curtailment of operations, employees who 
returned to work ... during the course of 
the 1947 strike were to possess 
preferential retention rights over 
[strikers]." 87 NLRB at 1208. As do 
respondents, the employer argued that "the 
validity of the . . . policy is no longer 
open to attack, because it was established 
some 16 months before the filing of the 
charge." Id. at 1210-11.

282



2 8

employees an Injury In the form of layoffs 
until a reduction in force was required. 
However, with each layoff under the 

u n l a w f u l  p o l i c y  the c o m p a n y  
"discriminated" against employees who had 
engaged in protected union activity and 
thereby committed a fresh violation of the 
NLRA. 8 7 NLRB at 1 2 11 . 19

In rejecting the employer's 
statute of limitations defense the Board 
emphasized that "[t]he issue in this case 
is not whether the Respondent committed an 
unfair labor practice by inaugurating the 
policy, but whether it violated the law by 
c o n t i n u i n g  to m a i n t a i n  it; more 
specifically by applying and giving effect
to_it in_. . . . lay-offs [which] occurred
well within the statutory period limited 
by Section 10(b)." Id. at 1211 (emphasis 
added) .

Because an independent violation 
occurred with each application of the 
unlawful policy, the Bryan Manufacturing 
Court cited Pot latch as a case where 
evidence of the discriminatory motive at 
work in the initiation of the policy was 
properly "used to illuminate current 
conduct claimed in itself to be an unfair 
labor practice." 362 U.S. at 419-20. The 
fact that, as the Board goes on to say, 
that "[e]ven without such consideration 
• • . the allegations . . . would have been

283



2 9

2. Moreover, recent decisions of 
this Court strongly suggest that the 
restrictive limitations doctrine of Bryan 
Manufacturing is properly confined to the 
narrow area within the NLRA governing 
individual challenges to allegedly unfair 
labor pra c t i c e s  in bargained - f o r 
agreements.

In DelCostello v. Teamsters, 462 
U.S. 151 (1983), the Court described the § 
10(b) limitations period as specifically 
"attuned to ... the proper balance between 
the national interests in stable 
bargaining relationships and finality of

found amply supported by" proof of facts 
within the limitations period, 87 NLRB at 
1211, does not alter this principle. That 
the challenged policy in Potlatch employed 
an overt distinction between strikers and 
non-strikers does not vitiate the 
principle of the case -- for which it is 
cited in 3ryan Manufacturing -- that the 
current conduct constituted by the 
application of a policy "claimed in 
itself to be" unlawful, 362 U.S. at 420, 
is actionable regardless of the date of 
its original adoption.

284



30
private settlements, and an employee's 
interest in setting aside what he views as 
an unjust settlement under the collective

bargaining system." Id. at 171 (quoting
United Parcel_Service v . Mlthcell, 451
U.S. 56, 70-71 (1981) (Stewart, J.,
concurring)). In refusing to apply § 
10(b) to a claimed violation of an 
employee's free speech as to union 
matters, this Court in Reed v. United 
Transportation Union, 57 U.S.L.W. at 4092
concluded both that the federal Interest 
in repose in collectively bargained 
agreements is not central to the goal of § 
101(a)(2) of the Labor-Management 
Reporting and Disclosure Act (LMRDA) , 29
U . S . C .  § 4 1 1 ( a ) ( 2 ) ,  and that a
countervailing federal interest in the 
protection of free speech informs the 

LMRDA.
In particular, the Court relied upon

285



31
the fundamental individual interests in 
free speech modeled on the Bill of Rights 
and protected by the LMRDA. 57 U.S.L.W.
at 4090. This different balance of 
interests, the Court held, precluded the 
application of the narrow § 10(b)
limitation period.

Title VII also does not share the 
overriding legislative interest in the 
stability of collective bargaining 
agreements that led to § 10(b) and to its 
restrictive statute of limitations 
doctrine for some claims under the NLRA. 
Although resolution of disputes is one 
objective of Title VII, this statute, 
like the LMRDA, "implements a federal 
policy ... that simply had no part in the 
design of a statute of limitations for 
unfair labor practice charges," Reed, 57
U.S.L.W. at 4092, and that weighs heavily 
against the application of a restrictive

286



3 2

limitations period.
The Court in Reed emphasized the need 

for the limitations period to "accommodate 
the practical difficulties faced by 
§ 101(a)(2) plaintiffs, which include
identifying the injury, deciding in the 
first place to bring suit against and 
thereby antagonize union leadership, and 
finding an attorney." 57 U.S.L.W. at
4 0 9 0. See also , Owens_v.__Okure , 57
U.S.L.W. 4065 (Jan. 10, 1989). Identical
obstacles face Title VII plaintiffs. See, 
Pet. Br. at 48-55. Aware of these 
obstacles in amending Title VII in 1972, 
Congress explicitly approved decisions 
having "an inclination to interpret [the 
§ 706(e)] time limitation so as to give
the aggrieved person the maximum benefit 
of the law." Section-by-section analysis 
of Equal Employment Opportunity Act of 
1972, P.L. 92-261, 1 18 Cong. Rec . 7167

287



33
(March 6, 1972).20

2U R e s p o n d e n t s  rely on the 
legislative history of the 1972 amendments 
to Title VII to support the position that 
section 706(e) should be interpreted in 
light of the § 10(b) limitations period of 
the NLRA. Brief at 18 n.22. But that 
history indicates that Congress merely 
adopted a limitations period "similar" to 
that in the labor statute. It in no way 
supports the contention that Congress 
meant to incorporate its restrictive 
limitations doctrine. In fact, it is 
clear from the same legislative history 
that Congress intended to endorse the 
doctrine of continuing violations and 
decisions interpreting the statute of 
limitations as running "from the last 
occurrence of the discrimination and not 
from the first occurrence ... and other 
interpretations of the courts maximizing 
the coverage of the law." Sectlon-by- 
section analysis, 118 Cong. Rec . 7167 
(March 6, 1972).

In addition, respondents support 
their contention by referring to Ford 
Motor Co. v. EEOC, 4 58 U.S. 219, 226 n.8 
(1982), which cites only the patterning of 
Title VII!s remedial provision. Section 
706(g), on the analogous section of the 
NLRA. Even in that context, Ford Motor 
Co . cautions that " [t]he principles 
developed under the NLRA generally guide, 
but do not bind, courts in tailoring 
remedies under Title VII." Id.

There is no support for the 
proposition that Congress intended to 
incorporate in Title VII the restrictive

288



34
The policy underlying Title VII, of

course, seeks the elimination of
employment discrimination. "Congress
indicated that it considered the policy
against discrimination to be of the
'highest p r i o r i t y . '" Alexander v.
Gardner-Denver Company, 415 U.S. 36, 47
(1974), quoting Newman v. Piqqie_Park
Enterprises , 390 U.S. 400, 402 (1968).
The right to be free of employment
discrimination is this Act's equivalent of
the free speech protection of the LMRDA.
Congress specifically intended to achieve
this important national goal through Title
VII actions brought by private litigants

2 1acting as "private attorneys general." * 21

limitations doctrine of the NLRA.
21 Title VII charges and lawsuits 

"provid[e ] the 'spur or catalyst which 
causes employers and unions to self
examine and to se 1 f-eva1uate their 
employment practices and to endeavor to 
eliminate, so far as possible, the last 
vestiges' of their discriminatory

289



3 5

In view of the strong federal interest in 
eradicating employment discrimination 
through private actions, the balance of 
interests underlying § 10(b) of the NLRA
as interpreted in B ryan Manufacturing 
simply does not apply in the context of 
Title VII.
V. THE COURT'S PRIOR DECISIONS PROVIDE 

THAT A SENIORITY SYSTEM DESIGNED TO 
DISCRIMINATE MAY BE TIMELY CHALLENGED 
BY AN INTENDED VICTIM WHEN SHE IS 
HARMED BY THE OPERATION OF THE 
SYSTEM.
Respondents contend that prior Title 

VII decisions of this Court either are 
"[ijrrelevant," Resp. Br. at 25, or 
s u p p o r t  r e s p o n d e n t s '  e x t r e m e  
interpretation of §706(e). Id. at 23-25, 
39-44. Petitioners submit that, to the 
contrary, these decisions demonstrate that 
an e m p l o y e e  m a y  c h a l l e n g e  an

practices . " Teamsters, 431 U.S. at 364
(quoting Albemarle Paper Co._v. Moody, 4 22
U.S. 405, 417-18 (1975)).

290



36

intentionally discriminatory policy 
whenever that policy is applied to her 
detriment. See, Pet. Br. at 25-44.

I n Bazemore v. Friday, 478 U.S. 385
(1986), the Court declared that each 
application of a discriminatory pay 
practice is "a wrong actionable under 
Title VII, regardless of the fact that 
this pattern was begun prior to the 
effective date of Title VII." Id. at 395- 
96. The violation in Bazemore was simply 
that the current application of the pay 
practice "perpetuated" the discriminatory 
effects of a practice established before 
Title VII became effective. Id. at 395. 
The pay practice was currently applied in 
a neutral manner and no intentional 
d i s c r i m i n a t i o n ,  other than the 
perpetuation of prior discrimination, was 
established.

S i m i l a r l y ,  the fact that the

291



37
intentionally discriminatory seniority 
policy in this case was originally adopted 
outside the limitations period cannot 
protect it from challenge at the time it 
is applied to the detriment of female 
employees.22

Discussing a seniority system adopted 
outside the statute of limitations, the 
Court in United Air Lines, Inc, v. Evans, 
431 U.S. 553 (1977), endorsed petitioners' 
contention that Title VII "does not 
foreclose attacks on the current operation 
of seniority systems which are subject to 
challenge as discriminatory." _Id . at 
560. Evans' particular claim was barred 
because she did not allege any illegality 
in the seniority system. As the Court 2

2 2 This conclusion is consistent 
with general civil rights doctrine which 
permits a challenge to an unconstitutional 
policy whenever it is given effect. See 
e . , Mobile v. Bolden , 4 4 6 U.S. 55
(19 8 0) ; Vi 1 laqe_of Arlington Heights_v .
Metropolitan Housing Corp., supra.

292



38
explained in Bazemore Friday, the 
result in Evans would have been different 
had plaintiff alleged that "the seniority 

system itself was intentionally designed 
to discriminate." Such a contention—  
identical to that alleged by petitioners 
here -- would have properly asserted that 
defendant was "engaged in discriminatory 
practices at the time" the suit was 
brought and would therefore have made out 
a violation of Title VII. Accordingly, a 
"present violation exists" by virtue of 
the current operation of an intentionally 
discriminatory system regardless of the 
remoteness of its original adoption. 
Bazemore . 478 U.S. at 396 n.6.

As described in petitioners' main 
brief, numerous decisions of the Court 
support the position that the statute of 
l i m i t a t i o n s  for challenges to an 
intentionally discriminatory policy runs

293



3 9

from the date of its most recent 
application to the detriment of a 
protected class member. In American
Tobacco_Co. v. Patterson, 4 5 6 U . S . 6 3
(1982), for example, the Court assumed 
that a policy alleged to be the result of 
intentional discrimination could be 
challenged as long as it was in operation.

The Court rejected the EEOC's 
advocacy of a distinction for purposes of 
§ 703(h) coverage between seniority plans 
adopted before and those systems adopted 
after the effective date of Title VII. In 
so concluding, the Court implicitly 
approved challenges to the application of 
discriminatory policies adopted outside 
the 180-day limitations period. 456 U.S. 
at 70. The Court noted that in Patterson 
one Title VII challenge (alleging race 
discrimination) was filed within the 
statute of limitations period after the

294



40
policy's adoption and a second challenge 
(alleging sex discrimination) was filed 
beyond that period. 456 U.S. at 70, n. 4. 

The Court expressed no hesitation as to 
the timeliness of the latter challenge by 
employees to whom the challenged policy 
had applied since its adoption and for a 
period longer than the limitations 
period.23

Pa 11 erson supports the conclusion 
that a challenge to an intentionally 
discriminatory seniority policy is timely 
if filed within the statute of limitations 
period running from the date of its most 
recent application.

Respondents' contention that the 
" f a c i a l l y  neutral" nature of the

23 The Court also indicates that 
"persons whose employment begins more 
than 180 days after an employer adopts a 
seniority system" may, contrary to the 
extreme position of respondents, see, 
Section III, supra, file a timely charge. 
456 U.S. at 70.

295



41
challenged policy is somehow significant 
Is belled by the case law. The relevant 
Inquiry Is whether "differences in 
employment conditions" are "the result of 
an Intention to discriminate because of 
race, color, religion, sex, or national 
origin. " See e .g . California Brewers 
Association v. Bryant, 444 U.S. 598, 611 
(1980). The Court's Title VII cases do 
not support the suggestion that a policy 
deliberately designed to disadvantage 
women is protected against subsequent 
challenge if the mechanism chosen does not 
involve overt distinctions based on 
gender.

Where an employer and union apportion 
seniority credits in a manner designed to 
discriminate against female workers, the 
fact that they implement the scheme 
through the "neutral" operation of the 
seniority system does not vitiate the

296



42

discrimination.24 The fact that the 
companies and unions attempt to conceal 
their intentionally discriminatory 

conduct should not shield them from Title 
VII liability.25

For example, it would not be 
permissible for a union and employer to 
decide that, because a particular division 
was predominately female, seniority 
credit for service in that division would 
be awarded at a rate half that of the rest 
of the plant. Such a policy, although 
"facially neutral," clearly constitutes an 
"unlawful employment practice" under 
Section 703(a) of Title VII. Although 
lacking an explicit gender distinction, 
each operation of this intentionally 
discriminatory seniority policy would be 
actionable. See, United States Amici 
Curiae Br. at 16 n.19.

O R The respondents compare the 
application of their proposed standard to 
"facially lawful" with their standard's 
application to "facially unlawful" 
seniority systems. See e .q ., Resp. Br. at 
31. This comparison is meaningless; no 
company or union is going to broadcast in 
collective bargaining agreement its 
invidious intent by instituting an overtly 
discriminatory seniority system. See,
Uni ted _S tat es v, B d of S c h o ol
Commissloenrs , 573 F . 2d 400 , 412 ( 7th
Cir.), cert. denied, 439 U.S. 824 (1978)
("In adage when it is unfashionable for 
state officials to openly express racial

297



43
Respondents' reliance on Delaware

State College v .__Ricks 449 U.S. 250
(1980), is also misplaced. Like the 
plaintiff in Evans, the plaintiff in Ricks 
challenged a discrete act of alleged 
discrimination against him -- in his case, 
the decision of a college board of 
trustees to deny him tenure. Also like 
the plaintiff in Evans, the plaintiff in 
Ricks failed to file his charge of 
discrimination within the statutory period 
after this discrete act occurred. He did 
not allege or prove that he was harmed by 
the c o n t i n u i n g  o p e r a t i o n  of any 
discriminatory system or policy; rather 
"the only alleged discrimination occurred 
—  and the filing limitations periods 
therefore commenced —  at the time the 
tenure decision was made and communicated

hostility, direct evidence of overt 
bigotry will be impossible to find.")

298



4 4
to Ricks." 449 U.S. at 258; see also, 449 

U.S. at 258 n .9 .
As demonstrated in our principal 

brief, the Court in its prior Title VII 
seniority cases has repeatedly recognized 
the operation of an illegal seniority 
system as an unlawful employment practice, 
without regard to the date on which the 
system was adopted or the date on which 
the plaintiff Initially became subject to 
the system. Pet. Br. at 31-44. Nothing 
in Evans , Ricks, Bazemore, or any other 
decision of this Court supports a 
departure from this well established 

principle.
Conclusion

Petitioners respectfully request that 

the Court reverse the judgment of the

299



45

Seventh Circuit.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013

BARRY GOLDSTEIN*
PAUL HOLTZMAN

NAACP Legal Defense and 
Educational Fund, Inc. 

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

PATRICK 0. PATTERSON
NAACP Legal Defense and 

Educational Fund, Inc. 
634 South Spring Street 
Suite 800
Los Angeles, CA 90014

BRIDGET ARIM0ND
14 West Erie Street 
Chicago, Illinois 60610

Attorneys for Petitioners 
Patricia A. Lorance, et al.

♦Counsel of Record

300



APPENDIX A - Exhibit 11 to the 
Deposition of Petitioner Bueschen, 

R.68A, exhibit 11.



3lutrrnn!inunl iHt n!lu*rhnnJ> nf tlrrlriml lllnrkrrs

1741 JE R IC H O  R O A D  L O C A L  19 4 2  TE L E P H O N E  e59-2833
A U R O R A . I I  60506 .

January 12, 1983

James P. Conway 
Sixth District Vice President 
37 3 Schrr.a 1 e Rd., Suite 201 
Carol Stream, Illinois 60187
Dear Sir and 5rother:

SIXTH DISTRICT, I.B.E.W.

Re: Three letters of complaint.
In response to your letter dated 12-20-82. In 1978 this Local entered 
into negotiations with the Montgomery shop. As to what is referred to, 
it is the Montgomery Korks Tester Training Program. This program was 
originally designed to further train the testers presently on roll as 
well as to provide a means by which the non-testers on roll could ob
tain the necessary training to become testers. This was made part of 
the contract in 1980. (See tabs 1 * 2 )  It was further agreed during 
1980 bargaining that the Cbmpany would negotiate and prepare a booklet 
(Copy enclosed), to pass out to all testers.
The Union and the Company have spent several hours attempting to nego
tiate the Tester Training Program. The final meeting was held on 12-21 
82 with J.E. McGovern, Bargaining Agent, Western Electric Company, 
wherein we were unable to agree on tabs 3,4,5,6,*7. At that time the 
Company was advised by me that grievances would be issued on behalf 
of all testers Involved. (See attached letters for each of the individ 
ua1s involved).

Fraterna1ly,

, /'ja.T.es Cappleman 
/ - President * Business Manager 

I.B.E.W, Local 1942
JC/ia 
Enc.

E X H I B I T
SoescMeM 
_if__

302



Sister P.A. Lorance Ef809857

This particular issue had been discussed at the Union meetings and 
the sister had been advised that the Union was in the process of 
negotiating the Tester Training Program.
The Union's contention is that there were three (3) provisions provided 
for employees on roll entering the testing universe. All of these were 
for the upward movement.

1) . Employees spend five (5) years in a tester universe before
being able to bridge Montgomery service for the upward 
movement.

2) . Obtain the same amount of service as other testers in the
universe.

3) . Completion of the five (5) modules in the Tester Training
P rogram.

The Company's position is that they intend to apply the same procedure 
on the downward trend. The specific Information on P.A. Lorance is; 
she has a 4-8-70 Montgomery service date. She entered the testing uni
verse from a 32 grade to a 35 grade on 10-2C-78. She has passed four (4) modules as to date. She was downgraded from a 38 grade tester on 
11/15/82 to a 37 grade tester.
There are presently sixty-seven 167) 38 grade testers with less Mont
gomery service.
Grievances were issued on her hehalf, (copies attached), and still at 
the present time the Company is taking the position that these griev
ances are untimely. We still contend that since we were in a negotia
tion stage and attempting to resolve these problems with the Company, 
that our time frame started 12-21-82.

Sister Lorance sent me a letter dated 11-9-82 whereing she gave me
five (5) days to respond. Subsequently I was attending a EM3 Council
Meeting in Columbus, Ohio and was unable to do so.

303



Sister J .K. King Ef805595

This particular issue had been discussed at the Union meetings and 
the sister had been advised that the Union was in the process of 
negotiating the Tester Training Program.
The Union's contention is that there were three (3) provisions provided 
for employees on roll entering the testing universe. All of these were 
for the upward movement.

1) . Employees spend five (5) years in a tester universe before
being able to bridge Montgomery service for the upward reeve 
ment.

2) . Obtain the same amount of service as other testers in the
universe.

3) . Completion of the five (5) modules in the Tester Training
Program.

The Conypany's position is that they intend to apply the same procedure 
on the downward trend. The specific information on J.K. King is? she 
has a 5-4-71 Montgomery service date. She entered the testing universe 
from a 32 grade to a 3$grade on 2-25-80. She has passed three (3) of 
the testing modules as to date. She was downgraded from a 37 grade 
tester to a 36 grade tester On 8/23/82.
There are presently thirty-two (32) 37 grade and sixty-one (61) 35 gr«o 
testers with less Montgomery service.
Grievances were issued on her behalf, (copies attached), and still at 
the present time the Company is taking the position that these griev
ances are untimely. We still contend since we were in a negotiation 
stage and attempting to resolve these problems with the Company, that 
our time frame started 12-21-82.

Sister King sent me a letter dated 11-4-82 wherein she cave me
five (5) days to respond. Subsequently I was attending a EM3 Council
meeting in Columbus, Ohio and was unable to do so.

304



lister C.D. Bueschen E*809256

This particular issue had been discussed at the Union meetings and 
the sister had been advised that the Union was in the process of 
negotiating the Tester Training Program.
The Union's contention is that there were three (3) provisions provided 
(or employees on roll entering the testing universe. All of these were 
for the upward movement.
1) . Employees spend five (5) years in a tester universe before

being able to bridge Montgomery service for the upward move
ment.

2) . Obtain the same amount of service as other testers in the
universe.

3) . Completion of the five (5) modules in the Tester Training
Program.

The Company's position is that they intend to apply the same procedure 
on the downward trend. The specific information on C.D. Bueschen is? 
she has a 2-2-70 Montgomery service date. She entered the testing uni
verse from a 32 grade to a 35 grade on 11-30-80. She has passed one (1) 
of the testing modules as to date. She was downgraded from a 35 grade 
tester on 11-15-82 to a 33 grade utility operator.
There are presently one hundred four ( 104) 36 grade testers with less 
Montgomery service? thirty-five (35) - 37 grade testers, seventy-nine 
179) - 38 grade testers, and one (1) - 39 grade testing layout operator.
Grievances were issued on her behalf, (copies attached), and still at 
the present time the Company is taking the position that these griev
ances are untimely. We still contend since we were in a negotiation 
stage and attempting to resolve these problems with the Company, that 
N r time frame started 12-21-82.

Sister Bueschen sent me a letter dated 11 — 4—82 wherein she gave me
five (5) days to respond. Subsequently I was attending a EH3 Council
fleeting in Columbus, Ohio and was unable to do so.

305



APPENDIX B - Correspondence Regarding the
Use by Respondents in their Brief of
Outside-the Record Facts and a Privately
Commissioned Research Project:
1. Letter from Barry Goldstein, counsel 

for petitioners, to Susan Korn, 
senior labor analyst, BNA Plus,
March 1, 1989,

2. Letter from Paul Wojcik, general 
counsel of BNA, to Barry Goldstein, 
March 1, 1989,

3. Letter from Barry Goldstein to Rex 
Lee and Stephen Feinberg, counsel for 
respondents, March 2, 1989.

4. Letter from David Carpenter, counsel 
for respondents, to Barry Goldstein, 
March 3, 1989.

5. Letter from Barry Goldstein to David 
Carpenter, March 3, 1989. 6

6. Letter from David Carpenter to Barry 
Goldstein, March 6, 1989.

306



NAACP l b g a l  d e f r n s b  
AND RDUCATIONAL FUND, INC.

Suitr 301
1275 K S trw t, NW
Wiuhington, D C  20005 (202) M2-1300 Ft*: (202) 6R2-13I2

HAND-DELIVER

March 1, 1989

Ms. Susan Korn 
BNA Plus, Room 215 
1231 25th Street, N.W.
Washington, D.C. 20037
Dear Ms. Korn:

As I told you yesterday by telephone, I just learned that 
the Appendix to the Respondents* Brief in Lor a nee— v_.— AT&T 
Technologies, No. 87-1428, entitled "Contracts with Departmental 
Seniority," was prepared by a section of the Bureau of National 
Affairs called "BNA Plus.” There was no reference In the brief, 
which I have sent to BNA, to the source of the data other than 
B N A . 1

By telephone yesterday I requested a copy of the "report." 
If any, from which this chart was taken. You told me that this 
was a "customized" job. I requested all the Information about 
the chart: for example, there Is no Indication as to bow the so- 
called "representative sample," see, Resp. Brief at 15 n.15, was 
determined, how "departmental" was defined, or even the dates for 
the contracts. You told me that it was contrary to BNA policy to 
release the "specifications" for a "customized" job or even the 
name of the client.

This BNA work-product, assuming that It has not been altered 
In any way, can not be evaluated without BNA providing the 
"specifications” for the Job, and the supporting Information 
about the sample, the definitions used, etc. Of course It is 
Important to evaluate not only the validity of BNA s work 
product, but also whether SNA's work product has been properly

1 There is no reference In the Table of Authorities to 
the BNA report. The only reference In the Brief to the source 
for the report Is "Appendix to this Brief," Resp. Brief at 15 
n.15. The Appendix only refers to the "Statistics of Bureau of 
National Affairs on Departmental Seniority Systems;" ^there is 
also a copyright 1989 by The Bureau of National Affairs."

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307



Ms. Susan Korn 
March 1, 1989 
Page 2
used by AT&T Technologies and the Union. Obviously, this 
evaluation can not even be begun without the supporting 
information, methodology and definitions used to prepare this chart.

The petitioners reply brief is due on March 7. I need the 
above information immediately in order to determine whether and, 
if so. In what matter a reply should be made to this BNA work- product .

If a BNA “client" uses, as here, in a Supreme Court Brief a 
customized product from BNA without revealing that it is such a 
product or setting forth all of the Information necessary for an 
evaluation of the BNA product, then BNA should reveal all of the 
necessary information in order to assure that neither the Court 
is misled nor opposing parties harmed.

I know that it is not BNA who has sought to introduce facts 
from outside of the Record Into the argument before the Supreme 
Court. But since, as I have been told, BNA "prepared" these 
facts, BNA has a responsibility for the use or misuse of its 
product.

As a result of the time requirements for filing a reply 
brief, I would appreciate an immediate response.

Very truly yours.

Barry uoidstein

BG:oet

308



Hi

T H E  B U R E A U  O  E N A T  I O N A L  A F F A I R S ,  I N C .

Barry Goldstein
NAACP Legal Defense and
Educational Fund, Inc.
Suite 301
1275 K Street, N.V.
Washington, D.C. 20005
Dear Hr. Goldstein:

Your letter to Susan Korn has been referred to me for a reply.
The Bureau of National Affairs, Inc., does not reveal the identity of its 

subscribers, the products they subscribe to, or the nature of any research 
done on their behalf. Such information is guarded in order to protect the 
privacy rights of our customers and the proprietary rights of BNA in its 
customer lists.

Your inquiries concerning the source and nature of information used in a 
court brief, and the question of whether such use is proper or improper, would 
be store properly directed to those filing the brief.

N WofdV
President, G e n e ra l  O m n v r l ,

INrrer IMal (?l>2> 4S2S7V)

March 1, 1989

Yours truly

1231 T^m y-firth Slreet, NorlhweM, WashlnRIon, DC 20037 O Telephone (202) 332-3200 D TELEX: 283656 BNM WSII

309



March 2, 1989

Rex E. Lee, Esquire
c/o David W. Carpenter, Esquire
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Stephen J .  Felnberg, Esquire 
Asher, Pavalon, Gittler 

& Greenfield, Ltd.
Two North LaSalle Street 
Chicago, Illinois 60602

Re: Lorance v. AT&T Technologies, Inc.
Dear Mr. Lee and Mr. Felnberg:

By this letter I an requesting that you agree to remove the 
Appendix and the entire reference to the Appendix, the last 
sentence in footnote 15 on page 15, from Respondents' brief. The 
Appendix contains entirely outslde-the-record facts prepared, as 
I understand it, expressly for the Respondents. The facts are 
unpublished and unavailable. There is no way for the Petitioners 
to verify or evaluate the "facts" contained in the Appendix. The 
extra-record material in improper and should be stricken from the 
Respondents' Brief. R. Stern, E. Gressman, S. Shapiro, Supreme 
Court Practice (Sixth ed. 1986) at 564-65.

As I set forth in the enclosed letter to Ms, Susan Korn, an 
employee of BNA Plus, I have determined that the material 
enclosed in the Appendix to Respondents' Brief in Lorance and 
referred to on page 15, in the last sentence of footnote 15, 
does not come from a published source. Rather, I have been 
Informed by BNA that it was a "customized" Job prepared to 
certain "specifications" for an unnamed "client."

Other than a general reference to BNA there is no source 
cited for the data and conclusions submitted to the Court in the 
Appendix and footnote 15 of the Brief, As stated in the letter 
to BNA:

This BNA work-product, assuming that it 
has not been altered in any way, can not be 
e v a l u a t e d  without BNA p r o v i d i n g  the 
"specifications" for the job, and the 
supporting information about the sample, the 
definitions used, etc. O f  course, it i s

1275 K  Street, N.W ., Suite 301, Washington, D  C  20005 202/682 1300 Fax; 202/682-1312 Modem: 202/682-1318

310



Rex E. Lee, Esquire 
Stephen J. Feinberg, Esquire 
March 1, 1989
Page 2

important to evaluate not only the validity 
of BNA'a work product, but alao whether BNA’a 
work product has been properly used by ATST 
Technologiea and the Onion. Obviously, this 
evaluation can not even be begun without the 
supporting information, methodology and 
definitions used to prepare this chart (in 
the Appendix]

BNA refused to produce any information or even the name of 
118 client "in order to protect the privacy rights of our 
customers and the proprietary rights of BNA in its customer 
lists." Letter from Paul N. Wojcik, General Counsel, BNA, to 
Barry Goldstein, dated March 1, 1989. (The letter Is enclosed). 
BNA directed the Petitioners' "inquiries concerning the source 
and nature of information uaed ... to those filing the brief." 
Id.

The Supreme Court "has consistently ... condemned" the 
practice by counsel of "attaching to a brief {as Respondents' 
counsel have done in Lorance1 some additional or different 
evidence that la not part of the certified record." Supreme 
Court Practice at 564. As noted in Supreme Court Practice, 
"appellate courts have dealt promptly and severely with such 
infractions (by, for example] granting a motion to strike the 
'offending matter.*" Id. at 564-65.

The material in the Respondents' Brief is particularly 
troublesome because there is no reference in the Brief to the 
fact that the material resulted from a privately commissioned 
study that is unavailable to the Court, opposing counsel, or the 
public. Nevertheless, the Respondents refer to their private 
study a a a "representative sample of collective bargaining 
agreements." Id. at 15 n.15.

Of course, the extra-record facts presented in the 
Defendants' Brief do not fall under "the so-called Brandeis brief 
technique in bringing to the Court's attention published material 
containing facts which bear upon the reasonableness of 
legislation." Supreme Court Practice, at 565 (Emphasis added). 
The Respondents seek to introduce before the Supreme Court 
unpublished material; moreover, the facts are privately 
developed, Irrelevant to the reasonableness of any legislation, 
and submitted without any foundation or authentication. The 
presentation of these facts would be inadmissible before the 
district court since no foundation has been established; to say 
the least, it is inappropriate that the Respondents have sought 
to present to the Supreme Court this unpublished, outside-the- 
record material from some unidentified "sample."

311



Rex E. Lee, Esquire 
Stephen J. Pelnberg, Esquire 
March 1, 1989 
Page 3

Since the Petitioners' Reply Brief Is due on March 7, 1989,
the Petitioners must have a reply by 3:00 p.m. on Friday, March 3 
as to whether the Respondents will agree to remove the Appendix 
and footnote 15 from their Brief. If we do not receive such a 
commitment, then we will have to respond to the Respondents’ use 
of this material In our Reply Brief.

I have had this letter sent by fax to David Carpenter (312- 
853-7312), Stephen J. Feinberg (312-263-1520), and Charles C. 
Jackson (312-269-8869) on March 2. A copy was also sent by 
Federal Express to each of these attorneys for delivery on March 
3. I also sent a copy, hand-delivered, to Robert Weinberg on 
March 2.

BG:oet 
Enclosure
cc: Robert Weinberg, Esquire

Charles C. Jackson, Esquire 
Richard J. Lazarus, Esquire 
Donna J. Brusoski, Esquire

Very truly yours

Barry Goldstein

312



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M « |H O  WILMA M I T t t l l
w b » o x , i c « »  i n ,  i x r u « n

a titirmx way•ihoahom ow>*>

Barry Goldstein, Esq.
NAACP Legal Defense and 
Educational Fund, Inc.

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005

Rei Loranee v. AT&T Technologies
No. 87-1428 (t).S. Supreme Court)

Dear Mr. Goldstein:
This Is a reply on behalf of both respondents to your 

letter of yesterday, March 2, 1989. We were surprised to learn 
both that you decided at this late date to review the BNA 
materials discussed in our brief (filed January 23, 1989) and 
that BNA denied you access to them. We have therefore telephoned 
BNA and consented to the release of any material which cannot be 
released without our consent. In addition, we are enclosing 
herewith the materials that BNA would not show you and that It 
provided us: (1) Its statement of research methodology and
results, (2) Its computer printout of the contracts, and (3) the 
table analysing contracts with departmental seniority. We are 
faxing this material to you today and are separately sending it 
Federal Express for delivery tomorrow.

We trust that this fully addresses your concerns on 
what should be a noncontroversial point: that departmental
seniority systems are commonplace.

Very truly yours,
(/J•*

David W. Carpenter

DWC:dsg
Enclosures
cc: Rex E. bee (w/o enclosures)

Charles C. Jackson (w/o enclosures) 
Stephen J. Feinberg (w/o enclosures) 
Robert M. Weinberg (w/o enclosures)

313



RESEARCH METHODOLOGY & RESULTS

BNA PLUS, the custom research and document retrieval division of The Bureau of 
National Affairs, Inc., surveyed collective bargaining agreements in BNA's sample file of 399 
contracts to determine the prevalence of departmental seniority provisions in collective 
bargaining contracts.

The Bureau of National Affairs, Inc. is a private, employee-owned publishing company 
specializing in labor, business, tax, legal, environment, and economic issues. BNA maintains a 
collection of more than 3,000 agreements, which b maintained primarily for the company’s 
Collective Bargaining Negotiations and Contracts service. The file also b  used for research 
purposes. The collection b  kept up to date with the latest contract renewals or amendments. 
Within the collection, a sample of approximately 400 contracts b  maintained with regard to a 
cross section of industries, unions, number of employees covered, and geographical areas. The 
sample b  the basb for the CBNC analysis of basic patterns in union contracts, conducted every 
three years.

To determine the prevalence of departmental seniority provbions by industry, BNA 
PLUS labor analysts researched the contracts in the sample database (a listing of the contracts, 
by industry, b  attached). One contract has been deleted from (the sample and one was unavail
able for examination. Of the 398 contracts examined, 359 (90 percent) contained language 
regarding seniority. For the purposes of thb research, as agreed. BNA PLUS included as depart
mental seniority those instances where seniority b  based on some subunit of the workforce 
(departments, sections, occupational groups, etc.) rather than length of service at a plant or with 
the company.

The project was coordinated by the BNA PLUS senior labor analyst, who has extensive 
experience in the labor area. In addition, the CBNC managing editor was available for consulta
tion. A summary of findings b  presented In the attached table.

Managing Editor, CBNC

Senior Labor Analyst, BNA PLUS

Copyright © 1009 by Th# 0urw u of National Artalra, Inc.

314



u | A  I  NAACP LEGAL DEFENSEJLil-FjL AND EDUCATIONAL FUND, INC.

ofr,
Suitr 301 
1275 K S« NW
W atliingion DC 20005 202/682-1300 Fa*: 202/682-1312

March 3, 1989

David W. Carpenter, Esquire 
Sidley t Austin 
One First National Plaza 
Chicago, IL 60603

RE: Lorsnce v. AT&T TechnologiesNo. 87-1428
Dear Mr. Carpenter:

I have received the letter dated March 3rd, from both 
respondents in response to my letter of March 2nd. The response 
does not address the concerns of the Petitioners.

For the reasons set forth in my letter of March 2, 1989, the 
outside-the-record material contained in the Respondents' Brief 
should be stricken.

In addition, the documents that you enclosed with the March 
3, 1989 letter inadequately describe the private project that
you sponsored. (Me will lodge these documents with the Supreme 
Court if the material is not removed from the Brief) . For 
example, the documents do not describe the seniority provisions 
from the contracts. All that is listed is the company name, 
industry, 'sic' code, and the expiration date for the contract.

This is particularly Important because these documents make 
clear that the chart contained in the Appendix to Respondents' Brief is mislabeled and misleading. The page listed as 'Research 
Methodology t Results' states as follows:

For the purpose of tills research, as agreed.BNA Plus included as departmental seniority those instances where seniority is based on 
some subunit of the workforce I departments■ 
sections, occupational groups, etsi,) rather than length of service at a plant or with the 
company. (Emphasis added)

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315



David W. Carpenter March 3, 1989 
Page 2

BNA Plus, 'the EUSjtfija research and documental retrieval 
division of The Bureau Of National Affaire, Inc.' apparently 
"flireed* with ATST Technologies to call departmental any measure or seniority, *department(al], sectionfal], occupational, etc.*

As is clear from the research methodology statement, BNA 
agreed to call any seniority system other than plant or company seniority a departmental seniority system.

On the basis of the research methodology statement, BNA Plus 
and the Respondents could as easily have called the less than 
plant seniority contracts 'sectional' or 'etc.' seniority contracts. 1

Moreover, the Record in this case does not indicate whether 
or not the seniority system developed in 1979, which counted 
seniority earned in non-tester jobs differently than seniority 
earned in tester jobs, should properly be classified as 
occupational,' 'departmental,' or 'sectional' seniority. The 
system appears more likely to be an 'occupational' system, that 
Is, one that distinguishes the tester occupations from other occupations, rather than a departmental system.

In any event, the critical point is that there is nothing in 
the documents provided by BNA that establishes any foundation for comparing the system in the Montgomery Works with those systems 
summarized in the chart included as an Appendix to the Respondents' Brief. At trial, the plaintiffs may show that the 
system adopted by the IBEW and ATST Technologies dividing the seniority in the plant and pitting one group of bargaining unit 
employees against another was an arbitrary and Irrational system unlike the vast majority of other contracts.

There is no information in the BNA 'sample' that is inconsistent with Petitioners' position. In fact, an analysis of 
the contracts evaluated by BNA (under the direction of the 
position" f°r ATST Technolo9ies> “»y establish the plaintiffs'

Finally, you should not be 'surprised' that we want to 
review the BNA material at this 'late date.' There is ne 
reference in the Respondents' Brief to the fact that this a 
customized' job done at the direction and by the 
specifications' set by ATST Technologies. Frankly, we never

316



David W. Carpenter March 3, 1989 
Page 3

would have thought that the Respondents sought to submit such 
outside-the-record material to the Supreme Court. Accordingly, 
we only checked the reference towards the end of the preparation of the Reply Brief.

For the reasons set forth in this letter and in the March 
2nd letter, the material prepared by BNA should be stricken from 
the Brief because it is improper outside-the-record evidence and 
because it is misleading and unreliable.

Very truly yours,

Barry Goldstein
BG: vyt
cc: Charles C. Jackson, Esquire

Robert M. Weinberg, Esquire 
Stephen J. Felnberg, ESquire

317



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BT TELECOPY
Barry Goldstein, Esq.
NAACP Legal Defense and 

Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005

Rei Lorance v. AT&T Technologies
No. 87-1428 (U.S. Supreme Court)

Dear Mr. Goldstein:
This Is the response of both respondents to your letter of March 

3, 1989. As we understand your objection to our use of BNA materials, It 
is that the chart Is "mislabeled" and "misleading" because It uses the 
term "departmental seniority" to refer to all seniority systems where 
seniority Is based on some subunit of the workforce a department,
a section, or an occupation) rather than length of service in the plant 
or with the company. We used the term departmental seniority system in 
this way because that phrase, In common parlance, encompasses all such 
systems. That is how the term was used, for example, In the other 
materials cited in our Brief (pp. 14-15 nn.15-16) to which you have not 
objected. In any event, It makes no difference whether such systems are 
called a "sectional" seniority system, an "occupational system," or a 
"group seniority" system. The point is that the materials in BNA's 
publlcly-accessible database shows that however these systems are 
denominated, seniority systems (like AT&T's) that measure seniority base 
on service in a subunit of a company are commonplace. That is the only 
point that any of the materials we cited in footnotes 15 and 16 was 
intended to make.

Please let us know if we can do anything else to address your
concerns.

Very truly yours,
J. Ca.David W. Carpenter

DWCidsg
cc: All Counsel

M A R  S  ’ 0 9  I 3 : 2 6
P A G E  . 002



No. 87-1428

In  T he
#n|tnnttr (Emtrt itf lljr  llttitfrii ^latrn

O ctober T e r m , 1988

P atricia A. Lorance, e t  a l ,
P e t i t io n e r s ,

v.

AT&T T echnologies, e t  a l ,
R e s p o n d e n ts .

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENTS

Robert E. Williams 
Douglas S. McDowell * 
Katrina Grider 

McGuiness & Williams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for the Amiens Curiae 
Equal Employment Advisory 
Council

* Counsel of Record

319



TABLE OF CONTENTS
Page

INTEREST OF THE AMICUS CURIAE........ ............ 2

STATEMENT OF THE CASE ......................................  3

SUMMARY OF ARGUMENT ...............................   7

ARGUMENT ....................................................................  10

TABLE OF AUTHORITIES............................................ ii

I. IN A TITLE VII CHALLENGE TO A FA
CIALLY NEUTRAL SENIORITY PLAN, THE 
STATUTE OF LIMITATIONS BEGINS TO 
RUN FROM THE TIME THE SENIORITY 
PLAN IS ADOPTED ................................ ............ 10
A. In Attacking The Adoption Of The Tester

Seniority System, Petitioners Must Base 
Their Claim On The Assertion That Events 
In 1979, Which Were Never Made The Sub
ject Of A Timely Charge, Were Unlawful.... 11

B. Petitioners May Not Evade Title VII’s Strin
gent Time Limits Merely By Characterizing 
Their Claim As A Continuing Violation.......  20

C. Enforcement Of The 180-day Statute Of
Limitations Is Necessary To Protect Em
ployers From The Burden Of Defending 
Stale Claims And To Effect Congress’ Intent 
That Title VII Not Be Used To Disrupt 
Legitimate Expectations Based on Seniority 
System s............ ................................................... 24

II. ALTERNATIVELY, PETITIONERS’ CLAIM 
IS BARRED BECAUSE IT WAS NOT 
TIMELY-FILED AFTER THEY BECAME 
SUBJECT TO THE TESTER SENIORITY 
SYSTEM AND AWARE OF ITS EFFECT ON 
TIIEIR RIGHTS ....................    26

CONCLUSION....................   or

320



i i

Cases:
TABLE OF AUTHORITIES

Page

American Tobacco Co. v. Patterson, 456 U.S. 63
(1982) .......................................................  3, 7, 15, 16

Bazemore v. Friday,------U.S. —-—, 106 S.Ct. 3000
(1986) ........ ....................................................... ....... 3,23

California Brewers Ass’n v. Bryant, 444 U.S. 596
(1980) ................ -.........................................  -3,17,18,19

Chardon v. Fernandez, 454 U.S. 6 (1981)..............  26
Delaware State College v. Ricks, 449 U.S. 249

(1980) . .........................................................3, 7,10, 24, 26
EEOC v. Commercial Office Products Co., ------

U .S .------, 108 S.Ct. 1666 (1988) ...... .................. 3
Electrical Workers v. Robbins & Meyers, Inc., 429

U.S. 229 (1976) ........... ..........-................................ 3
Griggs v. Duke Power Co., 401 U.S. 424 (1971)......  11
In t’l Bhd. of Teamsters v. United States, 431 U.S.

324 (1977).........   ...passim
Machinists Local Lodge No. lU2i v. NLRB, 362

U.S. 411 (1960)......................................8 ,9,20,21,22,23
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ....................-......................... .........................  11
Mohasco v. Silver, 447 U.S. 807 (1980)...................  3
Mull v. Arco Durethene Plastics, Inc., 784 F.2d 284

(7th Cir. 1986).........   28
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)..17, 18,19 
Pidlman-Standard v. Swint, 456 U.S. 273 (1982)..3,19, 20 
Serpe v. Four-Phase Systems, Inc., 718 F.2d 935

(9th Cir. 1983)..............................   26
Trans World Airlines v. Hardison, 432 U.S. 63

(1977) ____ ____ -...............................................  3,13
United Air Lines v. Evans, 431 U.S. 553 (1977). ...passim
United States v. Trucking Management, Inc., 662

F.2d36 (D.C. Cir. 1981) ..................................  13
Weibley v. Westinghouse Electric Corp., 683 F.

Supp. I l l  (E.D. Pa. 1988).............. .................— 10
Zipes v. Trans World Airlines, 455 U.S. 385 

(1982)

321



iii

Federal Statutes: Page
Title VII of the Civil Rights Act of 1954, as 

amended, 42 U.S.C. § 2000e et seq. ------- 2, 7, 8, 10, 13
Section 703(a), 42 U.S.C. § 2000e-2(a)............. 12
Section 703(h), 42 U.S.C. § 2000e-2(h)........... passim
Section 706(e), 42 U.S.C. § 2000e-5 (e ) ..........3, 6, 7,10

TABLE OF AUTHORITIES—Continued

322



In  T he
£>u;trrntr (Emtrt itf tljr Itttfrii ^tatrn

O ctober T e r m , 1988

No. 87-1428

Patricia A. L o r a n c e, e t  a l .,
P e t i t i o n e r s ,

v.

A T & T  T echnologies, e t  a l.,
R e s p o n d e n ts .

On W rit of Certiorari to the United States Court of Appeals 
for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENTS

This brief amicus curiae of the Equal Employment 
Advisory Council (EEAC) is respectfully submitted 
pursuant to the written consent of the named parties, 
and in support of the respondents.1

1 Letters of consent have been filed with the Clerk of the 
Court.

323



2

INTEREST OF THE AMICUS CURIAE

EEAC is a nationwide association of employers 
organized in 1976 to promote sound approaches to 
the elimination of employment discrimination. Its 
membership comprises a broad segment of the em
ployer community in the United States, including 
over 200 major corporations and several trade asso
ciations which themselves have hundreds of corporate 
members. Its Board of Directors is composed of ex
perts in labor and equal employment opportunity. 
Their combined experience gives EEAC a unique 
depth of understanding of the practical, as well as 
legal aspects of EEO policies and requirements.

As employers, EEAC’s members are subject to the 
provisions of Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C. § 2000e e t  se q ., and the 
other various federal orders and regulations pertain
ing to nondiscriminatory employment practices. Many 
are also subject to collectively-bargained or otherwise 
legitimately adopted seniority agreements. As such, 
EEAC members have a direct interest in the issues 
presented for the Court’s consideration in this case; 
that is, for purposes of determining the timeliness, 
within the statute of limitations under Title VII, of 
a challenge to a facially-neutral, collectively-bargained 
seniority system, does the alleged discriminatory act 
occur on the date the system was adopted, on the 
date employees become subject to the system, or on 
the date employees were demoted pursuant to the 
system’s operation.

As a significant part of its activities, EEAC has 
participated as amicus curiae in a number of cases 
before this Court and other circuits which involved 
specifically the interpretation of Title VII’s filing re-

324



3

quirement, Section 706(e), 42 U.S.C. § 2000e-5(e), 
the statutory provision of primary concern here. S e e  
Z ip e s  v . T r a n s  W o r ld  A ir l in e s , 455 U.S. 385 (1982); 
D e la w a r e  S t a t e  C o lle g e  v . R ic k s , 449 U.S. 249 
(1980); M o h a sc o  v . S i lv e r , 447 U.S. 807 (1980); 
U n ite d  A i r  L in e s  v . E v a n s , 431 U.S. 553 (1977). 
S e e  a lso  E E O C  v . C o m m e r c ia l  O ffice  P r o d u c ts  C o .,
------U .S .------- , 108 S.Ct. 1666 (1988). In addition,
EEAC has filed amicus briefs in other cases involv
ing an analysis of Title VII challenges to the main
tenance of allegedly discriminatory seniority systems.
B a z e m o r e  v . F r i d a y , ------  U.S. — —, 106 S.Ct. 3000
(1986); P id lm a n - S ta n d a r d  v . S w in t , 456 U.S. 273 
(1982); A m e r ic a n  T o b a c c o  C o. v . P a t te r s o n , 456 
U.S. 63 (1982); C a l i f o r n ia  B r e w e r s  A s s 'n  v . B r y a n t ,  
444 U.S. 596 (1980); I n t ' l  B h d . o f  T e a m s te r s  v . 
U n ite d  S t a t e s ,  431 U.S. 324 (1977); T r a n s  W o r ld  
A ir l in e s  v . H a r d is o n , 432 U.S. 63 (1977); and E le c 
t r i c a l  W o r k e r s  v . R o b b in s  <f M e y e r s ,  In c ., 429 U.S. 
229 (1976). Accordingly, because of the potentially 
enormous impact upon seniority systems and the 
rights and benefits accrued thereunder, this Court’s 
consideration of this case is of vital concern to 
EEAC’8 nationwide employer constituency, as well 
as to countless unions and employees subject to such 
systems.

STATEMENT OF THE CASE

Patricia A. Lorance, Janice M. King and Carol S. 
Beuschen, Petitioners, have been currently employed 
as hourly wage workers at the Montgomery Works 
facility of Respondent AT&T Technologies (“AT&T”) 
located in Aurora, Illinois.' (Pet. App. 4a). The 2

2 Ms. Lorance and Ms. Beuschen have been employed at 
AT&T since 1970, and Ms. Kinpr has been employed since 
1971. (Pet. App. 4a).

325



4

composition of the Montgomery Works labor force is 
approximately 75 percent female and 25 percent male. 
(R.68B at 117). Petitioners’ union representative is 
Respondent Local 1942, of the International Brother
hood of Electrical Workers, AFL-CIO ("Union”). 
Within the hourly wage job category are jobs called 
"tester” positions which collectively comprise the 
"tester universe.” (Pet. App. 4a). The tester jobs 
are among the highest paid hourly positions. (Pet. 
App. 4a). Historically, few women took the requisite 
courses and examination to become testers; conse
quently, most of the tester positions are occupied by 
men who either were directly hired into the position 
or who were promoted from the lower graded non
tester jobs. (J.A. 19 par. 12). As early as 1970, 
however, women increasingly became testers. By 
1978, approximately 15 women occupied positions as 
testers, and several others prepared to complete the 
entry-level requirements. (J.A. 19-20 par. 13).

Prior to 1979, Respondents utilized a plant-wide 
seniority system which governed all job promotions, 
downgrades and layoffs. (Pet. App. 4a). Seniority 
was thus determined by an employee’s total length of 
service. Application of the plant-wide seniority sys
tem created problems in the tester universe because 
those employees with seniority in the lower graded 
jobs were being promoted into the tester universe, at 
job grades higher than those who had more experi
ence as testers. (J.A. 21 par. 16) Thus, testers with 
little or no tester experience, but greater plant senior
ity, had seniority over those with greater tester ex
perience, but less plant-wide seniority. The end re
sult was that testers in higher graded jobs did not 
have the skills or experience necessary to perform

326



5

the jobs at a time when the positions demanded an 
increase in technical knowledge and skills.

In response to this problem, Respondents collec
tively bargained a modification to the seniority sys
tem known as the “tester concept.” * The tester con
cept assigned dual seniority dates to all new entrants 
into the tester universe, and these assignment dates 
governed all promotions and demotions within the 
tester universe.* 4 (Pet. App. 4a). Petitioner Lorance 
was a tester at the time the tester seniority plan was 
adopted in 1979, and Petitioners Beuschen and King 
became testers in 1980. (Pet. App. 5a).

In late 1982, Petitioners were demoted during a 
reduction-in-force pursuant to the seniority provisions 
in the tester concept. (Pet. App. 5a). They subse
quently filed EEOC charges alleging that their demo
tions had been unlawful under Title VII and that 
they would not have been demoted had the decision 
been based on plant-wide seniority. (Pet. App. 5a). 
In addition, Petitioners challenged the lawfulness of 
the seniority plan itself, even though the plan was 
adopted and they became subject to it more than 180 
days—indeed, from two to three years— b e fo r e  the

8 The tester concept was extensively discussed at union 
meetings. When the union held a special meeting to vote on 
the plan, all three Petitioners attended the meeting and voted 
against the plan. The tester concept plan was approved by 
a vote of 90 to 60, which reflected the approximate ratio of 
men to women in attendance at the meeting. (Pet. App. 5a).

4 Plant wide seniority continued to govern all other matters, 
including layoffs, benefits, and job assignments for nontester 
grades. (Pet. App. 4a). Employees could “bridge” their tester 
seniority and plant seniority either by completing five years 
of service in the tester universe or successfully competing a 
five part training program.

327



6

filing of their charges." The EEOC found no reason
able cause to believe that the allegations were true, 
and issued Petitioners right to sue letters. (Pet. 
App. 5a).

Petitioners pursued their action in district court 
and alleged in their complaint that the 1979 “change
over from plant seniority to tester seniority” was 
negotiated and adopted with discriminatory intent 
and constituted an “illegal” manipulative seniority 
system. The district court granted Respondents’ sum
mary judgment motion on the ground that Petition
ers’ claims were time-barred because they had failed 
to file their charges with the EEOC within Title 
VIPs applicable statute of limitations. S e e  Section 
706(e), 42 U.S.C. § 2000e-5(e). (Pet. App. 32a- 
33a). Specifically, the court held that the statute of 
limitations began to run at the time Petitioners knew 
or should have known that they had lost their plant 
wide seniority when they became testers. (Pet. App. 
26a, 32a). It concluded that Petitioners “sat on their 
rights,” and thus rejected their arguments that the 
time period ran from the date of their demotions in 
1982. (Pet. App. 25a-27a). The court, however, also 
rejected the magistrate’s determination that the stat
ute ran from the date the seniority plan was adopted 
in 1979. (Pet. App. 27a-31a). The district court

B Petitioners Lorance and Beuschen filed their EEOC charges 
on April 13, 1983, and Petitioner King filed her charge on 
April 21, 1983. (Pet. App. 18a). Respondents argued below 
that the 180-day rather than the 300-day limitations period 
applies in this case. The courts below, however, declined to 
address the issue and concluded that Petitioners’ charges were 
time-barred under either period. (Pet. App. fia n.2; 19a- 
20a n.3).

328



7

also found that Petitioners’ claims did not constitute 
a continuing violation under Title VII.

The Seventh Circuit affirmed and decided that the 
assignment of seniority status to an employee trig
gers the statute of limitations on challenging the 
seniority system, even if the system is only later 
used to demote or to deny the employee a promotion." 
It also affirmed the district court’s rejection of the 
argument that the adoption of a seniority system is 
the relevant act which triggers the statute of limita
tions.

SUMMARY OF ARGUMENT
1. To determine whether a Title VII action is 

barred as outside the limitations period of Section 
706(e), a court must first “identify precisely the 
‘unlawful employment practice’ of which [the charg
ing party] complain [s]” and determine when that 
practice occurred. D e la w a r e  S t a t e  C o lle g e  v . R ic k s , 
449 U.S. 250, 257 (1980). Where, as here, the com
plaint involves a seniority system, Section 703(h) 
comes into play in making these determinations. For 
under Section 703(h), the uniform application of a 
facially-neutral seniority system cannot in itself con
stitute a violation of Title VII simply because the 
system has a present impact on minorities or women 
or perpetuates the effects of past discrimination. 
E .g .,  A m e r ic a n  T o b a cco  C o. v . P a t te r s o n , 456 U.S. 
63 (1982); I n t ' l  B h d . o f  T e a m s te r s  v . U n i te d  S ta te s ,  
431 U.S. 324 (1977).

Implicitly recognizing these limiting effects of Sec
tion 703(h), Petitioners have based their complaint

8 The court of appeals denied petitioners petition for re
hearing and suggestion for rehearing en banc. (Pet. App. 
la-2a).

329



8

solely on the ground that AT&T’s o r ig in a l  a d o p t io n  
of Its tester seniority system was illegal. (J.A. 14, 
16).7 Thus, they have at least tacitly conceded that 
the system was facially neutral and was applied 
evenhandedly to men and women testers during the 
limitations period. They have failed, however, to ac
knowledge the logical consequence of their tacit con
cession—that is, that because the specific gravamen 
of their complaint is that the original adoption of 
the tester seniority system was illegal, the time for 
any challenges to the system began to run when it 
was adopted in 1979.

This Court has long recognized, in construing the 
filing-time requirements of Title VII and other fed
eral labor legislation, that where a finding of a vio
lation within the limitations period Is dependent on 
finding that some earlier action, completed before the 
limitations cutoff date, was unlawful, the action is 
barred. U n i te d  A i r  L in e s  v . E v a n s , 431 U.S. 553 
(1977); M a c h in is t s  L o c a l  L o d g e  N o . H 2 4  v . N L R B ,  
362 U.S. 411 (1960). These principles govern the 
case at bar.

Indeed, a reaffirmation of these settled principles 
is needed here, lest entire seniority systems through
out U.S. industry be rendered perpetually vulnerable 
to challenges under Title VII. Under the theory 
urged by Petitioners, any time a seniority system is 
applied to the disadvantage of any member of a class 
protected by Title VII, the system itself can be chal
lenged on the grounds that its adoption was illegally

7 Petitioners have conceded that the tester seniority system 
is neutral on its face, and they do not appear to dispute that 
it has been applied even handedly to men and women in the 
“tester universe” at all times since its adoption in 1979.

330



9

motivated, even if the adoption occurred years or 
decades earlier. Similarly, even under the slightly 
more restrictive view adopted by the Seventh Circuit 
in this case, whole seniority systems would be placed 
in perpetual jeopardy, because each employee newly 
entering a unit governed by a separate seniority sys
tem would have 180 (or 300) days in which to attack 
the system as illegal from its inception. Either ap
proach would severely undermine the congressional 
intent, reflected in Section 703(h), that Title VII not 
be used to disrupt the legitimate expectations of em
ployees based on neutral seniority systems.

Petitioners' efforts to circumvent these principles 
through reliance on a continuing violation theory are 
unavailing. To find a continuing violation, a court 
must be able to find that at least one action or occur
rence within the limitations period was, in and of 
itself, unlawful. E v a n s ,  431 U.S. at 558; M a c h in is ts ,  
362 U.S. at 416. Prior events can be used as back
ground evidence to shed light on the character of ac
tions within the limitations period, but where the 
court has to pass on the legality of some pre-limita
tions conduct in order to find a violation within the 
limitations period, the proceeding is barred. That is 
precisely the situation presented here. Hence, the 
continuing violation theory simply does not apply.

2. Alternatively, even apart from the implications 
of Section 703(h), Petitioners cannot prevail in this 
case, because they clearly sat on their rights long 
after they became subject to the tester seniority sys
tem and knew precisely how it affected their rights. 
Thus, even where seniority rights are not involved 
and a company practice may be challenged as dis
criminatory without reference to the legality of its

331



1 0

initial adoption, a charge is untimely if not filed 
within 180 days (or 300) days after the charging 
party knows or reasonably should know that the al
legedly discriminatory practice has occurred. In this 
case, the limitations period began to run, at the very 
latest, on the date when Petitioners were transferred 
into the tester unit and became subject to the system 
of which they now complain. As that date was far 
more than 180 (or 300) days before Petitioners filed 
their charge, their action is clearly time-barred in 
any event.

ARGUMENT
I. IN A TITLE YII CHALLENGE TO A FACIALLY 

NEUTRAL SENIORITY PLAN, THE STATUTE OF 
LIMITATIONS BEGINS TO RUN FROM THE TIME 
THE SENIORITY PLAN IS ADOPTED.

A prerequisite to initiating a suit for a violation of 
Title VII is the filing of a timely charge with the 
EEOC. A Title VII plaintiff must therefore file a 
discrimination charge with the EEOC within 180 
days of the “alleged unlawful employment practice.” 
Section 706(e), 42 U.S.C. § 2000e-5(e); se e  a lso  
D e la w a r e  S t a t e  C o lle g e  v .  R i c k s , 449 U.S. 250, 256 
(1980).8 The issue of when the cause of action ac
crues depends on when the alleged unlawful act oc
curred. It is necessary, therefore, to identify the un
lawful act. “Only then can the court separate the 
discriminatory act from the natural consequences 
flowing therefrom.” W e ib le y  v . W e s t in g h o a s e  E le c 
t r i c  C o r p ., 683 F. Supp. I l l ,  114 (E.D. Pa. 1988).

8 In those states which have a comparable law and proce
dures for handling similar civil rights complaints, that is, 
deferral states, the statute of limitations period is extended 
to 300 days for filing with the EEOC. Section 706(e), 42 
U.S.C. § 2000e-5 (e ).

332



11

This case involves a facially neutral seniority sys
tem which has been challenged by Petitioners as be
ing unlawfully adopted. The essence of the violation 
involves the circumstances which surrounded the ne
gotiation of the tester concept and its subsequent 
adoption. Therefore, the relevant act that triggered 
the running of the statute of limitations was the 
adoption of the tester seniority plan in 1979. Peti
tioners and their a m ic i  assert that the relevant act 
which triggered the running of the statute of limita
tions period was their demotions in 1982. These ar
guments, however, fail to make the necessary distinc
tion between an “act” and its “consequences.” For 
it is this distinction that is crucial to a determina
tion of timeliness under Title VII.

Petitioners’ demotions are merely the consequences 
of AT&T’s implementation of the tester seniority 
provisions pursuant to a reduction-in-force. The de
motions are not separate, independent acts which 
themselves trigger the limitations period; rather, 
the demotions are a function of the operation of the 
tester seniority system itself. The system thus was 
subject to challenge only when it was adopted, and 
Petitioners cannot now challenge its consequences or 
derivative effects.

A. In Attacking The Adoption Of The Tester Senior
ity System, Petitioners Must Uase Their Claim On 
The Assertion That Events In 1979, Which Were 
Never Made The Subject Of A Timely Charge, Were 
Unlawful.

When Congress enacted Title VII, it sought to as
sure equality of employment opportunities and to 
eliminate discriminatory employment practices. M c 
D o n n e ll  D o u g la s  C o r p . v . G r e e n , 411 U.S. 792, 800 
(1973); s e e  a ls o  G r ig g s  v . D u k e  P o w e r  C o ., 401 U.S.

333



1 2

424 (1971). Accordingly, Section 703(a), 42 IJ.S.C. 
§ 2000e-2(a), was designed to prohibit employment 
discrimination with respect to compensation, terms, 
conditions, or privileges of employment; and with 
respect to practices that limit, segregate, or classify 
in any way which would deprive or tend to deprive 
any individual of employment opportunities. 42 
U.S.C. § 2000e-2(a). However, Section 703(h), 42 
U.S.C. § 2000e-2(h), adopts a different standard for 
challenges to bona fide seniority systems, by provid
ing that,

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

This Court analyzed Section 703(h) in I n t ’l  B h d .  
o f  T e a m s te r s  v . U n i te d  S ta te s ,  431 U.S. 324 (1977). 
T e a m s te r s  involved a situation where minority em
ployees had been discriminatorily assigned upon hire 
to “city driving” jobs rather than to the higher pay
ing over the road “line driving” jobs. Among the 
claims argued by the government was that the sen
iority system adopted by the company and the Team
sters was unlawful in that it perpetuated these 
discriminatory assignments. These claims arose from 
the fact that the city driving jobs and the line driv
ing jobs were in separate bargaining units, and that 
an employee who transferred from one to the other 
could not bring with him his accumulated seniority. 
The Court, however, rejected the government’s posi
tion and held:

334



1 3

[A]n otherwise neutral, legitimate seniority sys
tem does not become unlawful under Title VII 
simply because it may perpetuate pre-Act dis
crimination. Congress did not intend to make it 
illegal for employees with vested seniority rights 
to continue to exercise those rights, even at the 
expense of pre-Act discriminatees.

Id . at 353-54.
The Court observed that the unmistakable purpose 

of Section 703(h) was to make it clear that the rou
tine nondiscriminatory application of a seniority 
system would not be unlawful under Title VII. I d .  
at 352-53; s e e  T r a n s  W o r ld  A ir l in e s ,  In c . v . H a r d i 
so n , 432 U.S. 63, 82 (1977); U n ite d  S t a t e s  v . T r u c k 
in g  M a n a g e m e n t ,  In c ., 662 F.2d 36, 44 (D.C. Cir. 
1981) ( “The T e a m s te r s  Court read the legislative 
history of Title VII as revealing plain congressional 
intent to p r o te c t  s e n io r i t y  r ig h t s ,  so long as those 
rights are preserved by a ‘bona fide’ seniority sys
tem.”) (emphasis in original).

Furthermore, this Court expressly found that Sec
tion 703(h) applied to all types of seniority systems, 
including departmental systems.

In addition, there is no reason to suppose that 
Congress intended in 1964 to extend less protec
tion to legitimate departmental seniority systems 
than to plant wide systems. Then as now, senior
ity was measured in a number of ways, includ
ing length of time with the employer, in a par
ticular plant, in a department, in a job, or in a 
line of progression . . . The legislative history 
contains no suggestion that any one system was 
preferred.

Id . at 355 n.41.

335



1 4

On the same day, the Court in U n i te d  A i r  L in e s  v . 
E vans, 431 U.S. 553 (1977), concluded that a dis
criminatory act which is not made the basis of a 
timely EEOC charge has no legal significance, other 
than as background evidence. Evans was employed 
by United as a flight attendant from November 1966 
to February 1968, at which time she married and 
was forced to resign because United maintained a 
policy of refusing to allow its female flight atten
dants to be married. The policy was subsequently 
found to be in violation of Title VII. Evans was re
hired in 1972, and in 1973 filed Title VII charges 
claiming that United had committed an unlawful em
ployment practice by refusing to credit her with 
seniority for any period prior to February 1972. No 
charge had been filed with the EEOC within the ap
propriate time period after plaintiff was forced to 
resign in 1968. The Court considered whether 
United had committed a violation of Title VII by 
refusing to credit Evans with seniority for any 
period prior to February 1972, and stated:

[Al] challenge to a neutral system may not be 
predicated on the mere fact that a past event 
which has no present legal significance has af
fected the calculation of seniority credit, even if 
the past event might at one time have justified a 
valid claim against the employer. A contrary 
view would substitute a claim for seniority credit 
for almost every claim which is barred by limita
tions. Such a result would contravene the man
date of § 703(h).

I d . at 560.
Writing for the Court in T e a m s te r s ,  Justice Stew

art commented further that,

336



1 5

E v a n s  holds that the operation of a seniority 
system is not unlawful under Title VII even 
though it perpetuates post-Act discrimination 
that has not been the subject of a timely charge 
by the discriminatee. Here, of course, the Gov
ernment has sued to remedy the post-Act discrim
ination directly, and there is no claim that any 
relief would be time-barred. But this is simply 
a n  a d d i t io n a l  r e a s o n  n o t  to  h o ld  th e  s e n io r i ty  
s y s t e m  u n la w f u l ,  since such a holding would in 
no way enlarge the relief to be awarded.

T e a m s te r s ,  431 U.S. at 348 n.30 (emphasis added) 
(citations omitted). E v a n s  thus developed the T e a m 
s t e r s  rationale further and teaches that if no timely 
charge is filed concerning the initial job assignment, 
employees are precluded by Section 703(h) from 
challenging the perpetuating effects of a seniority 
system.

Finally, in A m e r ic a n  T o b a c c o  C o. v . P a t te r s o n ,  
456 U.S. 63 (1982), the Court addressed the issue 
of whether Section 703(h) applied to post-Act 
adopted seniority systems or whether it was designed 
to protect only those systems that were adopted be
fore the effective date of Title VII in 1965. The 
Court agreed with the argument of the Petitioners 
in that case that “the plain language of § 703(h) 
applie[d] to post-Act as well as pre-Act seniority 
systems,” and it rejected EEOC’s contention that 
“§ 703(h) . . . protected] the post-Act a p p l ic a t io n  
of a bona fide seniority system but not the post-Act 
a d o p t io n  of a seniority system or an aspect of a sen
iority system.” Id . at 68.

In the Court’s view, “[t]he EEOC’s reading of 
§ 703(h) would make it illegal to adopt, and in prae-

337



1 6

tice to apply, seniority systems that fall within the 
class of systems protected by the provision . . . 
Consistent with its prior decisions which “emphasize 
that ‘seniority systems are afforded special treatment 
under Title VII itself,’ ” the Court concluded:

Thus taken together, T e a m s te r s  and E v a n s  stand 
for the proposition stated in T e a m s te r s  that 
‘[si]ection 703(h) on its face immunizes a ll bona 
fide seniority systems, and does not distinguish 
between the perpetuation of pre- and post-Act 
discriminatory impact. . . . Section 703(h) makes 
no distinction between seniority systems adopted 
before its effective date and those adopted after 
its effective date. Consistent with our prior de
cisions, we decline respondents’ invitation to read 
such a distinction into the statute.

I d . at 75-76 (citations and footnote omitted).
The theories which govern the application of the 

Section 703(h) exemption and which were developed 
in these decisions are particularly applicable in this 
case. Because of Section 703(h), Petitioners are lim
ited in the grounds on which they can attack the 
tester seniority system. They cannot contend that its 
current application has adverse impact. They cannot 
argue that it is illegal because it perpetuates the 
effects of past discrimination. They are not able, on 
the facts of this case, to contend that the system 
was administered and maintained with a discrimina
tory motive during the limitations period.

Petitioners are forced, therefore, to focus their 
challenge entirely on the adoption of the tester sen
iority plan and to contend that the seniority system

338



1 7

itself is unlawful because AT&T acted with unlaw
ful motives in 1979. Thus, the precise “unlawful 
employment practice’’ of which Petitioners complain 
occurred, if at all, entirely in 1979. Unless the adop
tion of the system is found illegal, its application to 
Petitioners cannot be found illegal. And because the 
adoption was not made the subject of a timely 
charge, it is a mere “past event which has no present 
legal significance,” E v a n s ,  431 U.S. at 500, and can
not be a basis for finding a current violation.

Petitioners attempt to distinguish E v a n s  on the 
ground that the plaintiff there “did not assert that 
the seniority system itself was illegal hut merely 
that the system perpetuated the effects of the illegal 
policy of forced termination which the company no 
longer applied.” (Pet. Br. at 40). The distinction 
does not wash, however. T e a m s te r s  and E v a n s  apply 
and govern the precise fact situation in this case— 
that is, an instance where employees have challenged 
the current application of a facially neutral seniority 
system based solely on a contention that an event 
occurring years earlier was unlawful. But, as the 
event in question—here the adoption of the system— 
was never made the subject of a timely charge, it is 
precisely the sort of time-barred allegation to which 
the Court was referring in E v a n s .

Furthermore, Petitioners’ reliance upon C a l i f o r n ia  
B r e w e r s  A s s ’n  v . B r y a n t ,  444 U.S. 596 (1980), and 
N a s h v i l le  G a s  C o . v . S a t t y ,  434 U.S. 136 (1977), is 
misplaced. While this Court addressed Section 
703(h) in C a l i fo r n ia  B r e w e r s ,  that decision merely 
determined that certain provisions of a collective bar
gaining agreement constituted a seniority system. 
The opinion focused on w h a t  constituted a seniority

339



18

system, rather than w h e n  a seniority system should 
be challenged. The Court broadly defined the term 
“seniority” in order to arrive at a workable defini
tion of its meaning and to give it the fullest possible 
application under Section 703(h). 444 U.S. at 605. 
Thus, C a l i f o r n ia  B r e w e r s  supports the Respondents, 
not the Petitioners in the instant case.®

Similarly, Petitioners erroneously rely upon this 
Court’s decision in N a s h v i l le  G a s  C o. v . S a t t y ,  434 
U.S. 136 (1977). S a t t y  involved an employer’s pol
icy of denying accumulated seniority to employees 
returning from pregnancy leave but not to employees 
returning from other types of disabilities. While the 
majority of the Court commented that the policy “ap
pear [ed]” on its face to be sex-neutral, the Court 
went on to find that the policy presently discrim
inated against women as a class, because only women 
become disabled because of pregnancy. I d . at 141-43. 
The motivation for the adoption of the policy was not 
an issue, and the Court was not required to consider 
the legality of any conduct pre-dating the statute of 
limitations period. 9

9 Moreover, unlike the plaintiffs in California Brewers, 
Petitioners here have not challenged whether the assignment 
of dual seniority dates for testers is a “seniority system” or 
“part of a seniority system” within the meaning of Section 
703(h). See California Brewers, 444 U.S. at 601. Indeed, they 
concede that this is a seniority case. Yet, Petitioners rely on 
that case for the general proposition that “workers may chal
lenge as an unlawful employment practice the operation of 
long-established seniority system.” (Pet. Br. at 37). California 
Brewers, though, does not in any way diminish the necessity 
for a timely claim and a showing, under Teamsters and Evans, 
that the challenged seniority system is a result of intentional 
discrimination. 444 U.S. at fill.

340



19

Petitioners argue that the Seventh Circuit’s hold
ing would have precluded the plaintiffs in C a l i fo r n ia  
B r e w e r s  and S a t t y  from ever challenging the opera
tion of the seniority system. This argument misses 
the mark, however, because: 1) neither case involved 
a Section 703(h) challenge to a seniority system; 
2) neither case involved an interpretation of the fil- 
ing requirements under Title VIPs statute of limita
tions; and 3) S a t t y  is a disparate impact rather than 
a disparate treatment case.

Finally, contrary to Petitioners’ claims, T e a m s te r s  
and P u l lm a n - S ta n d a r d  v . S w in t ,  450 U.S. 273 
(1982), do not support their theories, but underscore 
that Petitioners’ complaint in this case is untimely. 
There was no statute of limitations issue in T e a m 
s t e r s  because the operation of the seniority system 
had to be conceded to be lawful once the Court held 
that systems are valid under Section 703(h) even 
if they perpetuate the effects of past discrimination. 
The Court went on to observe that the system was 
protected by Section 703(h) because it applied 
equally to all races, that the placement of line drivers 
in a separate bargaining unit was rationale and in 
accord with NLRB precedents, and that the system 
did not have its genesis in racial discrimination and 
was negotiated and maintained free from any illegal 
purposes. T e a m s te r s ,  431 U.S. at 355-56; se e  E v a m ,  
431 U.S. at 560.

In S w in t ,  the plaintiff challenged the legality of a 
seniority system under Section 703(h). Again, no 
statute of limitations issue was raised because there, 
unlike here, the plaintiffs contended that the system 
had been adopted, maintained and administered with 
racially discriminatory purposes over a 35-year

341



20

period that extended the limitations period. There, 
the Court reversed the Court of Appeals’ holding that 
the “totality of the circumstances in the development 
and maintenance of the system showed that the sys
tem was intentionally discriminatory in violation of 
Section 703(h).” 10 This Court reversed because the 
appellate court had applied an erroneous standard of 
review of the district court’s factual findings.

B. Petitioners May Not Evade Title VIPs Stringent 
Time Limits Merely By Characterizing Their Claim 
As A Continuing Violation.

Petitioners attempt to evade the mandates of this 
Court’s prior decisions by characterizing their claim 
as a “continuing violation.” However, to find a con
tinuing violation, a court must be able to find that 
at least one action or occurrence within the limita
tions period was, in and of itself, unlawful. S e e  
M a c h in is t s  L o c a l L o d g e  N o . lJf2Jf v . N L R B ,  362 U.S. 
411, 416 (1960). Prior events can be used as back
ground evidence to shed light on the character of

10 The court of appeals had focused on four factors in 
assessing the lawfulness of the system:

First, a court must determine whether the system ‘oper
ates to discourage all employees equally from transferring 
between seniority units’ . . . .  Second, a court must exam
ine the rationality of the departmental structure, upon 
which the seniority system relies, in light of the general 
industry practice. . . . Third, a court had to consider 
‘whether the seniority system had its genesis in racial 
discrimination,’ . . .  by which it meant the relationship 
between the system and other racially discriminatory 
practices. . . . Finally, a court must consider ‘whether 
the system was negotiated and maintained free from any 
illegal purpose.’

Sivint, 456 U.S. at 279-81 (citations omitted).

342



21

actions within the limitations period, hut where the 
court has to pass on the legality of some pre
limitations conduct in order to find a violation within 
the limitations period, the proceeding is barred. 
Petitioners’ continuing violation claim falls into pre
cisely this situation, and was specifically rejected in 
M a c h in is t s  and E v a n s .  In M a c h in is ts , the Court 
noted that “[the] collective bargaining agreement 
and its enforcement are both perfectly lawful on the 
face of things,” and that an unlawful act “cannot be 
made out except by reliance on the fact of the agree
ment’s original unlawful execution, an event which, 
because of limitations, cannot itself be made the 
subject” of a timely complaint. I d . at 419. The 
Court concluded:

[T]he vice in the enforcement of this agreement 
is manifestly not independent of the legality of 
its execution, as would be the case, for example, 
with an agreement invalid on its face or with one 
validly executed, but unlawfully administered 
. . . .  I n  a n y  r e a l  s e n s e , th e n , th e  c o m p la in ts  in  
th is  c a se  a r e  ‘based, u p o n ’ th e  u n la w f u l  e x e c u tio n  
o f  th e  a g r e e m e n t ,  f o r  i t s  e n f o r c e m e n t,  th o u g h  
c o n t in u in g , is  a  c o n t in u in g  v io la t io n  s o le ly  b y  
r e a s o n  o f  c ir c u m s ta n c e s  e x is t in g  o n ly  a t  th e  d a te  
o f  e x e c u tio n . To justify reliance on those cir
cumstances on the ground that the maintenance 
in effect of the agreement is a continuing viola
tion is to support a lifting of the limitations bar 
by a characterization which becomes apt only 
when that bar has already been lifted. Put an
other way, if the [statute of limitations provi
sions of the National Labor Relations Act, 29 
U.S.C. § 160(b)'] is to be given effect, the en
forcement, as distinguished from the execution, 
of such an agreement as this constitutes a su a b le

343



22

unfair labor practice only for six months follow
ing the making of the agreement.

Id . at 423 (emphasis added in part). Furthermore, 
in E v a n s ,  the Court stated:

[A1] discriminatory act which is not made the 
basis for a timely charge is the legal equivalent 
of a discriminatory act which occurred before the 
statute was passed . . . Respondent emphasizes 
the fact that she has alleged a c o n t in u in g  viola
tion. United’s seniority system does indeed have 
a continuing impact on her pay and fringe bene
fits. But the emphasis should not be placed on 
mere continuity; the critical question in whether 
any present v io la t io n  exists. . . .

I d . at 558 (emphasis in original).
The tester seniority system is nondiscriminatory 

on its face and as applied. Thus, Petitioners’ claim 
that the application of the system to them was illegally 
discriminatory necessarily requires the court to find 
that a violation of Title VII occurred when the sys
tem was adopted in 1979—i .e . , more than 180 (or 
300) days before any charge was filed. Since no 
claim was asserted within that limitations period, 
Petitioners not only are barred from challenging the 
system outside of the limitations period, but also are 
precluded from making a continuing violation claim.

Petitioners’ collateral argument that the demotions 
which resulted from the operation of the seniority 
system are each a continuing violation is also ground
less. At best, Petitioners have only shown that their 
demotions are merely continuing e f fe c ts  of p a s t  
rather than p r e s e n t  discriminatory acts. They ap
pear to concede that since the seniority plan was

344



23

adopted, it has been maintained and equally applied 
to all employees regardless of sex. That being true, 
their demotions are a function of the operation of an 
admittedly facially neutral system. In short, there 
are no present discriminatory acts here, only allega
tions concerning the effect of a past act. Under 
E v a n s  and M a c h in is t s , such allegations are now 
time-barred and are no longer of any legal signifi
cance. Petitioners also have failed to allege any other 
conduct which would indicate that AT&T engages in 
c u r r e n t  discriminatory practices based on sex.

It is for these reasons that Petitioners’ reliance
upon B a z e m o r e  v . F r id a y ,  ——  U.S. ------, 106 S.Ct.
3000 (1986), is misplaced. In B a z e m o r e , the Court 
concluded that salary scales based on proven pat
terns of current diserimintory treatment ( i .e . , cur
rently paying blacks less than whites for performing 
the same jobs) must be eliminated. It further held 
that a difference in salary between racial groups 
cannot be justified by the simple fact that the cur
rent salary is product of past or illegal discrimin- 
tion. B a z e m o r e  is distinguishable on several grounds. 
First, the timeliness of the plaintiffs’ charges was not 
at issue. Second, the challenged salary disparities 
fell squarely within the scope of a “continuing viola
tion” because the salary system was not neutral on 
its face, but rather constituted a c u r r e n t  “pattern 
or practice” of race-based discrimination which 
treated “similarly situated” blacks and whites dif
ferently and which “continued” into the filing period. 
I d . at 3006. B a z e m o r e  does not support Petitioners’ 
argument and is further distinguishable from E v a n s  
because the B a z e m o r e  defendants were engaged in a 
“present violation.” E v a n s , 431 U.S. at 558; B a z e 
m o r e , 106 S.Ct. at 3007 n.6 (the court emphasized

345



24

that “[b]ecause the employer in [ E v a n s ]  was not 
engaged in discriminatory practices at the time the 
respondent . . . bought suit, there simply was no vio
lation of Title VII.”).

C. Enforcement Of The 180-day Statute Of Limitations 
Is Necessary To Protect Employers From The Bur
den Of Defending Stale Claims And To Effect Con
gress’ Intent That Title VII Not Be Used To Dis
rupt Legitimate Expectations Based on Seniority 
Systems.

Under Petitioners’ theory, seniority systems would 
constantly remain vulnerable to attack based on acts 
which occurred long before the fding of EEOC 
charges. Such a result, however, is inconsistent with 
this Court’s decision in D e la w a r e  S t a t e  C o lle g e  v . 
R ic k s , 449 U.S. 249 (1980). In R ic k s , the Court 
explained the dual purpose of the limitations periods 
applicable to the civil rights laws:

The limitations periods, while guaranteeing the 
protection of the civil rights laws to those who 
promptly assert their rights, also protect em
ployers from the burden of defending claims aris
ing from employment decisions that are long 
past.

I d . at 256-57. This Court has thus emphasized the 
congressional intent to limit an employer’s liability 
for stale claims.

Important policy considerations support strict en
forcement of the statute of limitations in Title VII 
cases generally. It protects employers from having 
to produce, many years subsequent to the occurrence 
of an unlawful employment practice, witnesses and 
documents that may well no longer he available. The 
concern for avoiding stale claims is especially pro-

346



25

nounced in the context of civil rights and employ
ment actions, where the intent with which an alleged 
discriminatory action was taken is often of para
mount significance to a determination of liability.

In the context of this case, these policies of repose 
take on an even greater significance in light of the 
congressional concern, reflected in Section 703(h), 
that Title VII not be used to disrupt employees’ legiti
mate expectations based on facially-valid, collectively 
bargained seniority systems. The security and pre
dictability that are the r a is o n  d 'e t r e  for seniority 
systems would be severely undermined if such sys
tems are made perpetually subject to attack on the 
grounds that their initial adoption was improperly 
motivated, no matter how many years have elapsed 
nor how many employees have relied on the system 
in the interim. Yet that would be the inescapable 
consequence of adopting Petitioners’ argument in this 
case. That is, if every application of a seniority sys
tem that results in a layoff, demotion or transfer 
triggers a new period of 180 (or 300) days in which 
the legality of the system’s original adoption can be 
reopened and litigated, every seniority system will 
in practical effect be rendered perpetually vulner
able, and the security and stability which employers, 
unions and employees seek to derive from negotiating 
seniority rights will be illusory.1’ 11

11 The same unfortunate result would follow from the 
rationale adopted by the Seventh Circuit in this case, as it 
would effectively grant each new entrant into a unit governed 
by a separate seniority system a period of time in which to 
challenge the system, litigate the motives with which it was 
originally negotiated, and seek to have the entire system set 
aside, no matter how long it had been in place.

347



26

II. ALTERNATIVELY, PETITIONERS’ CLAIM IS 
BARRED BECAUSE IT WAS NOT TIMELY-FILEI) 
AFTER THEY BECAME SUBJECT TO THE 
TESTER SENIORITY SYSTEM AND AWARE OF 
ITS EFFECT ON THEIR RIGHTS.

Even where seniority rights are not involved, this 
Court has consistently held that a charging party 
must, at the very least, file within 180 (or 300) days 
after he or she is notified of an adverse employment 
decision. D e la w a r e  S t a t e  C o lle g e  v . R ic k s , 449 U.S. 
250 (1980); a c c o r d  C h a r d o n  v . F e r n a n d e z , 454 U.S. 
6 (1981). Though the adverse effects of the decision 
may not actually take place until later, the time is 
measured not from when the employee is affected, but 
from when the employee le a r n s  of the discriminatory 
acts. In R ic k s , the Court held that the limitations 
period ran not from when the plaintiff-professor was 
terminated, but from when he was notified of the de
cision to deny him tenure. In U n i te d  A i r  L in e s  v . 
E v a n s , 431 U.S. 553 (1977), the time ran from the 
date of the plaintiff’s original termination pursuant 
to the “no-marriage” policy; once that was done, the 
implementation of the decision in another employ
ment action was not a separate discriminatory act. 
The focus is therefore on “what event, in fairness and 
logic, should have alerted a lay person to act to pro
tect his or her right[s] when he [or she] should have 
perceived discrimination occurring.” S e r p e  v . F o u r -  
P h a s e  S y s te m s ,  In c ., 718 F.2d 935, 938 (9th Cir. 
1983).

Here, at a minimum, Petitioners were fully aware 
that their seniority rights would be affected as early 
as 1979 when the union conducted meetings to dis-

348



27
cuss the proposed modifications.15 At the very least, 
they knew the day they became testers that they 
would be required to forfeit their plant-wide senior
ity. Petitioner Beuschen testified that they lost the 
right to exercise plant seniority for transfers and 
promotions “the day we went into testing.” (Beus
chen Dep. 39, 40). Each of the Petitioners also knew 
that she could “bridge” her seniority by completing 
the five part training course, because each embarked 
on the training program. It cannot be said then, that 
Petitioners were unaware of Respondents’ actions, or 
that they did not know the extent to which the sys
tem would affect them, or that they did not know that, 
at some point, they would ultimately be subject to 
the system.

In these circumstances, even apart from the effect 
of Section 703(h), Petitioners clearly waited too long 
before asserting their claims. Indeed, it would be an 
anomalous situation if, after Petitioners had unequiv
ocal and unambiguous notice that their seniority 
would be forfeited when they became testers, they 
could “sit on their rights” for years and then raise 12

12 At the final meeting, each of the Petitioners attended 
and voted against the tester concept. (Pet. App. 5a). Fur
thermore, Petitioners’ deposition testimony indicates that they 
objected to the adoption of the tester plan in 1979. Petitioner 
King stated, “ [ajlready by this time [in 1979] I had made 
the decision in my mind that what was going on was illegal 
and that I was going to continue my schooling, get my job 
and stick to my guns and let a court decide what was right or 
wrong.” (King Dep. 22, 146). Petitioner Lorance voted 
against the tester concept plan because, in her words, “I have 
worked for this company a long time and I think my time 
should be recognized.” (Lorance Dep. 93-98). Thus, Petition
ers objected to the seniority system, yet failed to assert a 
timely challenge to its lawfulness.

349



28
challenges to the lawfulness of a concededly facially 
neutral seniority system. As the Seventh Circuit has 
observed:

Indeed there are no policy grounds that would 
support tolling the running of the fding period 
beyond the point at which the employee is aware 
that the alleged discriminatory action has oc
curred. Once the employee knows of the termi
nation, he has ample time in which to commence 
an action for relief. This remains true in even 
if the form of the notice is not in accordance with 
the employer’s standard policy.

M u ll v . A rc o  D u re th e n e  P la c tic s , In c., 784 F.2d 284, 
291 (7th Cir. 1986). Thus, at a minimum, Petition
ers claims are time-barred because they waited much 
more than 180 (or 300) days after they became sub
ject to the seniority system to fde their EEOC 
charges.

CONCLUSION
For the foregoing reasons, EEAC respectfully 

urges that the Petitioners’ claims are time-barred 
and the judgment of the court of appeals should be 
affirmed.

Respectfully submitted,

Robert E. Williams
Douglas S. McDowell *
Katrina Grider 

McGuiness & Williams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for the Amiens Curiae 
Equal Employment Advisory 
Council

January 26, 1989 * Counsel of Record

350



No. 87-1428

i t t  tlje S u p rem e C ourt of tfje ©m'teb g>tateg
O ctober T erm, 1988

P atricia A. Lorance, et al., petitioners

v .

AT&T T echnologies, Inc., et al.

ON W R IT  OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS  

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE SUPPORTING PETITIONERS

C h a r le s  F ried  
Solicitor General

Do n a ld  B. A yer  
Deputy Solicitor General

R ic h a r d  J. L a zaru s  
Assistant to the Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202/ 633-2217

CHARLES A. SHANOR 
General Counsel

G w en do lyn  Y oung R eams 
Associate General Counsel

V in c en t  J. B lackw o o d  
Assistant General Counsel

Donna J. B rusoski 
A tlorney
Equal Employment Opportunity 
Commission

Washington, D.C. 20507

351



QUESTION PRESENTED
Whether in the case of an employment discrimination 

charge alleging that the complainant was demoted pur
suant to a seniority system that was adopted for a 
discriminatory purpose and continues to operate with 
discriminatory effect, the limitations period established by 
Section 706(e) of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-5(e), begins to run when the employee is 
first notified of the demotion, rather than when the 
employer first adopted the seniority system or when the 
employee first became subject to it.

(!)

352



TABLE OF CONTENTS
P a g e

Interest of Amici C u r ia e ...................................    I
Statement ...........................................................................................  2
Summary of a rg u m en t ...................................................................... 7
Argument:

In a Title VII challenge to the application of an allegedly 
discriminatory seniority system, the “unlawfully employ
ment practice” that triggers the commencement of Section 
706(e)'s limitations period occurs on the date the employer 
applies the seniority system to the employee and not on the
date the employer adopted the system or the employee first 
became subject to the system ................................................... 9

A. The limitations period for filing a Title VII
charge commences each time a discriminatory 
policy is used to make an employment deci
sion ............................................................................  10

B. Challenges to the application of discriminatorily
motivated seniority systems are not governed by 
more restrictive statute of limitations principles 
under Title V I I .........................................................  17

C. Commencement of the limitations period before
the challenged seniority system is applied and in
jures the employee would frustrate Title VII’s 
purposes and lead to absurd resu lts ....................... 22

Conclusion ......................................................................................... 25

TABLE OF AUTHORITIES

Cases:
Abrams v. Baylor College of Medicine, 805 F.2d 528 (5lh

Cir. 1986)................................................................................  14
American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) . 1 8 ,  19,

21, 23
Association Against Discrimination in Employment,

Inc. v. City o f Bridgeport, 647 F.2d 256 (2d Cir. 1981), 
cert, denied, 455 U.S. 988 (1982)......................................  14

(III)

353



IV

Bartelt v. Berlitz School o f  Languages o f  America, Inc.,
698 F.2d 1003 (9th Cir.). cert, denied, 464 U S. 915
(1983)...................................................................................... 14

Bazemore v. Friday, 478 U.S. 385 (1986).............................  10, 15
Chardon v. Fernandez, 454 U.S. 6 (19 8 1 ) ...........................  17
Cook v. Fan American World Airways, Inc., 771 F.2d 

635 (2d Cir. 1985), cert, denied, 474 U.S. 1109
(1986)...................................................................................... 14

Connecticut v. Teal, 457 U.S. 440 (1982).............................  22
Crosland v. Charlotte Eye & Ear & Throat Hospital,

686 F.2d 208 (4th Cir. 1982)..............................................  14
Delaware State College v. Ricks, 449 U.S. 250 (1980) . . . .  7, 10,

14, 15, 16, 17, 23
EEOC  v. Commercial Office Products Co., No. 86-1696

(May 16, 1988).....................................................................  9
EEOC  v. O'Grady, No. 87-1996 (7th Cir. Sept. 12,

1988) ........................................................................................   13
EEOC  v. Westinghouse Electric Corp., 725 F.2d 211 (3d

Cir. 1983), cert, denied, 469 U.S. 820(1984)...................    14
Florida v. Long, No. 86-1685 (June 23, 1988)..................... 14
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ............................................................................... 11, 20, 25
Furr v. A T & T  Technologies, Inc., 824 F.2d 1537 (10th

Cir. 1987)....................................................................................  14
Griggs v. Duke Power Co., 401 U.S. 424 (1971)................. 24
Gross v. United States, 676 F.2d 295 (8th Cir. 1982) . . . . .  13
Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

392 U.S. 481 (1968).................................................................  13
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) . . .  12
Heiar v. Crawford County, 746 F.2d 1190 (7th Cir.

1984), cert, denied, 472 U.S. 1027 (1985)..................... .. . 17
International Ass'n o f  Machinists v. NLRB, 362 U.S. 411

( I9 6 0 ) .....................................................................................  19, 20
International Brotherhood o f  Teamsters v. United States,

431 U.S. 324 (1977)................................................  19, 20, 21, 24
Johnson v. General Electric, 840 F.2d 132 (1st Cir.

1988) .....................................................................................  13, 14
McKenzie v. Sawyer, 684 F.2d 62 (D C. Cir. 1982)..........  14
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978), 

cert, denied, 441 U.S. 906 (1979).....................................  14

C a s e s  — C o n t in u e d :  P a g e

354



V

Patterson v, American Tobacco Co., 634 F.2d 744 (4th
Cir. 1980), vacated, 456 U.S. 63 (1982)...........................  14

Pullman-Standard v. Swint, 456 U.S. 273 (1982)........  18, 19, 24
Satz v. IT T  Fin. Corp., 619 F.2d 738 (8th Cir. 1980)........  14
United A ir Lines, Inc. v. Evans, 431 U .S. 553 (1977)........  7, 14,

15, 16, 21, 22
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.),

cert, denied, 459 U.S. 971 (1982)..................................... 14
Zenith Radio Corp. v. Hazel tine Research Inc., 401

U.S. 321 (1971)......................................................................  13

Statutes:

Age Discrimination in Employment Act of 1967, 29
U.S.C. 621 et seq ..................................................................... 13-14

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq .......................................................................................... 1 .3

§ 703(a), 42 U.S.C. 2000e 2 ( a ) ......................................  19
§ 703(h), 42 U.S.C. 2000e-2(h)....................................7, 8, 18,

19, 20, 21, 24
§ 706(a), 42 U.S.C. 2000e-5(a)......................................  I
§ 706(e), 42 U.S.C. 2000e-5(e)....................................... passim
§ 706(f), 42 U.S.C. 2000e 5 ( 0 ........................................  4
§ 706(0(1). 42 U.S.C. 2000-5(0(1)................................ »
§ 717, 42 U.S.C. 2000e-16..............................................  I

Fair Housing Act of 1968, 42 U.S.C. 3601 et seq ................ 12
§ 812(a), 42 U.S.C. 3612(a)............................................  12

Fair Housing Amendments Act of 1988, Pub. L. No.
100-430, § 8, 102 Stat. 1619................................................  12, 13

National Labor Relations Act, 29 U.S.C. 160(b)............... 19-20
Sherman Act, 15 U.S.C. 1 et seq .............................................
42 U.S.C. 1983 ..........................................................................  12

Miscellaneous:

I lOCong. Rec. 7213 (1964)..................................................... 21
110 Cong. Rec. 12723 (1964)................................................... 21
118 Cong. Rec. 7167 (1972)..................................................... II
118 Cong. Rec. 7364 (1972)..................................................... II

C a s e s  — C o n t in u e d :  P a g e

355



V I

F. Harper, F. James, & O. Gray, The Law o f  Torts
(2d ed. 1986)..........................................................................  13

H R. Rep. 100 711, 100th Cong. 2d Sess. (1988)............... 13
Restatement (Second) of Torts (1979).................................. 13

Miscellaneous — C o n t in u e d :  Page

356



3Jn tlje Supreme Court of tlje Uniteb
October Term, 1988

No. 87-1428
P atricia A. Lorance, et at., petitioners 

v.

AT&T T echnologies, Inc., et at.

ON WRIT OF CERTIORARI TO 
THE UNITED STA TES COUR T OF A RPEA I S 

FOR THE SEVENTH CIRCUIT

BRIEF FOR TIIF UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNIT Y COMMISSION 

AS AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF AMICI CURIAE

This case concerns the timeliness of employment dis
crimination charges filed with the Equal Employment Op
portunity Commission (EEOC) pursuant to Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. 2()00e e l s e q .,  
where the basis of the charge is an employee’s demotion 
resulting from the application of an allegedly 
discriminatory seniority system. The EEOC is the federal 
agency primarily responsible for administering federal fair 
employment statutes in the private sector, including Title 
VII, and both the Attorney General and the EEOC have 
substantial responsibility for enforcement of Title VII (see 
42 U.S.C. 2000e-5(a) and (0(D)- In addition, the federal 
government is covered by Title VII in its capacity as the 
nation’s largest employer (42 U.S.C. 2000e-l6). Hence, the 
resolution of the issue presented in this case will directly

(1)
357



2

affect the government’s enforcement responsibilities and 
could also affect the government’s compliance obligations. 
At the Court’s invitation, the Solicitor General filed a brief 
on behalf of the United States and the EEOC as amici 
curiae in support of the petition for a writ of certiorari.

STATEMENT

1. Petitioners Patricia A. Lorance, Janice M. King, 
and Carol S. Bueschen are hourly wage employees at the 
Montgomery Works plant of respondent AT&T Tech
nologies, Inc. (AT&T), in Aurora, Illinois.1 They are also 
members of respondent Local 1942, International 
Brotherhood of Electrical Workers, AFL-CIO (Union). 
Pet. App. 4a. Petitioners Lorance and Bueschen have been 
employed at the plant by AT&T since 1970, and petitioner 
King commenced work there in 1971 ( ib id .) . At that time, 
promotions and demotions at the plant were based on 
plant-wide seniority ( ib id .) .

Most hourly wage jobs at the plant are semi-skilled jobs 
and have traditionally been filled by women (Pet. App. 
15a). Among the highest paying hourly wage jobs at the 
plant are “testers” jobs (id . at 4a, 15a). Tester positions 
were traditionally filled by men who were either promoted 
from among the relatively few men in the lower paying 
wage jobs or hired directly into tester positions (id . at 
15a). All three petitioners were originally employed in 
nontester positions.

By 1978, an increasing number of women obtained 
tester positions based on their plant-wide seniority (Pet. 
App. 4a). In July 1979, AT&T and the Union modified

1 Because the courts below awarded summary judgment to 
respondents based solely on the untimeliness of the charge, our state
ment, like those contained in the lower courts’ opinions, is based on 
the facts alleged in petitioners’ complaint.

358



3

the collectively bargained seniority system applicable to 
the Montgomery Works plant to provide that promotions 
and demotions of testers with less than five years of tester 
service, who have not completed a training program for 
the tester job, would be governed by seniority as a tester 
rather than plant-wide seniority ( ib id .; Compi. 1 17 (J.A. 
21)); plant-wide seniority continued to govern all other 
matters, including, for example, lay-offs and determina
tion of benefits (Pet. App. 16a). The new seniority plan 
was known as the “Tester Concept” (id . at 4a) . 1 2 * Petitioner 
Lorance was a tester at the time the seniority system was 
changed (id . at 5a). Petitioners Bueschen and King became 
testers in 1980 ( ib id .) .

In late 1982, AT&T began a reduction in force and, 
based on its new seniority system, demoted all three peti
tioners (Pet. App. 5a). Petitioners Lorance and King were 
demoted from senior testers to junior testers and peti
tioner Bueschen was demoted to a nontester position 
( ib id .) d  Petitioners would not have been demoted if 
AT&T had implemented the reduction in force on the 
basis of each petitioner’s plant-wide seniority ( ib id .) .  
Within 300 days of their demotions, petitioners filed ad
ministrative charges with the Equal Employment Oppor
tunity Commission (EEOC) claiming that their demotions 
violated Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e e t  s e q ,4 The EEOC determined that there

1 The Union approved the new plan by a vote of ninety votes to 
sixty, which was approximately the ratio of men to women voting 
(Pet. App. 5a).

1 King was downgraded on August 23, 1982. Lorance and Bueschen
were downgraded on November 15, 1982, and Bueschen was 
downgraded a second time on January 23, 1984. Pet. App. 17a.

4 Petitioners Lorance and Bueschen filed charges with the F.F.OC on 
April 13, 1983, and petitioner King filed her charge on April 21, 1983 
(Pet. App. 18a).

359



4

was not reasonable cause to believe that petitioners’ allega
tions were true and, accordingly, issued them right-to-sue 
letters (Pet. App. 5a).

2. Petitioners subsequently brought this lawsuit in the 
United States District Court for the Northern District of 
Illinois pursuant to Section 706(f) of Title VII, 42 U.S.C. 
2000e-5(f).5 In their complaint, petitioners allege that re
spondents AT&T and Union changed the seniority system 
in 1979 “in order to protect incumbent male testers and to 
discourage women from promoting into the traditionally- 
male tester jobs” (Compl. 1 14 (J.A. 20)). They also allege 
that application of this provision has had the effect of 
favoring male testers over female testers ( id . 1 18 (J.A. 
21-22); see also id . 1 6(f) (J.A. 15-16)).

The district court granted respondent AT&T’s motion 
for summary judgment and, sua sponte, also granted sum
mary judgment in favor of respondent Union (Pet. App. 
12a-33a).6 The court agreed with AT&T that petitioners’ 
challenge was time-barred because they had failed to file 
their charges with the EEOC within the applicable limita
tions period established by Section 706(e) of Title VII (42 
U.S.C. 2000e-5(e)).7 The court ruled that the limitations 
period started to run when each petitioner first became 
subject to the new seniority policy as a tester (Pet. App.

5 Petitioners brought this suit as a class action, but the district court 
has yet to rule on their motion to certify the class (see Pet. App. 6a 
n.I).

6 The district court adopted the recommendation of the magistrate 
that summary judgment should be entered in favor of all respondents 
(Pet. App. 34a-50a).

7 AT&T argued below that Title VIPs 180-day limitations period 
applies rather than its 300 day limitations period, but the lower courts 
did not address the issue because under their analysis petitioners’ 
charges were untimely in either event (see Pet. App. 6a n.2, I9a-20a 
n 3).

360



5

26a, 32a). In doing so, it rejected petitioners’ contention 
that the limitations period commenced when they were 
demoted in 1982 (id . at 25a-27a), and likewise rejected 
AT&T’s claim, which the magistrate had accepted (id . at 
43a-44a), that the limitations period commenced for all 
petitioners in 1979 when AT&T first adopted the seniority 
policy (id . at 27a-31a). Because, as the court found, each 
petitioner filed her charge more than 300 days after the 
time each first became subject to the new policy as a tester, 
the court concluded that petitioners’ complaint should be 
dismissed since none had timely filed her charge with the 
EEOC (id . at 32a-33a n.6).

3. A divided court of appeals affirmed (Pet. App. 
3a-lla). The court agreed that petitioners’ argument was 
“logically appealing,” but concluded that it was “com
pelled to reject it” because “[ijf we were to hold that each 
application of an allegedly discriminatory seniority system 
constituted an act of discrimination, employees could 
challenge a seniority system indefinitely” (id . at 8a). Like 
the district court, however, the court of appeals also re
jected AT&T’s argument that the “adoption” of the 
seniority system constituted the relevant act that triggered 
the running of Title VII’s limitations period ( ib id .) . Ac
cording to the court, such a rule would “encourage 
needless litigation” by employees not even yet formally 
subject to the seniority plan and would also “frustrate the 
remedial policies that are the foundation of Title VII” by 
providing future employees with no recourse against a 
seniority system they thought discriminatory ( ib id .) .

The court of appeals determined that to strike a 
“balance that reflects both the importance of eliminating 
existing discrimination, and the need to insure that claims 
are filed as promptly as possible,” the rule should be that 
“the relevant discriminatory act that triggers the period of

361



6

limitations occurs at the time an employee becomes sub
ject to a facially-neutral but discriminatory seniority 
system that the employee knows, or reasonably should 
know, is discriminatory” (Pet. App. 9a). The court con
cluded that because affidavits submitted by petitioners 
established that they knew they were subject to the new 
seniority policy on the day they became subject to it as 
testers, the limitations period commenced on that date. 
Hence, the court found, petitioners’ charges were not 
timely filed with the EEOC because they were filed two to 
three years after each petitioner was first subject to the 
new policy, which is beyond the 300-day limitations period 
provided by Title VII ( ib id .) . See note 4, s u p r a *

Judge Cudahy dissented (Pet. App. 10a-1 la). He agreed 
that the majority’s policy concerns were “important,” but 
contended that they “find dubious application in the result 
here” (id . at 11a). He explained that the majority’s rule 
would not achieve its goal of preventing suits against 
seniority plans adopted long ago, but instead would mere
ly limit the plaintiffs who could maintain a lawsuit to 
those more recently hired (id . at 10a). Judge Cudahy also 
faulted the majority for announcing a legal rule that 
would require employees to bring premature lawsuits. 
When an employee is first subject to a seniority policy, the 
dissent explained, he has not yet been injured by it and 
does not know whether he ever will be. I b id .9

• The court described (Pet. App. 9a) its holding as “a narrow one,” 
noting that the relevant act o f  discrimination may be different where, 
unlike this case, the seniority policy is facially discriminatory or the 
employer exercises discretion provided by the plan in a discriminatory 
fashion.

’ The court of appeals denied petitioners’ petition for rehearing and 
suggestion for rehearing en banc (Pet. App. la-2a). Judges Easter- 
brook. Ripple, and Cudahy voted in favor of rehearing en banc (id. at 
2a n.*).

362



7

SUMMARY OF ARGUMENT

Under Section 706(e) of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e-5(e), the limitations period com
mences to run on the date on which “the alleged unlawful 
employment practice occurred.” In our view, where, as in 
this case, employees claim that they were demoted pur
suant to a discriminatory seniority system, the “unlawful 
employment practice occurred” on the date that the 
employees were first notified of their demotions. In this 
respect, challenges to the application of discriminatory 
seniority systems are like challenges to other continuing 
discriminatory employment policies under Title VII. The 
limitations period is measured from the last asserted ap
plication of the discriminatory policy.

Neither U n ite d  A ir  L in es, Inc. v. E va n s, 431 U.S. 553 
(1977), nor D e la w a re  S ta te  C o lleg e  v. R ick s , 449 U.S. 250 
(1980), suggests otherwise. Those cases stand for the prop
osition that Title VII’s limitations period is not measured 
from the date of the application of employment policies 
(including seniority systems) that merely perpetuate the 
consequences of prior discrimination, but are not 
themselves discriminatory. In this case, petitioners claim 
that the seniority system is itself discriminatory, and thus 
its application is in fact actionable.

Contrary to respondent AT&T’s contention, moreover, 
Section 703(h) of Title VII, 42 U.S.C. 2000e-2(h), does not 
mandate the application of more restrictive statute of 
limitations principles to challenges to the application of 
discriminatory seniority systems. Section 703(h) simply re
quires an employee to include in his proof of unlawful 
discrimination a showing of actual intent to discriminate 
on the part of those who negotiated or maintained the 
system. It does not suggest that only the adoption of the 
seniority system, as distinguished from its specific applica-

363



8

tions to define employees rights, can be an “alleged 
unlawful employment practice” that triggers the running 
of Section 706(e)’s limitations period. In this case, 
therefore, Section 703(h) does not shift the focus of peti
tioners’ discrimination claim away from respondent 
AT&T’s current application of its seniority system.

Finally, the date on which the application of an alleged
ly discriminatory seniority system has a concrete adverse 
impact on the employee is the only sensible date on which 
to commence Title VII’s limitations period. Respondent 
AT&T’s view that the limitations period should be 
measured from the date of a seniority system’s adoption 
cannot be coriect. Under that view, seniority systems, 
however discriminatory in purpose and in effect, would 
operate with impunity, immune from legal challenge 
under Title VII, just a few months after their adoption. 
Nor is the court of appeals’ alternative suggestion — 
measuring the limitations period from the date the 
employee first became subject to the allegedly 
discriminatory seniority system —any more sensible. 
Under that view, as under AT&T’s, employees would be 
required to take the drastic action of suing their employer 
before they could know if they would ever suffer any con
crete injury from operation of the seniority system.

364



9

ARGUMENT

IN A TITLE VII CHALLENGE TO THE APPLICATION OF 
AN ALLEGEDLY DISCRIMINATORY SENIORITY 
SYSTEM, THE “UNLAWFUL EMPLOYMENT PRACTICE” 
THAT TRIGGERS THE COMMENCEMENT OF SECTION 
706(e)’S LIMITATIONS PERIOD OCCURS ON THE DATE 
THE EMPLOYER APPLIES THE SENIORITY SYSTEM TO 
THE EMPLOYEE AND NOT ON THE DATE THE 
EMPLOYER ADOPTS THE SYSTEM OR THE EMPLOYEE 
FIRST BECOMES SUBJECT TO THE SYSTEM.

Section 706(e) of Title VII provides that where there is a 
state fair employment practice agency with overlapping 
jurisdiction, an employment discrimination charge must 
be filed with the EEOC within 300 days “after the alleged 
unlawful employment practice occurred” (42 U.S.C. 
2000e-5(e)).'° If the unlawful practice at issue in this case 
“occurred” on the date of petitioners’ demotions, their 
charges would be timely because they were filed with the

10 As previously noted (see note 7, supra), AT&T argued below that 
the applicable limitations period under Section 706(e) is 180 (not 300) 
days in this case because, although there is a state fair employment 
practice agency with overlapping jurisdiction, petitioners “failed to 
file timely charges with the applicable state ‘deferral’ agency” (Ap
pellee AT&T C.A. Br. 12 n.10). The lower courts did not address this 
question because the resolution of that issue would not have affected 
their disposition of the case (see Pet. App. 6a n.2, 19a-20a n.3), and 
respondent has not reasserted that argument before this Court (see Br. 
in Opp. 2). We note, however, that to the extent the argument rests on 
an allegation that state proceedings were not timely instituted under 
state law, it cannot survive this Court's recent decision in EEOC v. 
Commercial Office Products Co., No. 86-1696 (May 16, 1988), slip 
op. 14 (“state time limits for filing discrimination claims do not deter
mine the applicable federal time limit”). In any event, the question 
whether the 180 or 300-day limitations period applies does not 
preclude review of the question presented here because petitioners 
Lorance and Bueschen filed their charges with the EEOC within 180 
days after their demotions (see notes 3, 4, supra).

365



1 0

EEOC within 300 days thereafter (see notes 3, 4, su p ra ). 
If, on the other hand, the unlawful practice occurred, as 
respondent AT&T contends, only at the time when AT&T 
first adopted the seniority policy or, as the court of ap
peals held, when it was made known to each petitioner 
that her seniority rights would be determined under the 
new policy, then petitioners’ charges would be time-barred 
because they were not filed within 300 days of either of 
those events. Hence, “[djetermining the timeliness of [their 
charges) * * * requires us to identify precisely the ‘unlaw
ful employment practice’ of which [they] complaint].” 
D e la w a re  S ta te  C o lle g e  v. R ic k s , 449 U.S. 250, 257 (1980).

A. The Limitations Period for Filing a Title VII Charge Com
mences Each Time a Discriminator)' Policy Is Used to Make 
an Employment Decision.

1. Petitioners allege that respondent AT&T violated 
Title VII by demoting them pursuant to a seniority policy 
that, while facially neutral, was adopted with a 
discriminatory purpose and has the effect of favoring male 
testers over female testers. We agree with petitioners that 
their charges were timely filed because the date of their 
demotions was the date on which this “alleged unlawful 
employment practice occurred,” within the meaning of 
Section 706(e). Each application of a discriminatory 
seniority system to alter an employee’s employment status, 
like each application of a discriminatory salary structure 
to determine an employee’s weekly pay check, “is a wrong 
actionable under Title VIE” B a ze m o re  v. F rid a y , 478 U.S. 
385, 395 (1986)." It is no bar to the bringing of a challenge 11

11 Indeed, seniority systems and salary structures may both play a 
part in shaping the same challenged employment action, because 
under some employment contracts “earnings are * * * to some extent a

366



II

to the cu rren t a p p lic a tio n  of an allegedly discriminatory 
seniority policy that previous applications of the same 
policy are not now subject to legal challenge under Title 
VII, either because the limitations period has expired or 
because Title VII was not then in effect. Cf. id. at 395-396 
n.6. As this Court explained in B a ze m o re , ,J an employ
ment policy or practice “that would have constituted a 
violation of Title VII, but for the fact that the statute had 
not yet become effective, became a violation upon Title 
VII’s effective date, and to  th e  e x te n t an  e m p lo y e r  c o n 
tin u e d  to  en g a g e  in th a t a c t o r  p ra c tic e , he is liable under 
that statute” ( id . at 395 (emphasis supplied)).* 12 13 * 15

function of seniority.” Franks v. Bowman Transportation Co., 424 
U.S. 747, 767 (1976).
12 In Bazemore, this Court held that each pay check issued pursuant 

to a discriminatory salary structure constituted a present Title VII 
violation, even if the current pay disparities had their origins in pre- 
Act discrimination. In that case, prior to the enactment of Title VII, 
the Agricultural Extension Service of the State of North Carolina 
“maintained two separate, racially-segregated branches and paid black 
employees less than white employees” (478 U.S. at 394). After the 
Service merged its black and white branches into a single organization 
in 1965, “ '|s)ome pre existing salary disparities continued to linger 
on,’ and * * * these disparities continued after Title VII became ap
plicable to the Extension Service in March 1972” (ibid.). This Court
reversed the court of appeals’ conclusion that the current salary 
disparities did not violate Title VII because they merely reflected the 
employer’s failure to eliminate entirely the vestiges of prior
discrimination (ibid.).
15 The Section-by-Section Analysis of the 1972 Amendments to 

Title VII makes clear that the limitations period in Section 706(e) is to 
be measured from the final discriminatory event (118 Cong Rec. 
7167, 7564 (1972)):

Court decisions under the present law have shown an inclination 
to interpret this time limitation so as to give the aggrieved person 
the maximum benefit of the law; it is not intended that such court

367



12

To similar effect is this Court’s decision in H a v e n s  R e a l
t y  C o rp . v. C o le m a n , 455 U.S. 363 (1982), a case brought 
pursuant to the Fair Housing Act of 1968, 42 U.S.C. 3601 
e t s e q ., challenging a continuing pattern, practice, and 
policy of unlawful racial steering in real estate sales. In 
H a v e n s  R e a lty , the Court concluded that the 180-day 
limitations period for a judicial enforcement action then 
established by Section 812(a) of the Fair Housing Act (42 
U.S.C. 3612(a)) did not begin until the “last asserted oc
currence of that practice” (455 U.S. at 381).14 “Where the 
challenged violation is a continuing one,” the Court ex
plained (455 U.S. at 380), “the staleness concern disap
pears.” Where, as in this case, the “last asserted occur
rence” of a discriminatory policy is also the only applica
tion of that policy alleged by the plaintiff, H a v e n s  R e a lty  
seems clearly to indicate that the statute begins to run 
from that event.15

decisions should be in any way circumscribed by Ihe extension of 
the time limitations in this subsection. Existing case law which 
was Is/cJ determined that certain types of violations are continu
ing in nature, thereby measuring the running of the required time 
period from the last occurrence of the discrimination and not 
from the first occurrence is continued, and other interpretations 
of the courts maximizing the coverage of the law are not affected * * * 14 15

14 Compare 42 U.S.C. 2000e-5(e) ("A charge under this section shall 
be filed within one hundred and eighty days after the alleged unlawful 
employment practice occurred * * *.”) with 42 U.S.C. 3612(a) (“A 
civil action shall be commenced within one hundred and eighty days 
after the alleged discriminatory housing practice occurred * *
15 The Fair Housing Amendments Act of 1988 made significant 

changes in the Fair Housing Act of 1968, including establishment of 
an administrative enforcement mechanism and extension of the ap
plicable statute of limitations. See Pub. L. No. 100-430, 102 Slat. 
1619, § 8, 102 Stat. 1625, 1633. The 1988 legislation also reaffirmed

368



3

Finally, decisions of this Court raising analogous limita
tions issues but arising in nondiscrimination contexts like
wise support our view. See, e .g .,  H a n o v er  S h oe, Inc. v. 
U n ite d  S h o e  M a ch in ery , C o rp ., 392 U.S. 481, 502 n. 15 
(1968) (“Although Hanover could have sued (under the 
Sherman Act] in 1912 for the injury then being inflicted, it 
was equally entitled to sue in 1955.”); Z en ith  R a d io  C o rp . 
v. H a ze l tin e  R esearch , In c ., 401 U.S. 321, 338 (1971) (“In 
the context of a continuing conspiracy to violate the anti
trust laws, * * * each time a plaintiff is injured by an act of 
the defendants!,] a cause of action accrues to him to 
recover the damages caused by the act and * * *, as to those 
damages, the statute of limitations runs from the commis
sion of the act.”).* 16 It is therefore not surprising that, as the 
First Circuit recently noted in criticizing the Seventh Cir
cuit’s decision in this case, other courts of appeals have con
sistently held “that the application of a discriminatory 
system to a particular substantive decision (e .g ., to pro
mote, demote, fire, or award benefits) constitutes an in
dependent discriminatory act which can trigger the com
mencement of the statute of limitations.” J o h n so n  v. 
G en era l E lectric , 840 F.2d 132, 135 (1st Cir. 1988).17
“the concept of continuing violations, under which the statute of 
limitations is measured from the date of the last asserted occurrence of 
the unlawful practice,” by providing that either an agency complaint 
or a federal court lawsuit “must be filed within one year from the time 
the alleged discrimination occurred or terminated.'' HR. Rep. 
100-711, 100th Cong., 2d Sess. 33, 39 (1988) (footnote omitted; em
phasis added); see 102 Stat. 1625, 1633.
16 The limitations periods for suit challenging continuing tortious 

conduct is similarly measured. See Restatement (Second) of Torts 
§ 899 comment c (1979); I F. Harper, F. James, & 0. Gray, The Law 
of Torts § 1.30, at 120-121 (2d ed. 1986); Gross v. United States, 676 
F.2d 295, 300 (8th Cir. 1982).
17 See e.g., EEOC v. O'Gradv, No. 87-1996 (7th Cir. Sept. 12, 

1988), slip. op. 5 n.7 (mandatory retirement policy; Age Discrimina-

369



14

2. Contrary to the court of appeals’ decision, this 
Court’s decisions in U n ite d  A i r  L in es, Inc. v. E va n s , 431 
U.S. 553 (1977), and D e la w a r e  S ta te  C o lleg e  v. R ic k s , 449 
U.S. 250 (1980), do not support a different result in this 
case.1* In both of those cases, the Court held that the

tion in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq.)\ 
Johnson v. General Electric, 840 F,2d at 135 (promotions; Title VII); 
Furr v. AT&T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir. 
1987) (systematic company policy restricting promotions; ADEA); 
Abrams v. Baylor College of Medicine, 805 F.2d 528, 532-533 (5th 
Cir. 1986) (policy restricting assignments; Title VII); Cook v. Pan 
American World Airways, Inc., 771 F.2d 635, 646 (2d Cir. 1985) (ap
plication of intentionally discriminatory seniority system; ADEA), 
cert, denied, 474 U.S. 1109 (1986); EEOC v. Westinghouse Electric 
Corp., 725 F.2d 211, 219 (3d Cir. 1983) (policy restricting layoff 
benefits; ADEA), cert, denied, 469 U.S. 820 (1984); Bartelt v. Berlitz 
School of Languages of America, Inc., 698 F.2d 1003, 1004 (9th Cir.) 
(policy of paying lower wages to female employees; Title VII), cert, 
denied, 464 U.S. 915 (1983); Croslandv. Charlotte Eye, Ear & Throat 
Hospital, 686 F.2d 208, 211-212 (4th Cir. 1982) (policy restricting pen
sion plan benefits; ADEA); McKenzie v. Sawyer, 684 F.2d 62, 72 
(D.C. Cir. 1982) (policy restricting promotions; Title VII); Williams v. 
Owens-Illinois, Inc., 665 F.2d 918, 924-925 (9th Cir.) (systematic 
discrimination in assignments and promotions; Title VII), cert, 
denied, 459 U.S. 97! (1982); Association Against Discrimination in 
Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir. 
1981) (giving and using discriminatory hiring examination; Title VII), 
cert, denied, 455 U.S. 988 (1982); Patterson v. American Tobacco 
Co., 634 F.2d 744, 751 (4th Cir. 1980) (application of intentionally 
discriminatory seniority system; Title VII), vacated on other grounds, 
456 U.S. 63 (1982); Satz v. ITT Fin. Corp., 619 F.2d 738, 743-744 (8th 
Cir. 1980) (discriminatory pay and denial of promotions as evidenced 
by discrete acts over a period of time; Title VII); Morelock v. NCR 
Corp., 586 F.2d 1096, 1103 (6th Cir. 1978) (application of intentional
ly discriminatory seniority system; ADEA), cert, denied, 441 U.S. 906 
(1979).
" This Court’s more recent decision in Florida v. Long, No. 

86-1685 (June 23, 1988), also does not support the court of appeals’ 
decision in this case. Current seniority rights, like current salary

370



15

plaintiffs were not challenging any current discrimination 
because, the Court explained, employment practices that 
merely perpetuate the consequences of prior discrimina
tion but are not themselves discriminatory do not con
stitute actionable wrongs under Title VII. See R ick s , 449 
U.S. at 257 (“If Ricks intended to complain of a discrim
inatory discharge, he should have identified the alleged 
discriminatory acts that continued until, or occurred at the 
time of, the actual termination of his employment.”); 
E va n s, 431 U.S. at 558 (“[Plaintiff] has not alleged that 
the system discriminates against former female employees 
or that it treats former employees who were discharged for 
a discriminatory reason any differently from former 
employees who resigned or were discharged for a non- 
discriniinatory reason.”); see also B a ze m o re , 478 U.S. at 
396 n.6 (distinguishing E va n s) (“Because the employer was 
not engaged in discriminatory practices at the time the 
respondent in E v a n s  brought suit, there simply was no 
violation of Title VII.”).

In the absence of an allegation of current discriminatory 
conduct, the Court concluded in both cases that the ap
plicable charge-filing limitations period began to run on 
the date of a prior, allegedly discriminatory act. Thus, in 
E va n s, the limitations period began to run at the time the

payments, relate to “work presently performed” (slip op. 15). The 
allocation of employment opportunities pursuant to a seniority system 
is not akin to the issuance of payments under the pension plan at issue 
in Florida v. Long, which, “funded on an actuarial basis, provides 
benefits fixed under a contract between the employer and retiree based 
on a past assessment of an employee’s expected years of service, date 
of retirement, average final salary, and years of projected benefits” 
(ibid.). Seniority systems, by contrast, are always subject to change, 
by renegotiation or other means, and their impact on particular 
employees is affected by many variable factors, such as increases and 
decreases in the size of the workforce.

371



16

employee was allegedly discharged in violation of Title VII 
and not when, after she was subsequently rehired, the 
employer applied the provisions of the seniority system to 
deny her credit for prior years of service or for years she 
presumably would have served had she not been discrim- 
inatorily discharged (431 U,S. at 557-558). Likewise, in 
R ic k s , the limitations period began to run at the time the 
employer notified the employee of his denial of tenure and 
not when, as the “inevitable consequence” of that denial, 
the employee was later discharged upon completion of a 
one-year terminal contract (449 U.S. at 256-259). “The 
emphasis is not upon the effects of earlier employment 
decisions; rather it ‘is (upon) whether any present violation 
exists’ ” (id . at 258, quoting E va n s, 431 U.S. at 558 (em
phasis omitted)).

In this case, however, petitioners’ demotions were not 
merely present consequences of a previous, time-barred 
discriminatory decision or act. They were instead a direct, 
discriminatory effect of the application of a seniority 
system that petitioners allege was adopted with a 
discriminatory purpose. Hence, the demotions were 
themselves “unlawful employment practices” capable of 
triggering the Section 706(e) limitations period.19 Further

19 There is no merit to AT&T’s suggestion that petitioners’ de 
motions were not discriminatory acts because they were merely the 
result of the application of a neutral, general rule that certain benefits 
and burdens of employment will be determined according to seniority, 
while the challenged unlawful practice was actually the adoption of an 
allegedly discriminatory rule that the seniority of testers will be de 
cided by service as a tester. There is no more merit to this argument 
than there would have been to an analogous contention in Bazemore 
that each weekly pay check is not an actionable wrong under Title VII 
because it is simply the product of the application of a wholly benign, 
discrete rule —that individuals would be paid salaries pursuant to the 
salary structure — while the employees’ discrimination charge focussed

372



17

more, unlike the discharge in R ick s , petitioners’ demotions 
were not the “inevitable” result of the seniority system’s 
adoption. AT&T’s announcement of its seniority policy 
did “not abundantly forewarn!]” petitioners of their 
demotions (449 U.S. at 262 n,16). It did not notify peti
tioners that they would, in fact, ever be demoted based on 
that policy at some future date. It merely created the 
theoretical possibility of some undefined future adverse 
employment consequences.* 20

B. Challenges lo the Application of Discriminatorily-Motivated 
Seniority Systems Are Not Governed By More Restrictive 
Statute of Limitations Principles Under Title VII

There is no merit in either the court of appeals’ (Pel. 
App. 8a) or respondent AT&T’s suggestion (Br. in Opp. 
5-7) that an especially strict interpretation of the Section 
706(e) limitations period is appropriate for challenges to

on the salary structure itself, which had been adopted at an earlier 
time. In neither instance is the rule that employment decisions are 
made pursuant to an employer’s general policy separable from the 
discriminatory portion of the policy.
20 In Ricks, the announcement of the tenure denial also amounted 

to formal prior notification of termination of his employment and, 
for that reason, triggered the running of Title VIPs limitations period. 
Cf. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (Limitations period 
begins to run in a Section 1983 action based on unlawful employment 
discrimination at the time “the operative decision was made —and 
notice given —in advance of a designated date on which employment 
terminated.”). We assume that petitioners did not similarly receive 
formal notification of their imminent demotions prior to the demo
tions themselves. If they did, the limitations period might be deemed 
to have commenced at the date of such specific notice. See Heiar v. 
Crawford County, 746 F.2d 1190, 1194 (7th Cir. 1984) (While 
“specific notice of termination * * * starts the * * * statute of limita
tions running, it does not follow that the notice [of an employment 
policy) an employee receives when he is first hired would also set the 
statute to run; it surely would not.”).

373



18

the application of a seniority system. Section 706(e) 
nowhere provides that challenges to seniority systems are 
governed by different limitations rules than other types of 
discrimination claims. Section 703(h),21 which is the only 
provision in Title VII that identifies seniority systems for 
special treatment, does not address, explicitly or implicit
ly, the time limits for filing charges.22 It simply provides 
that differences in treatment that would otherwise be 
unlawful under Title VII are lawful where they are “pur
suant to a bona fide seniority * * * system * * * provided 
that such (differences] are not the result of an intention to 
discriminate” ( ib id .) .

Unlike AT&T, we do not believe that the legal effect of 
Section 703(h) is to require that any challenge to a seniori
ty plan under Title VII must be brought no more than 300 
days after the plan’s adoption. Section 703(h) requires that 
the employee include in his proof of unlawful discrimina
tion a showing “of actual intent to discriminate on * * * 
the part of those who negotiated or maintained the 
system.” P u llm a n -S ta n d a rd  v. S w in t, 456 U.S. 273, 289 
(1982); A m e r ic a n  T o b a c c o  C o . v. P a tte r so n , 456 U.S. 63, 
65 , 69-70 (1982).23 It does not suggest that only the adop

21 See 42 U.S.C. 2000e-2(h) ("jilt shall not be an unlawful employ
ment practice for an employer to apply * * * different terms, condi 
lions, or privileges of employment pursuant to a bona fide seniority 
* * * system * * * provided that such (differences! are not (he result of 
an intention to discriminate * * *.”).
22 The court of appeals never relied on Section 703(h) to support its 

ruling.
23 AT&T’s erroneous contention (Br. in Qpp. 7) that the court of 

appeals decision in this case is “compelled” by this Court’s decision in 
American Tobacco Co. v. Pallet son, supra, rests on a 
mischaracterization of the Court’s opinion in that case. The Court in 
American Tobacco Co. found that, “taken together, Teamsters and 
Evans stand for the proposition stated in Teamsters that ‘(s)ection

374



1 9

tion of the seniority system, as distinguished from its 
specific applications to define employee rights, can be an 
“alleged unlawful employment practice” that triggers the 
running of Section 706(e)’s limitations period.24 Section 
703(h) simply provides that “[njotwithstanding any other 
provision of [Title VII],” certain employment practices 
shall n o t be unlawful.25 Because petitioners have alleged 
an “intention to discriminate” in the formulation of the 
seniority system and a current discriminatory effect from 
the application of that system, the employer conduct they 
challenge is in no way protected by Section 703(h).26

703(h) on its face immunizes all bona fide seniority systems, and does 
not distinguish between the perpetuation of pre- and post-Act’ 
discriminatory impact” (456 U.S. at 75-76 (emphasis and brackets in 
original), quoting International Brotherhood of Teamsters v. United 
States, 431 U.S. 324, 348 n.30 (1977) (emphasis added)). AT&T omits 
the Court’s critical qualification that the seniority system must be 
“bona fide.” The Court’s statement does not “compel" a particular 
result in this case because petitioners assert that AT&T's seniority 
system was adopted with a discriminatory intent and, hence, is not 
“bona fide” within the meaning of Section 703(h).
24 In fact, it is clear that discriminatory purpose in the adoption of a 

seniority system is not essential at all to the finding that the plan’s ap
plication constitutes a violation of Title VII. A seniority system loses 
its exemption under Section 703(h), and thus violates Title VII, if it is 
either adopted or maintained for discriminatory purposes. Teamsters, 
431 U.S. at 355-356; Pullman-Standard v. Swint, 456 U.S. 273, 289 
(1982).
25 Indeed, Section 703(h) does not define what is unlawful under 

Title VII in the first instance at all. It is Section 703(a), 42 U.S.C. 
2000e-2(a), that affirmatively sets out those employment practices that 
are unlawful under Title VII.
2S AT&T mistakenly relies (Br. in Opp. 7) on International Ass'n of 

Machinists v. NLRB, 362 U.S. 411 (I960), to support its contrary 
view. In International Machinists, the Court held that a claim of un
fair labor practice based on the enforcement of a clause in a collective 
bargaining agreement was untimely under the National I abor Rela-

375



20

Section 703(h)’s limited legislative history likewise pro
vides no support for AT&T’s view of its effect on the run
ning of Title VII limitations periods. As previously re
counted by this Court, Section 703(h) was part of the com
promise substitute bill fashioned by Senators Mansfield 
and Dirksen that cleared the way for Title VII’s passage. 
See generally T ea m ste rs , 431 U.S. at 350-353; F ra n k s v. 
B o w m a n  T ra n sp o r ta tio n  C o ., 424 U.S. 747, 758-762 
(1976). The legislative history shows that Section 703(h) 
had the important but limited purpose “to make clear that 
the routine application of a bona fide seniority system 
would not be unlawful under Title VII” (T e a m ste rs , 431 
U.S. at 352; see also F ran ks, 424 U.S. at 761). There is no 
indication in the legislative history that Section 703(h) was 
intended to have any effect on challenges to non-bona fide 
seniority systems, including the date on which the limita

tions Act, 29 U.S.C. 160(b), because the exclusive ground for the 
clause’s asserted illegality was an error in its execution, and challenges 
to the execution itself were no longer timely. The Court explained that 
“the use of the earlier unfair labor practice * * * serves to cloak with 
illegality that which was otherwise lawful. And where a complaint 
based upon the earlier event is time-barred, to permit the event itself 
to be so used in effect results in reviving a legally defunct unfair labor 
practice” (362 U.S. at 417). In this case, however, petitioners have not 
sought “to cloak with illegality that which was otherwise lawful.” Peti
tioners instead were simply meeting a possible defense to their 
discrimination claim based on Section 703(h), and —as we understand 
it —contend only that “earlier events may be utilized to shed light on 
the true character of matters occurring within the limitations period” 
(362 U.S. at 416). Hence, unlike International Machinists, the con
tractual provision being challenged in this case is (like the pay struc
ture at issue in Bazentore) not “wholly benign”; it favors male testers 
over female testers. The evidence of AT&T’s motive in adopting and 
maintaining the seniority plan is therefore simply evidence deemed 
necessary by Congress, under Section 703(h), to prove “the true 
character” of the plan’s current operation (362 U.S. at 416-417 (foot
note omitted)).

376



21

lions periods for such challenges would commence lo run 
under Section 706(e). Indeed, in underscoring the 
legitimacy of challenges to post-Act “use” of non-bona 
fide seniority systems, the legislative history suggests Con
gress’s understanding that the application of a discrimina
tory seniority system would itself constitute the “unlawful 
employment practice” for the purpose of triggering Sec
tion 706(e)’s limitations period. See 110 Cong. Rec. 7213 
(1964) (interpretive memorandum of Senators Clark and 
Case) (emphasis added) (“However, where waiting lists for 
employment or training are, prior to the effective date of 
the title, maintained on a discriminatory basis, the u se of 
such lists after the title takes effect may be held an 
unlawful subterfuge to accomplish discrimination.”).27

Finally, this Court’s decisions regarding the meaning of 
Section 703(h) are consistent with our view. While they do 
not address the precise issue before the Court, those deci
sions make clear that a current application of a previously 
adopted seniority system may sometimes be open to Title 
VII challenge. See A m e r ic a n  T o b a c c o  C o . v. P a tte r so n ,  
456 U.S. at 69-70 (“The adoption of a seniority system 
which has not been applied would not give rise to a cause 
of action. A discriminatory effect would arise only when 
the system is put into operation and the employer ‘applies’ 
the system. Such application is not infirm under § 703(h) 
unless it is accompanied by a discriminatory purpose.”); 
E va n s, 431 U.S. at 560 (Section 703(h) “does not foreclose 
attacks on the current operation of seniority systems

” “While these statements were made before § 703(h) was added to 
Title VII, they are authoritative indicators of that section’s purpose” 
(Teamsters, 431 U.S. at 352). See ibid., quoting 110 Cong. Rec. 12723 
(1964) (remarks of Sen. Humphrey) (brackets in original) (“(T)he ad 
dition of § 703(h) ‘merely clarifies [Title Vll's) present intent and ef
fect.’ ”).

377



22

which are subject to challenge as discriminatory.”); 
F ra n k s, 424 U.S. at 761 (“[T]he thrust of [Section 703(h)] 
is directed toward defining what is and what is not an il
legal discriminatory practice in instances in which the 
post-Act operation of a seniority system is challenged as 
perpetuating the effects of discrimination occurring prior 
to the effective date of the Act.”).

C. Commencement of the Limitations Period Before the 
Challenged Seniority System Is Applied and Injures the 
Employee Would Frustrate Title VIPs Purposes and Lead to 
Absurd Results.

AT&T and the court of appeals do not agree on the 
precise date on which Title VII’s limitations period begins 
to run in a challenge to the application of an allegedly 
discriminatory seniority system, but they agree that it 
commences before the employee is concretely affected. As 
their own inability to agree on a particular date makes 
clear, however, the date the policy is applied in a manner 
that actually has a concrete adverse impact on a particular 
employee is the only sensible date on which to commence 
the limitations period, especially in light of the remedial 
purposes of Title VII.

1. First, as the court of appeals itself recognized (Pet. 
App. 8a), AT&T’s view that all challenges to provisions of 
seniority systems must be brought within 300 days of their 
adoption would lead to nonsensical results. An individual 
injured by a seniority system adopted long before he 
became employed by the company would have no standing 
to complain until after his claim was time-barred. Thus, 
“[t]he principal focus of [Title VII)” — “the protection of 
the individual employee, rather than the protection of the 
minority group as a whole” (C o n n e c tic u t v. Teal, 457 U.S. 
440, 453-454 (1982)) —would be defeated.

378



23

Of even broader concern, seniority systems, however 
discriminatory in purpose and in effect, would operate 
with impunity, immune from legal challenge under Title 
VII, just 300 days after being put into effect. Indeed, all 
seniority systems adopted prior to the enactment of Title 
VII would be immune from challenge. Absent compelling 
evidence to the contrary, and AT&T offers none, it cannot 
plausibly be supposed that Congress intended such a 
bizarre result, particularly in light of “the difficulty of fix
ing a[j [seniority system’s) adoption date” (A m e r ic a n  
T o b a c c o  C o  v. P a tte r so n , 456 U.S. at 76 n. 16). As this 
Court has observed, Title VII’s “limitations periods should 
not commence to run so soon that it becomes difficult for 
a layman to invoke the protection of the civil rights 
statutes” {R ick s , 449 U.S. at 262 n.16).

2. The court of appeals’ substitute proposal— under 
which the limitations period commences to run when the 
employee first becomes subject to the allegedly dis
criminatory seniority plan —is no more tenable. The court 
of appeals selected that compromise date in order to strike 
a balance “between eradicating existing discrimination and 
protecting the [seniority] rights of all employees” (Pet. 
App. 8a). As Judge Cudahy explained in his dissent to the 
majority opinion {id . at 10a), however, the court of ap
peals’ ruling fails to serve either of those important in
terests. On the one hand, it undermines its own goal of 
preventing suits against seniority plans adopted long ago 
by permitting employees not covered at the time of a 
seniority system’s enactment to challenge the plan when 
they first become subject to it. On the other hand, the 
court of appeals’ approach suffers from the same flaw it 
found in AT&T’s position. It requires employees to make 
irrevocable decisions whether to challenge an employment 
system at a time when “they ha[ve] not really been injured

379



24

and might never be injured” ( ib id .) . The employee 
therefore is faced with a Hobson’s choice either to bring 
what may be an unnecessary and premature lawsuit 
against his employer, to the detriment of the employment 
relationship, or to forego any possibility of recovery in the 
event that the plan ever should operate to injure him.

3. There is also no merit to the court of appeals’ con
tentions that a Title VII challenge to a facially neutral 
seniority system should be governed by different rules for 
the commencement of limitations periods than a challenge 
to an employer’s action “pursuant to a seniority system 
that is facially discriminatory” (Pet. App. 9a). An act of 
intentional discrimination that is facially neutral is no less 
unlawful under Title VII. Section 703(h) requires only that 
those challenging seniority systems establish that, in addi
tion to having a discriminatory effect, the seniority system 
was adopted, or is currently maintained, with an intention 
to discriminate. See T ea m ste rs , 431 U.S. at 353, 356; 
S w in t, 456 U.S. at 277. The critical issue in seniority cases 
is not whether the plan is f a c ia l l y  neutral or 
discriminatory, but whether an intent to discriminate can 
be proven. Hence, when a seniority system not only has a 
discriminatory impact, but was “adopted because of its 
* * * discriminatory impact” (S w in t, 456 U.S. at 277), the 
facial neutrality of the system is simply irrelevant. In this 
case, therefore, the employer’s alleged discriminatory pur
pose in seeking to discourage women from becoming 
testers and to disadvantage women who currently are 
testers is equally repugnant to Title VII and injurious to 
employees, whether accomplished by a facially neutral or 
an overtly discriminatory seniority system.

Nor is the court of appeals’ approach justified by the 
difficulties perceived by that court in ordering relief in

380



25

challenges brought long after a seniority system’s adoption 
(Pet. App. 8a). As this Court explained in F ran ks, 424 
U.S. at 779 n.41, district courts may use their equitable 
powers to limit the award of retroactive seniority to vic
tims of discrimination where an award of full seniority 
would have an “unusual adverse impact.” By analogy, 
district courts should be permitted to address other 
equitable concerns arising out of challenges to seniority 
systems, and thus be able to craft a case-specific remedy 
that properly balances the make-whole purposes of Title 
VII relief and the interests of innocent employees in par
ticular cases.

CONCLUSION

The judgment of the court of appeals should be re
versed.

Respectfully submitted.

C h a r le s  F ried  
Solicitor General

Do n a ld  B. A yer  
Deputy Solicitor General

R ic h a r d  i .  L a zaru s  
Assistant to the Solicitor Genera!

C h a r le s  A . S hanor 
General Counsel

G w en do lyn  Y oung R eam s 
Associate General Counsel 

V in cen t  J. Blackw o o d  
Assistant General Counsel 

Donna J. Brusoski 
Attorney
Equal Employment Opportunity 
Commission

Decem ber  1988

381



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Lorance v. AT&T Technologies, Inc. Petitions and Briefs

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