Lorance v. AT&T Technologies, Inc. Brief Amicus Curiae

    No. 87-1428

tfjc S u pre m e  C o u rt of tf)e U m te b  iktate#
O c t o b e r  T e r m , 1988

P a t r ic ia  A. L o r a n c e , e t  a l ., p e t it io n e r s

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

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

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

V.

Charles Fried 
Solicitor General

W m . Bradford  Reynolds 
■ Assistant Attorney General

Donald  B. A yer 
Deputy Solicitor General

C harles A. Shanor  
General Counsel

R ichard  J. Lazarus 
Assistant to the Solicitor

General
G wendolyn  Young  Reams 

Associate General Counsel
David  K. F lynn
L inda  F. T home 

AttorneysVincent J. Blackwood  
Assistant General Counsel Department of Justice 

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

Stephen  P. O ’Rourke 
Attorney
Equal Employment

Opportunity Commission
Washington, D.C. 20507



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. 2000e-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.

(1)



TABLE OF CONTENTS

Page
Statement ..................................... ...................................... 1
Discussion ............................................................................  6
Conclusion .........................      19

TABLE OF AUTHORITIES
Cases:

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

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

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

Bazemore v. Friday, 478 U.S. 385 (1986) . . . . . . . . . . . 7 ,  8, 1 1, 12
California Brewers Ass’n v. Bryant, 444 U.S. 598 (1980). . 18
Char don 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 & 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) ...............................................    11
Heiar v. Crawford County, 746 F.2d 1190 (7th Cir.

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

411 (1960) .................................................................  11

( I I I )



IV

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

431 U.S. 324 (1977) .................. ...............................  10, 11
Johnson v. General 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(f)(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(f), 42 U.S.C. 2000e-5(f).............. ..................  3

National Labor Relations Act, 29 U.S.C. 160(b)............  11



3) n tfje Supreme Court of tfje Uniteti
O c t o b e r  T e r m , 1988

No. 87-1428

P a t r ic ia  A. L o r a n c e , e t  a t ., p e t it io n e r s

v .

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

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

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

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

STATEMENT

1. 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. Petitioners Lorance 
and Bueschen have been employed at the plant by AT&T since

1 Because the courts below awarded summary judgment to respondents 
based solely on the untimeliness of the charge, our statement, like those con­
tained in the lower courts’ opinions, is based on the facts alleged in petitioners’ 
complaint.

(1)



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.  ̂ 17).2 3 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.)J 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

2 The Union approved the new plan by a vote of ninety votes to sixty, which 
was approximately the ratio of men to women (Pet. App. 5a).

3 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, 1983. Pet. App. 17a.



3

Commission (EEOC) claiming that their demotions violated 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e ei 
seq,4 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).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. 
H 14). They also allege that application of this provision has had 
the effect of favoring male testers over female testers (id. H 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. 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 limitations 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 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 de­

4 Petitioners Lorance and Bueschen filed charges with the EEOC on April 
13, 1983, and petitioner King filed her charge on April 21, 1983 (Pet. App. 
18a).

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.l).

6 The district court adopted the recommendation of the magistrate that 
summary judgment should be entered in favor of respondents (Pet. App. 
34a-50a).

1 AT&T argues that Title VIPs 180-day limitation period applies rather than 
its 300-day limitations period, but the courts below did not address the issue 
because under their analysis petitioners’ charges were untimely in either event 
(see Pet. App. 6a n.2, 19a-20a n.3).



4

moted 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-1 la). The 
court agreed that petitioners’ argument was “logically appeal­
ing,” but concluded that it was “compelled to reject it” because 
“[i]f 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 VII’s limitations period (ibid.). According to 
the court, such a rule would “encourage needless litiga­
tion” 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 
(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



5

cause they were filed two to three years after each 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. lOa-lla). 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 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 provides 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

8 The court described (Pet: App. 9a) its holding as “a narrow one,” noting 
that the relevant act of discrimination may be different where, unlike this case, 
the seniority policy is facially discriminatory or the employer exercises discre­
tion provided by the plan in a discriminatory fashion.

9 The court of appeals denied petitioners’ petition for rehearing and sugges­
tion for rehearing en banc (Pet. App. la-2a). Judges Easterbrook, Ripple, and 
Cudahy voted in favor of rehearing en banc (id. at 2a n.*).

10 As previously noted (see note 7, supra), AT&T claims that the applicable 
limitations period in this case is 180 (not 300) days because, although there is a



6

Hence, “[determining the timeliness of [petitioners’] EEOC 
complaint, and this ensuing lawsuit, requires us to identify 
precisely the ‘unlawful employment practice’ of which [they] 
complain[ ].” Delaware State 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).11 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.
state fair employment practice agency with overlapping jurisdiction, 
respondents “failed to file timely charges with the applicable state ‘deferral’ 
agency” (Appellee 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). We note, however, 
that to the extent that respondent AT&T’s assertion 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 determine 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 by the petition because petitioners 
Lorance and Bueschen filed their charges with the EEOC within 180 days after 
their demotions (see notes 3, 4, supra).

11 See 42 U.S.C. 2000e-2(h) (“[I]t 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 
* * * provided that such differences are not the result of an intention to 
discriminate * * *.”).



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 the time the employee was allegedly discharged 
in violation of Title VII and was not restarted when the 
employer subsequently refused the employee’s request to restore

12 Indeed, seniority systems and salary may merge because under some 
employment contracts “earnings are * * * to some extent a function of seniori­
ty.” Franks v. Bowman Transportation Co., 424 U.S. 747, 767 (1976).

13 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 payments, relate to “work present­
ly performed” (slip op. 15). They are not akin to 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” (slip op. 15).



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 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).

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 We assume that petitioners did not receive formal prior notification of 
their imminent demotion prior to the demotion itself. If they did, the limita­
tions period might be deemed to have commenced at that earlier time. See 
Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir. 1984) (While 
“specific notice of termination * * * starts the * * * statute of limitations run­
ning, it does not follow that the notice an employee receives when he is first 
hired would also set the statute to run; it surely would not.”).



9

seniority policy in this case did “not abundantly forewarn[ ]” 
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.).15

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.16 Section 703(h) requires that the employee in-

15 The court of appeals, unlike AT&T, never relied on Section 703(h) to 
support its ruling.

16 Indeed, as the court of appeals recognized (Pet. App. 8a), such a view 
leads 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. Seniority systems, 
however discriminatory in purpose and effect, would operate with impunity, 
immune from legal challenge, just 300 days after being put into effect, as 
would all of those enacted before the adoption of Title VII. This Court’s deci­
sions, however, reflect a quite different view of the import of Section 703(h). 
See, e.g., American Tobacco Co. v. Patterson, 456 U.S. 63, 69-70 (1982) 
(“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 dis­



10

elude 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).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 “[notwithstanding any 
other provision of [Title VII],” certain employment practices

criminatory purpose.”); United Air Lines, Inc. v. Evans, 431 U.S. at 560 (Sec­
tion 703(h) “does not foreclose attacks on the current operation of seniority 
systems which are subject to challenge as discriminatory.”); Franks v. 
Bowman Transportation Co., 424 U.S. 747, 761 (1976) (“[T]he thrust of [Sec­
tion 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 oc­
curring prior to the effective date of the Act.”). Nor can we suppose that Con­
gress intended such a harsh result, particularly in Title VII where this Court 
has recognized “that the 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” (Delaware State College v. Ricks, 449 U.S. at 262 n.16) and 
“the difficulty of fixing an adoption date” (American Tobacco Co. v. Patter­
son, 456 U.S. at 76 n.16).

17 AT&T’s erroneous contention (Br. in Opp. 7) that the court of appeals’ 
decision in this case is “compelled” by this Court’s decision in American 
Tobacco Co. v. Patterson, 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 ‘[sjection 703(h) on its face immunizes all bona fide seniority systems, and 
does not distinguish between the perpetuation of pre- and post-Act’ discrimi­
natory impact” (456 U.S. at 75-76 (emphasis and brackets in original), quoting 
International Brotherhood o f 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).



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 current operation of the 
plan (in demoting petitioners pursuant to that plan) constitutes 
a present violation of Title VIL19 

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

18 Indeed, Section 703(h) does not even require an employee to show that a 
seniority system was adopted with discriminatory intent. It is well settled that a 
seniority system loses its exemption under Section 703(h) if it is either adopted 
or maintained for discriminatory reasons. International Brotherhood o f 
Teamsters v. United States, 431 U.S. at 355-356; Pullman-Standard v. Swint, 
456 U.S. at 289.

19 While proof of AT&T’s discriminatory intent at the time its seniority plan 
was adopted or maintained is necessary in order to overcome the Section 
703(h) defense, it is not alone sufficient to establish petitioners’ claim that the 
seniority plan amounts to a present violation of Title VII. Cf. Bazemore\. Fri­
day, 478 U.S. at 396-397 n.6, 402; Hazelwood School District v. United States, 
433 U.S. 299, 309-310 & n.15 (1977). For this reason, AT&T’s reliance (Br. in 
Opp. 7) on International Ass’n o f Machinists v. NLRB, 362 U.S. 411 (1960) is 
misplaced. In International Machinists, the Court held that a claim of unfair 
labor practice based on the enforcement of a clause in a collective bargaining 
agreement was untimely under the National Labor Relations 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 time­
ly. 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 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 
practice” (362 U.S. at 417). In this case, however, petitioners have not sought 
“to cloak with illegality that which was otherwise lawful.” Petitioners instead 
were simply overcoming a possible defense to their claim based on Section 
703(h), and —as we understand them —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, in this case, unlike International 
Machinists, the contractual provision being challenged is not “wholly benign” 
and the evidence of AT&T’s motive in adopting and maintaining the seniority 
plan is simply evidence deemed necessary by Congress to prove “the true 
character” of the plan’s current operation (id. at 416-417 (footnote omitted)).



12

a Title VII claim: (1) a rule that the seniority of testers will be 
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 
dates. 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 this case, 
“[m]ost 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 In contrast, the seniority policy at issue in Evans was wholly benign and 
distinct from the employer’s prior discriminatory discharge of the employee.

21 See, e.g., Furr v. AT&T Technologies, Inc., 824 F.2d 1537, 1543 (10th 
Cir. 1987) (systematic company policy restricting promotions; Age 
Discrimination in Employment Act (ADEA)); Abrams v. Baylor College of



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, 805 F.2d 528, 532-533 (5th Cir. 1986) (policy restricting 
assignments; Title VII); EEO C\. Westinghouse Electric Corp., 725 F.2d 211, 
219 (3d Cir. 1983) (policy restricting layoff benefits; ADEA), cert, denied, 469 
U.S. 820 (1984) ; Crosland v. Charlotte Eye, Ear & Throat Hospital, 686 F.2d 
208, 211-212 (4th Cir. 1982) (policy restricting pension plan benefits; Title 
VII); 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 with respect to assignments and 
promotions; Title VII), cert, denied, 459 U.S. 971 (1982); Association Against 
Discrimination in Employment, Inc. v. City o f Bridgeport, 647 F.2d 256, 274 
(2d Cir. 1981) (giving and using discriminatory hiring examination; Title VII), 
cert , denied, 455 U.S. 988 (1982) ; Satz v. IT T  Financial 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).

22 A subsequent Seventh Circuit opinion authored by Judge Cudahy, who 
dissented in that court’s decision below (see Pet. App. lOa-lla), also suggests 
that possibility. In Torres v. Wisconsin Dep’t o f Health & Social Services, 838 
F.2d 944, 948 n.3 (1988), a Seventh Circuit panel rejected an employer’s claim 
that the plaintiffs’ complaints were not timely filed with the EEOC, where 
plaintiff-employees were challenging a facially discriminatory employer plan 
adopted in 1980 that restricted certain jobs to women, but did not file charges 
“until after their demotions, pursuant to the full implementation of the Plan, 
in September 1982.” The court ruled “that the relevant discriminatory act was 
the Plan’s implementation and the plaintiffs’ resulting demotions in 1982. The 
plaintiffs’ status * * * was not directly affected by the mere adoption of the 
Plan in 1980, nor were their future demotions assured at that time” (ibid.). The 
court preceded a cite to its prior decision in this case with a “But, cf.” signal 
and intimated that its holding there was confined to a “ ‘narrow’ set of cases 
involving ‘facially-neutral but discriminatory seniority systemjs]’ ” (ibid., 
quoting 827 F.2d at 167 (Pet. App. 9a)). The Seventh Circuit has since vacated 
its opinion in Torres and agreed to hear the case en banc. See 838 F.2d at 
957-958. There is no indication, however, that the full court agreed to rehear 
the case in order to address the timeliness issue.



14

crimination law. See Cook v. Pan American World Airways, 
Inc., 771 F.2d 635, 646 (2d Cir. 1985) (“[T]he 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) (“[T]he 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).23

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, “the 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 Mayer & Co. v. Evans, 441

23 The Seventh Circuit in this case implicitly acknowledged that its ruling 
conflicted with the Fourth Circuit’s decision in American Tobacco Co., which 
it cited as supporting petitioners’ contention “that the continued application of 
any intentionally discriminatory seniority system constitutes a continuing 
violation of Title VII” (Pet. App. 7a).



15

U.S. 750, 75 5 (1979)).24 Hence, the 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 (Br. 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 ruling 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 VII’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

24 The Second Circuit in Cook stressed (771 F.2d at 644) the common 
features shared by Section 703(h) of Title Vli and the ADEA’s analogous pro­
vision governing seniority systems (§ 4(f)(2)). See 29 U.S.C. 623(f)(2) (“it shall 
not be [an] unlawful [practice] to observe the terms of a bona fide seniority 
system * * * which is not a subterfuge to evade the purposes of th[e] 
[ADEA].”).



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.25

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 “eliminatejdj the necessity for th[e] 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

25 Morelock, like this case and unlike Ricks, involved a challenge to the ap­
plication of an allegedly discriminatory seniority system.



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, “[seniority 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
quired 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 As Judge Cudahy also explained (Pet. App. 10a), the majority’s rule will 
not even ably serve the one objective it sought to promote— prompt resolution 
of challenges to seniority systems —because under the majority’s rule (unlike 
AT&T’s), future employees are “not barred by the statute of limitations and
* * * can bring challenges to tester seniority in the future.”



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 For the reasons described by this Court in American Tobacco Co. v. Pat­
terson, fixing an adoption date is often a difficult task (456 U.S. at 76 n.16).

28 For instance, as described by petitioners (Pet. 31-32 & n.18), in at least 
two cases previously before this Court, it seems that neither employer ques­
tioned the timeliness of Title VII charges challenging the lawfulness of seniori­
ty plans where the plaintiff-employee had first become subject to the plan long 
before the bringing of the lawsuit, which instead was filed following injury 
caused by the plan’s operation. See California Brewers Ass’n v. Bryant, 444 
U.S. 598, 601-602, 610-611 (1980); Nashville Gas Co. v. Satty, 434 U.S. 136, 
138-143 (1977).



19

CONCLUSION

The petition for a writ of certiorari should be granted. 
Respectfully submitted.

C harles F ried 
Solicitor General

W m . Bradford  Reynolds 
Assistant Attorney General

Donald  B. A yer 
Deputy Solicitor General 

R ichard  J. Lazarus 
Assistant to the Solicitor 

General
David K. Flynn 
L inda  F. T home 

Attorneys

C harles A. Shanor  
General Counsel 

G w endolyn  Young  Reams 
Associate General Counsel

Vincent  J. Blackwood 
Assistant General Counsel

Steph en  P. O ’Rourke 
Attorney
Equal Employment

Opportunity Commission

Septem ber  1988

U S. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60637