Correspondence from Pamela Karlan to Finance Re Whitfield v. Clinton

    *w

■

No. 87-1428

In The
Supreme Court of ttje ® m t e &  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

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
Counsel of Record Patricia A. Lorance, et al.



TABLE OF CONTENTS

Page
Table of Authorities........... iiA
ARGUMENT 1

I- C o n t r a r y  to R e s D o n d e n t s  ' 
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- International Association 
of Machinists v, NLRB Does 
Not Support Respondents'
P o s i t i o n .................  25

i



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.6 8A, exhibit 11.

Appendix B.
Correspondence Regarding 
the Use by Respondents 
In their Brief of 
Cutside-the-Record Facts 
and a Privatedly Com­
missioned Research 
Project ..................

ii

TABLE of authortttc-o
Cases Page
A1?ooaMle Paper Co- v - Moody, 422 U.S. 405 (1975) 35
A1?“  v - Gardner-Denver Co.,415 U.S. 36 (1974) 23, 34
American Tobacco Co. v. Patterson 456 U.S. 63 (1982) ' 39-41
Bau"?e' V ' Frlday- 476 °-s - 385 36, 38 

44
Bishop v. Wood, 426 U.S. 341 (1976) . . 1

California Brewers Ass'n v. 
Bryant, 444 U.S. 598 (1980)

renick, 443 U.S. 449 ( 1 9 7 9 9
Dayton Board of Education v
Brinkman, 443 U.S. 526 (1 9 7 9). . 9

Delaware State College v. 449 U.S. 250 (1980) Ricks.

DelCostello v. Teamsters, 1 462 U.S. 151 (1983)/ * * 0 •
v. Home Insurance Co., 553 

. Supp. 704 (S.D.N.Y. 1982)

43-44

29-30

6

iii



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

Ford Motor Co. v. EEOC, 458 U.S. ^
219 (1982) ....................

Heiar v. Crawford Country, 746 
F .2d 1190 (7th Cir. 1984), 
cert. denied, 472 U.S. 1027 22-23
(1985) .......................

International Association of
Machinists v. NLRB, 362 U. • 25-29
411 (1960) ..................

Johnson v. General Electric,
840 F .2d 132 (1st Cir. 1988) . •

Mobile v. Bolden, 446 U.S. 55
(1980) ........................

Newman v. Piggie Park Enterprises,
390 U.S. 400 (1968) ..........

NLRB v. International Brotherhood 
Of Electrical Workers, 827 F.2d 
530 (9 th Cir. 1987) ..........

Owens v. Okure, 57 U.S.L.W. 4065 
(Jan. 10, 1989) ..............

Personnel Administrator of 
Mass. v. Feeney, 442 U.S.
256 (1979) ....................

Potlatch Forests, Inc., 87 NLRB 2 7 _ 29 
1193 (1949) ..................

Cases (Continued)

iv

Causes (Continued) Page
Reed v. United Transportation Union, 57 U.S.L.W. 4088 (Can. li, 1989) . . . .

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

Un“ 'dI1Aer Llnes’ Inc- V. Evans. 431 U.S. 553 (1977)

United Parcel Service v
Mitchell, 451 U.S. 56’(1981)

United States v. Bd. of Schools 
Commissioners, 573 F.2d 400  (7th Cir.), cert. denied.439 U.S. 824 (1978)

Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 (1977)

W?i976?t0n V' DaVis' 426 U -s- 229 
Statutes
Labor-Management Reporting and 
Disclosure Act, §1 0 1 (a)(2 ), 29 U.S.C. § 411(a)(2)

Title VII of the Civil Rights 
Act of 1964, 42 U.S.C.
§§ 2 0 0 0e et seq.

23, 30- 
32

9, 16, 
35

37-38,
43-44

29-30

42

9, 37 

9

30-32

passim

v



Statuses (continued)

Equal Employment Opportunity Act
of 1972, P.L- 92-261, _ _ 33
86 Stat. 103 ..............

National Labor . . . passim§ 10(b ) , 29 U.S.C. § 160(b)
T^qislative__AjathprjLt-ies
118 Cong. Rec. 7167 (1972) • • * ’ 33

nthpr Authorities
r u Northrup, Economics G. Bloom & H. Norxmup, . _ 16oX^abqr_Relatl°ns 237 (1961).

tt Harbison, The__Seniority 
F -̂ n ciole inJ J n i o n z m ^ e m ^ -   ̂ 16 

Bplations 33 (1939) ........
lackson and Matheson, Th§
Cpntin^ng^^Aali°^l^||^ tionand the_Cqnce£t_qf_^^A^i£----
ITT Title VII Suits, 67 Geo. R
-------Z------ / 1 Q 7 Q \  ...........................................L.j. 811 (1979) .............. 6

r . Stern, E. Gressman, S . Shapiro, Supreme__CquTt_Pra£tice (Sixth
ed. 1936) at 564 ..............

Union Contract Clauses (CCH) 
<(| 51,428 ................. 17

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

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



2

amici curiae. Our reply brief addresses
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 CURRENT OPERATION OF THE 
"TESTER" SENIORITY 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, Ad. 
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 aad the IBEW conspired to change

3
the seniority system » m  order to protect 
incumbent maie testers and to discourage
" " "  , r °'" p r o m o t i n g  into the
traditionaily-male tester jobs," and that 
" [ t ] he larjose and effect of this 
manipulation of seniority rules" were to 
advantage male employees over female 
employees. Joint App. 2 0 - 22 IEmphasls 
added).

in accordance with these allegations,
the petiti o n e r s  have argued that
"Whenever the seniority system operated
as intended by AT&T and Local 1942 to deny
J°b opportunities to petitioners because
of their gender, AT&T and Local i942.
commit an unlawful employment practice.
Brief at 2 1 . (Emphasis added| . when the
company and Onion Implement the conspiracy
to discriminate against women, they
violate Title VII -t-uSince the petitioners
filed charges of discrimination within the



4

requisite filing P « i - .  Brie£ ** '3'16'
from tha date that the Company and Union
implemented the discriminatory seniori y

4- • i nners to lower-paying system to bump petitioner
jobs while males with less seniority
remained in the higher-paying Job*. the

v._ve filed timely charges, petitioners have r u e
case is whether the The issue in this case

nrt on a motion for summary district court, on
• mnrotjerly dismissed this action -judgment, improperly

i i-tiffs' EEOCon the ground that the plaintif

1 When petitioner Lorance^ " ob
downgraded on ! '^de tester 37.
grade tester prade 36 testers
there were ity than Lorance.with less plant J f ^ 0^ agY downgraded on 
When petitioner*%rom a job grade 37 
August 23, 1 ' ade tester 36, theretester to a 30 9 testers with lesswere t h i r t y  B«de « aJe« ing . When
plant senior was downgraded onpetitioner Bueschenf was ^ 35

November 15, 1 ' 33 position theretester to a job S™.Se * de 36 testers
JTith ̂ ^ f e f ^ - h ^ u e s c h e n ^

B « , c he». attached as
Appendix A).

5
charges were not timely. In this 
procedural posture, the Court must accept 
the petitioners' "version of the facts," 
i n cluding the allegations in the 
complaint . 2 Bishop v. Wood, 426 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. 3

 ̂ 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.

3 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



6
TT R E S P O N D E N T S '  r e l i a n c e  u p o n  
11 • Inappropriate and inaccurate factual

ARGUMENTS UNDERSCORES THE ™ O R  Ijj
THEIR POSITION THAT THE PETITIONERSTl L eV  U N T IM E l Y D I S C RIMI N A T I O N
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
which suffers from the same th*tdiscriminate but chooses to achieve *Tv 
aoal through the operation of a policy 
Shlch is designed to disadvantage woeen 
Without establishing expl1 cit gender classifications. Concern for the 
"substantial reliance in .̂er®*tQf t̂ e employees and the lost investment of the 
company in the "guid £ro guo fox- the
challenged agreement, ** ia su99 VII' override the statutory goal of Title VII. 
Id at 36. This Court certainly must 
«ject a position which would permit a 
Timely challenge to an intentionally 
discriminatory policy to be thwarte Y
the interests of the parties to the 
unlawful agreement. S_e_e
Home Insurance Cc k , 553 F. S“PP‘ ' The(S.D.N.Y. 1982); Jackson and Matheson,
Continuing_Violation T h ^~~viTnnncept of Jurisdiction in Titl^JOI
Suits, 67 Geo. L.J. 811, 851 (1979).

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

4 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 thisproject. 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.

-if loners 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.



8
underscores the error in respondents' 
arguments.

1. Respondents state that the 
petiti 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 1979," that "no facts 
are alleged" 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; see also, Brief at 14-
15 (emphasis added).

First, the harsh impact of the 
new dual seniority system on female 
workers provides objective circumstantial

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 R6 8B at 59, 
147 and 187. * 24

"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 
QL-ffass. y. 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 Educatlon v. Penlck, 443 
U.S. 449, 464 (1979); see also Dayton
Board of Education v. Brinkman, 443 U.S.
526, 536 n.9 (1979); Teamsters v. United
States, 431 U.S. 324, 339 n.20 (1977).



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, R6 8C at 61, told 
petitioner King that the Tester Concept 
was instituted "to protect people ... who 
were already testers." R6 8C 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 m  
testing." R6 8B at 42 (Craig Payne was a 
Vice President of the Union, R6 8B at 8 6 ) . 6

6 C o m p a n y  o f f i c i a l s  a n d
suDervisors knew that the incer£ ^ e change the seniority system came from the
^  r t i ’o n s "  ^ 1 ^  h e 1 malPer V e ^ e V  V nd ’  °t orelieve the "tension" in the plant caused
by the male workers' hostility t° Vj advancement of the female workers R6 8C 
at 48-54. In addition, a union official, 
Steve Lorenz, told petitioner Lorance th 
a member of "upper management, Skelton,

11
Third, the conduct of the 1979 

Union meetings 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). R6 8B at 84-89. "The men ... were 
upset because women were coming in with 
seniority and . . . bypassing them for the 
upgrades.... They wanted something done 30

the manager of manufacturing, R6 8 C 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." R6 8B at 114-16; see also 6 8A 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, R6 8B at 28 and
30, and R6 8C at 43, and that men received 
more assistance and training from 
supervisors than women, R6 8B at 28, 35,and 80.



12
about It." R6 8B at 84. "Most" of the men 
present "were complaining about women 
coming in." R6 8B 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 , 1979 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 R6 8 C at 101. Union 
members complained, once again, "that 
women were coming in with seniority

7 Petitioner Lorance only learned 
about this meeting because she overheard 
some testers talking about the meeting.
R6 8A at 173. Apparently, the men were 
holding several secret meetings to which 
no women union members were Invited. R6 8B 
at 89; see also, R6 8A at 31-32. These 
"secret" meetings would be a focus of the 
plaintiffs' discovery if they are able to 
pursue their claims.

8 The record Is unclear as to how
well and fairly the meeting was published.
See, R6 8C at 87-88.

13
passing the men up and they were tired of 
it." R6 8B 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 9 7 9 when the 
seniority change was under consideration, 
offensive posters were repeatedly placed 
"all over" the workplace. R6 8B at 110; 10 

R6 8A at 28-30; R6 8 C 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." R6 8B at 104.

In one particularly offensive 
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." R6 8B at 109.



14
about the posters. R6 8C at 24-27; R6 8B at 
110-14 .

2. Respondents assert that "[t]he 
agreement is a classic accommodation of 
employer and employee interests," Resp. 
Br. at 15; that it is "narrowly 
tai l o r e d , "  i d . at 6 ; that it is 
"rational," id. at 36; and that it is a 
"departmental system" like many other 
systems, i_d\ at 14-15. Respondents may 
attempt to establish th.ese 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

15
petitioners maintain, an arbitrary 
division designed to advantage male 
workers over female workers.^

Furthermore, r e s p o n d e n t s 
maintain 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 *

Respondents' desperate, improper 
and incompetent attempt to rely upon 
outside-the-record facts must be rejected. 
See, n .4, supra, and Appendix B.



16
the bargaining representatives." Union
entrant Clauses (CCH) 1 51.428 (1954)12
(Emphasis added).

The Union, not the Company,
proposed the Tester Concept. R68B at 104- 
OS. 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 
Onion 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  their

12 S ee a l s o , G. Bloom & »•
Northrup, Ecpnprru^of_^b , ,q q i \. f Harbison, Tne— a. e “ -i ̂  l-M^nl'e in Uni on-Manaqement_Relatipns 33
(1939) .

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 
§ f.t?_r 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 
contract,^ the petitioners complained to

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



18
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

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.

19
tester seniority "would ho .y would be used for
upgrades onl y  and that plant seniority
would be used for downgrades. R68C at 119
and 123.

M o r e o v e r , 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*. Consistent 
“1th 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 
“as still negotiating about the Tester



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 .

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.

21
This case is a good example. 

Prom 1979 through 1962 it was unclear 
whether the new seniority system applied 
to downgrades. The Onion 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 
^ 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 AM

“ ™ EKcoim°4ITnI0N THAT MAS S jS S S  By
has adopted AND THAT "° C0TOT
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. 

at 17 28. This extreme position has



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.1 *® 
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  than  the 
" [ c ] ooperation and voluntary compliance" 
sought by Congress "as the preferred

1 ° See also Johnson v. General 
Electric, 840 F.2d 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 Ctv. 746 F.2d 
1190, 1194 (7th Cir. 1984), cert, denied,
472 U.S. 1027 (1985); EEOC  v .
Westinghouse, 725 F.2d 211, 219 (3d Cir.
1983), cert, denied, 469 U.S. 820 (1984).

23
means for achieving [Title VII's] goaJ

415 u.s.
(1974). see also Reed v. Uni .j

57 u.SiL w 4Q88<
4090 (Jan. 1 1 , 1989).16

court of appeals rejected
respondents' proposed rule for the same
reasons: "Reguiring 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
° f Title VII." pp*. .Pet. App. 8a. Under
respondents' approach, the Seventh Circuit 
neted, "any seniority system would be

aaek an inform's? relo'lution*\ deS 1 re to
to comply with the pil“ ?"s' remf3" ” ”' (as did petitlonpw r y requirements 
stymied by a for Lorance) would be
courthouse at the outlet m ® rch to theY, Crawford Ctv y h  ^  Heiar
( " ^ o T T e - T o ' - i t ^ a n t  to f  .at 119*employment by suino thoi ° ,begin their 
policy that will affect fhmPl°yer °Ver a" if at all.) f ct them years later,



24
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 believe 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  
discriminatory 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

i' Respondents' position would 
apply to all discrimination claims 
brought under Title VII. Resp. Br. at 17 
n. 21.

25
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  espoused by 
respondents.
IV' I-N T E_R_N A T I 0 K AL A S S O O T A t t o m

_ -̂i__NLRB DOEls N0T~^SUPPORTRESPONDENTS' POSITION.
R e s p o n d e n t s  rely heavily on

~-t-gZI1̂ ĵ ^ - ^ g ° g l a t-ion of Machinic^ „
NLRB, 3 6 2 u.s. 4 1 1 ( 1 9 6 0 , ( -Bryan
ManuXactutung'.,, construing the six-month 
statute of limitations under § 10(b) of 
the National Labor Relations Act, 29
U.s.c. § 1 6 0(b). See, Resp. Br. at 18-



26
23. There are two reasons that Bryan 
M a n u f a c t u r i n g does not support 
respondents1 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^anuf_acturins would 
not bar plaintiffs' claims even if that 
decision applied in the Title VII context. 
In general, petitioners have maintained 
that Bryan Manufacturing precludes 
untimely challenges to flaws in the 
establishment of otherwise lawful labor 
policies but does not preclude an action, 
such as Lorance, 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  i s  

supported by the r e l ia n c e  o f  the Court in

27
3ryan__Kanufacturinq on the decision of the 
National Labor Relations Board in Potlatch 
Forests_,__Inc^, 87 NLR3 1193 (1949), as an 
example of the correct interpretation of 
§ 10(b) of the NLRA. 362 U.S. at 419. In 
—?.tlatch the Board held that, by "apDlying 
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 

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." X4- at 1210-11.



28
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. 87 NLRB at 1211.19

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 Potlatch 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

29
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 b a rgained- for 
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.



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 
u n it e ̂ P a r r al 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 Feed 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

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



32
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 
4090. 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, 118 Cong. Rec. 7167

33
(March 6, 1972).20

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." Section-by- 
section analysis, 118 Cong. Rec. 7167 (March 6, 1972) .

In addition, respondents support 
their contention by referring to Ford 
Motor Co. v. EEOC. 458 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



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 priority.'" Alexander v. 
Gardner-Denver Company, 415 U.S. 36, 47
(1974), quoting Newman v. Piqgie 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 
acting 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 s e 1f-eva1uate their 
employment practices and to endeavor to 
eliminate, so far as possible, the last 
vestiges' of their discriminatory

35
In view of the strong federal interest in 
eradicating employment discrimination 
through private actions, the balance of 
interests underlying § i0(b) of the NLRA 
as interpreted in Bryan__Mamifacturing 
simply does not apply in the context of 
Title VII.

I H L C0URT>S PRI0R DECISIONS provide t ha t 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 
"[irrelevant, " 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_^aper Co. y. Moody. 422 U.S. 405, 417-18 (1975)).



36
intentionally discriminatory policy 
whenever that policy is applied to her 
detriment. See, Pet. Br. at 25-44.

In 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.

Similarly, the fact that the

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

This conclusion is consistent 
with general civil rights doctrine which 
permits a challenge to an unconstitutional 
policy whenever it is given effect. See 
e .g ., Mobile v. Bolden, 446 U.S. 55
(19 8 0) ; Village of Arlington Heights v. 
Metropolitan Housing Corp., supra.



38
explained in Bazemore v. 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

39
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. 63
(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



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

Patterson 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 
"fa c i a l l y  neutral" nature of the

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.

41
challenged policy is somehow significant 
is belied 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 . q . 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



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 * 2

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.

2 5 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, 
U n i t e d  S t ates v. Bd. of School 
Commlssloenrs, 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

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.")



44
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

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





^International Sroflirrliooi' of Llrririral li1orl;rrs

1741 JER ICHO  ROAD 
AURORA, IL 6050* LOCAL 1942 TELEPHONE 859-2833

January 12, I9g3

James P. Conway 
Sixth District vice President 
373 Schraale Rd., Suite 201 
Carol Stream, Illinois 60187
Dear Sir and 5rother«
Se: Three letters of complali

into°negotlat°onsUwit^the In 1978 *«• ^ . 1  entered
it is the Montgomery Dorics ?e^2r ̂ r a i ^ - p * *  t0 Whit ia refor~ d to< originally designedyto further t r a i n n |  Program. This program was 
well a. to provide a m.ani by whlcî  t^e n o n  P r e , 0 n t l y  toll a,tain the necessary trainino to non-testers on roll could ob-
the contract, in fsSO T l ,  T t  lll W M  'r"de part of1980 bargainina that tha * fi Zt * further agreed during
• copy enclosed?, ‘to^asT S T F iT I L Z S ? ' * 9 p T * boo?1*t

tlate"the ^ t e ^ T r ^  Tr^tlT^TTiTA -Til "*9°-
82 with J.E. McGovern Barcainiio'tJ.!* •, L  ting K** held on 12-21 
wherein we were unabli to agree on M b s ' 3  Company,Company was advised bv m* ^#4,5,6,47. At that time the
Of *11 t..?e» involved? ,s^r.?[.ch:SCT:erOUldebe ls*ued °n b"hal* uals involved). Attached letters for each of the Individ

nt.

SIXTH DISTRICT, I.B.LW.

Fraternally,

Q.o^fP^-e^
/  /James Cappleman 
' President t Business Manager 

I.B.E.W, Local 1942

I X H I B I T
Soescmi

J C / i a
Snc.



Sitter P.A. Lorance - EI809857

. i.ft.r dated 11-9-82 whereing the gave me

S & s x & t t s r s i i  “
Ihi\r.t“rChi“ b«r:dvtt.̂ th.tithr5,ntontw^lnni^ ££»'<><
negotiating the Tetter Training Program.
The Union*, contention i. that [J";,;;" ^ e l j ^ M U f 0theSe were 
for employeei on roil entering tn« 
for the upward movement.

»•  £ O T e T o nb r ! £  Montgcmeryi»ervicetforUthe*upward
movement.

2). Obtain the .am. amount of ...vie. a. other tetter, in the 
universe.
Completion o, «h. <l». <« “ <“  «*“ '
Program.

Tho Comp.ny1. PO*lll“n *f*- lnioraitlo^^P-A* Lot.nc. ini

i;r:ois:.*.:!tr;s; “ s;.” . r ; S n „ . a.o • >■ •—  *••»* °n
11/15/82 to a 37 grade teeter.
There are pre.ently tixty-.ev.n ,67, 38 grade te.t.r, with 1... Mont­
gomery tervice.
Grievance, were n^^'tlking'the^.itio^thit these griev-
the present time the Company ** ** ^  w. were in a negotia­
tion* s tage'^nd"'^ tempting to re.olv. thee, problem, with the Comp.ny, 
that our time frame started 12-21-82.

Sitter J.K. King - E#805595

{}:•;“ ............meeting in Columbu., Ohio and w„ unlble to d! io! * 3 Council
the siste^ha^been^dviSe^tha^the'uni th* Union "••ting» and negotiating the Te.t.r TmniJjgSrogr^!0" "*• ln th* prOC*“

11 ■ s y s v ^ s r t s i a i a .

2>' TitS.I*' “ °Unt °f *ervlc* •• o^.r te.t.r. in the
3)' Progr«it̂ 0n °f “ • fiV* (S) modul"  in th« T»«t.r Tr.inin,

a u r «  r j i s . ”  ■ ~ ™ ”

i::«,:r:iS,;:21s.:;js.,s “  SOL” ........ ■«» »......

s ^ i ^ t s s - s j a s * ,  n s s s . “ ~  ^  s s s j ^ s . .



Sister C.D. Bueschen Ei B092S6

Sister Bueschen sent me a letter dated 11-4-82 wherein she gave me 
five (S) days to respond. Subsequently I was attending a EH3 Council 
Meeting in Columbus, Ohio and was unable to do so.
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 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 grace testers with less 
Montgomery service: thirty-five (35) - 37 grade testers, seventy-nine 
(79) - 3E 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 
our time frame started 12-21-82.

APPENDIX B - Correspondence Regarding the
Use by Respondents in their Brief of
Outside-the Record Facts and a Privately
Commissioned Research Project:

I1. 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. Letter from David Carpenter to Barry 
Goldstein, March 6, 1 9 8 9 .



Suite 301
1275 K Street. NW
Waakiuftou, DC 20005 (202)682-1300 Pm : (202) 682-1312

HAMD-DELIVER

March 1, 1989

TOF NAACP LOCAL DEFENSE 
AND EDUCATIONAL WJND, INC.

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 Lorance 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 BNA.

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 how 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 BNA's work product has been properly

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."

Ci i.J ii ■ mm
MMmUfmUS TW NAACP Legal !*<«■« *  IA k m m m I feai. lac. (IDF) a met am 

a f Ae Nasiamal Aaaoaaaa far Ac Aietmoanemt e f  CetaraJ Psafic 
(NAACP) alAaagfc LDf m m  tmmUai by As NAACP ■
r* .......  LOP Was ka4 far v
•aasl peagTM suff. sff.ee md  U4fCt.

Sam MM PtUNlmi
N r e V a iN Y M U(ra)m-mo P»« rmi m-nn

4N S. S fnaf Ssrece 
Lee Aageiss. CA W N
(2U)«34-MB
Ns; rsni uejwn



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.

Barryv Goldstein

BG:oet

T H E  B U R E A U  O F  N A T I O N A L  A F F A I R S ,  I N C .

^  General CnwwH. OWeei n eM JtU M U S T W
and Ai&teuni Secretary

March 1 , 1989

Barry C o ld ste ln  
NAACP Legal D efease sad  
E ducation al Fund, I n c ,
S u ite  301
1275 t S t r e e t ,  N.W.
Washington, D.C. 20005
Dear Mr. G o ld ste in :

Tour l e t t e r  to  Susan Korn has been r e fe r r e d  to  me fo r  a r a p ly .

The Bureau o f N ation a l A f f a i r s .  I n c ,  d o e . not r .y . a l  th e  id e n t i t y  o f  i t .  
s u b s c r ib e r s ,  th e p ro d u ct, th ey  su b scr ib e  t o ,  or  th e  nature o f  any research  
2rl».c°T U h ,  5*1 Such lnform * t lo n  U  f “*rded In order to  p r o te c t  th .  
custom er \^ s t V  ° Ur cu*to “ *r * *nd th® p r o p r ie ta r y  r ig h ts  o f  BNA in  I t s

„  J°a[ ,lnf,U lr i e * conc*rnln«  ch* sou rce  and nature o f  In form ation  used in  a 
cou rt b r i e f ,  and th e  q u es tio n  o f whether such use 1 .  proper or Im proper, would 
be more p rop er ly  d ir e c te d  to  th ose  f i l i n g  th e  b r i e f .

Tours t r u ly ,

1231 Twcnty-fifth Street. Northwest, Washington, DC 20037 □ Telephone (202) 152-4200 o  TELEX 285656 BNA1 WSH



March 2. 1989

Rex E. Lee, Esquire
c/o David W. Carpenter, Esquire
Sldley & Austin
One First National Plaza
Chicago, Illinois 60603
Stephen J. Felnberg, Esquire 
Asher, Pavalon, Glttler 
6 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 as requesting that you agree to remove the 
Appendix and the entire reference to the Appendix, the last 
sentence in footnote IS on page IS, from Respondents' brief. The 
Appendix contains entirely outside-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 IS 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 
evaluated without BNA providing the 
"specifications" for the job, and the 
supporting Information about the sample, the 
definitions used, etc. Of course, it Is

1275 K Street, N.W, Suite 301, Washington, D .C 20005 202/682-1300 Frnc 202/682-1312 Modem: 202/682-1318

Rex E. Lee, Esquire
^ c h V i 9E lnb*Pfl' E,qulr*Page 2

o f " b n a ^ s ‘ w o r k  p r o d u c t *  £ £  ° f l y  v a l i d i t y  
w o r k  p r o d u c t  h a s  b e e i i  t r i n i t y  w h o t h e r  » * * ’ • 
T e c h n o l o g i e s  a n d  t h T  O n l o n ^  n l  “ B e d  ** A TfiT  
e v a l u a t i o n  c a n  n o t  e v e n *  £  ° b v l o u « 1 Y .  t h i s  
s u p p o r t i n g  l n f o r a a t i o i ^  ***?? w l t h o u t  t h e  

t *• Pr.P̂ rVhl0.d0ctflryt ??„d
It. cl"iA. „ r U. r  0M.Prr0dtU„C*p“ ty.ct,0t r tlOni °r —  —  of

BNArYd|G O id * t e l n ’  d “ t<Kl M a r c h  1 1 9 8 9 k ’  I T h " , * 1 » N A . t o
a n d  P < fC te d  t h «  P e t i t i o n e r s '  " l n J L l r l L I  l e t t , r  im * n c * ° « e d )  . 
e n d  n a t u r e  o f  i n f o r m a t i o n  u s e d  T h „ C° n ^ n I n f l  t h e  a ° u r c e
i i t  ••• t o  t h o s e  f i l i n g  t h e  b r i e f  ■

counsel have done in L « I Z ,  t0 V  brl«* Respondents* 
evidence that Is not ..*O M  additional or different
Court Pr.eH.. >t 564p „_»b* certified record." Supreme
appellate courts have dealt nrn. t? Supreme Court Prsr-ft—
• offend?°n* [by< for exuple] g r . S 7 ^ ~ " ver«iy with such offending matter. 5 6 4 -6 5 nting a motion to strike the

t r o u b ? . ^ : : * ^ . 1" ^  «;-Pond.nt.' Brief i. particularly 
feet that the material r J * ltT d  , i  ‘”Ce ln th« Brief to ItZ
nuhl’J th,t l* un*v,1l»ble to thedCourt* * commissionedpublic. Nevertheless, the °PP08lng counsel, or the
study .s . "representative ^  Pefer to Private
agreements." I<,P at 1 5  n Js* °f e°“ *ctlv. bargaining

Defendants' Brief Aoao **all?nderrdi-h,*Ct* Presented In the 
technique ln bringing to the Court's "o-called BrandsIs brief 

facts which bear ^ p o n ^ t h ? * "  BS-bll,he<! Mterlal 
l0n‘ SuEremeCourt Practice *be./«»«onableness of The Respondents seek to introdn^C~ L  V  865 (Raphaels added) 

^ M l « h e d  material /moreover0* t h f ° ?  the SuPr« '  Co? «  developed. Irrelevant to the ' f*1® facte are prlvatelv
and subaltted without any foiid?iV>10,M*“* °f *ny legislation 
presentation of these fast. d? ? ° n or authentication The 
district court since" before S T
the least, it l« inappropriate thit it ^ ® n ••tabllehed; to say 
to present to the Supreme C o u r t ^ M ^  Respondents have sought 
record ..ferial from somcTunldentiMe<i “C i ? . * h*d '



Rex E. Lee, Require 
Stephen J. Felnberg, Esquire 
Merch 1. 1969 
Page 3

Since the Petitioners' Reply Brief Is due on March 7, 1989, 
the Petitioners Bust have a reply by 3:00 p.m. on Friday, March 3 
as to whether the Respondents Mill agree to remove the Appendix 
and footnote IS 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. Felnberg (312-263-1320), and Charles C. 
Jackson (312-269-8 869) 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.

Very truly yours.

Barry Goldstein

BG:oet
Enclosure
cc: Robert Weinberg, Esquire

Charles C. Jackson, Esquire 
Richard J. Lazarus, Esquire 
Donna J. Brusoski, Esquire

Si d l e y 8 c A u s t i n
Om e  F i b s t  N a t io n a l  P u u  
C h ic a o o , Il l in o is  6 0 6 0 3  
TILS p h o n e  Olfi: 6 6 3 - 7 0 0 0  

Te l e x  8 5 - 4 3 6 4

March 3, 1989

*  u w  w il u a m  t r a m  
OMOOM, M 4 I  MA. IN O L U ID

Barry Goldstein, Esq.
NAACP Legal Defense and 
Educational Fund, Inc.

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005

Re: France v. AT&T Technologies
No. 87-1428 (U.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 analyzing contracts with departmental seniority. We are 
faxing this material to you today and are separately sending it 
Federal Express for delivery tomorrow.

tru8t that this fully addresses your concerns on 
what should be a noncontroversial point: that departmental
seniority systems are commonplace.

Very truly yours,
'<■£ Cc/.

David W. Carpenter
DWC:dsg
Enclosures
cc: Rex E. Lee (w/o enclosures)

Charles C. Jackson (w/o enclosures) 
Stephen J. Feinberg (w/o enclosures) 
Robert M. Weinberg (w/o enclosures)



RESEARCH METHODOLOGY A 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 is maintained primarily for the company's 
Collective Bargaining Negotiations and Contracts service. The file also is used for research 
purposes. The collection is kept up to date with the latest contract renewals or amendments. 
Within the collection, a sample of approximately 400 contracts is maintained with regard to a 
cross section of industries, unions, number of employees covered, and geographical areas. The 
sample is the basis for the CBNC analysis of basic patterns in union contracts, conducted every 
three years.

To determine the prevalence of departmental seniority provisions by industry, BNA 
PLUS labor analysts researched the contracts in the sample database (a listing of the contracts, 
by industry, is 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 this research, as agreed. BNA PLUS included as depart­
mental seniority those instances where seniority is 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 is presented in the attached tabic

1. Mary Dunn 
Managing Editor, CBNC

Susan Korn 
Senior Labor Analyst, BNA PLUS

Oop̂ IgM © tSSS by Thu Bursau St NaSenst NUn, few.

NAACP LEG AX DEFENSE 
AND EDUCATION AX FUND, INC.

Suite 301 
1275 K Si. NW 
W uhufiou  DC 20005 202/6*2-1300 Fax: 202/6*2-1312

March 3, 1989

David W. Carpenter, Esquire 
Sidley 6 Austin 
One First National Plaza 
Chicago, IL 60603

RE: Lorance v. AT4T Technologies
No. 87-1428

Dear Mr. Carpenter:

I have received the letter dated March 3rd, fros 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 sy letter of March 2, 1989, the 
outside-the-record eaterial contained in the Respondents' Brief 
should be stricken.

In addition, the documents that you enclosed with the March 
3, 1989 latter inadequately describe the private project that
you sponsored. (He will lodge these documents with the Suprene 
Court if the saterial is not removed fros the Brief). For 
example, the docusents do not describe the seniority provisions 
from the contracts. All that is listed is the cospany name, 
industry, 'sic' coda, and the expiration data 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 4 Results' states as follows:

For the purpose of this research, oa agreed.
BNA Plus included as departmental seniority 
those instances where seniority is based on 
some subunit of the workforce (departments. 
gectiong, occupational groups. *&£*.) rather 
than length of service at a plant or with the 
company. (Emphasis added)

*■>. us T V  NAACP L ay ! P r W  A t i r .mss . I F m s i . l t .  (LOP) i. —  yew 
a f  A t Mwise .I 4 ■ar m .as Ue + e  * dvm r mmmi m lCwkmrmi Peep** 
(NAACP) .bfc.eg* LDf w M U -dcW  by A* NAACP —  ta e es  m  
ax i s  ■■ . . ngbu.  LDF k s U i s e v e r  3» y e a n  ■ «parsa t 

pregraat. Staff, office asd M g n

HmamdOgm 
M m  MM
f f l M s a M m i
N rw  V ert. NY M U
M UMW 
Pea. m/XM-TWO

434 S. Spring Sc 
La* A ag rin  CA * 
21VO4-M05
H r .  212/4)64*7*



David W. Carpentar 
March 3, 1989 
Paga 2

BNA Plus, 'the custom research and documental retrieval 
division of The Bureau Of National Affairs, Inc.* apparently 
’Agreed* With AT&T Technologies to call departmental any measure 
of seniority, 'department[el], section[al], 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.

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 AT&T 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 
attorneys for AT&T Technologies) may establish the plaintiffs' position.

Finally, you should not be 'surprised' that we want to 
review the BNA material at this 'late date.' There is ns 
reference in the Respondents' Brief to the fact that this a 
'customized' job done at the direction and by the 
'specifications' set by AT&T Technologies. Frankly, we never

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-reoord 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. Feinberg, Esquire



MB MO MOO TIUI H IM

Si d l e y 8 c A u s t i n
Om s  F i s s t  Na t i o k  ax  P l a z a  
C b i CAOO, ILLINOIS © 0 6 0 3  
I aXZFSOVV 018: 0 5 3 -7 0 0 0  

TkLEX 8 0 -4 0 0 4

M  U M  WILUAM I I I U T  

Mil Mi-MM n u x  MOM

• •mmwrom  war

March 6, 1989

BI TELECOPY
Barry Goldstein, Esq. 
NAACP Legal Defense and 

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005

Rei Lgtang? v. AT6T Technologies
No. 87-1428 (U.S. Supreme Court)

Dear Mr. Goldstein:

_ 1000 Thi* i8 ,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 
tern departmental seniority" to refer to all seniority systems where 
seniority is based on some subunit of the workforce le.a.. a department, 
a section, or an occupation) rather than length of service in the plant 

with t*'° 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 tern 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 

s®niority" system. The point is that the materials in BNA's 
publicly-accessible database shows that however these systems are 
denominated, seniority systes:s (like ATST's) that measure seniority based 

ln 8 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. J

Very truly yours,

j C- |i ->f'( 
David W. Carpenter

DWCtdsg
cct All Counsel

MAR 6  * 8 9  1 3 : 2 6 PA G E . 0 0 2



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?



11

TABLE O F CONTENTS Page:
QUESTION P R E S E N T E D ......................................................  i
TABLE OF A U TH O RITIES.................................................... iii
STATEM ENT OF THE CASE ........................................  1

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 A R G U M E N T .............................................  12
A R G U M E N T .............................................................................. 14

I. Petitioners Are Seeking To Engage In The Very Liti­
gation Of Stale Claims That The 180-Day Statute Of 
Limitations Is Designed To Prevent, Contrary To 
Three Decades Of Decisions Of This C o u r t .................  18
A. Petitioners’ Continuing Violation Theory Was Re­

jected By This Court’s Decisions in Machinists, 
Ricks, and E v a n s ........................................................  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 d o p tio n .............................................  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

C O N C L U SIO N ............................................................................ 44
A PPEN D IX — Statistics Of Bureau Of National Affairs On

Departmental Seniority Systems .................  45

TABLE O F AUTH ORITIES
C a s e s :  Pageti):

Abrams v. Baylor College o f  Medicine, 805 F.2d 528 
(5th Cir. 1986) ........................................................... 27

Aeronautical Industrial District Lodge v. Campbell,
337 U.S. 521 (1 9 4 9 ).................................................. 15

American Tobacco Co. v. Patterson, 456 U.S. 63
(1982) .......................................................................... passim

Bailey v. Chesapeake & Ohio Railway Co., 852 F.2d
185 (6th Cir. 1988) .......................................................  22

Bazemore v. Friday, 478 U.S. 385 (1986) ...............  12, 25-26

Benson v. General Motors Corp., 716 F.2d 862 (11th 
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, 33

41, 42
Cates v. Trans World Airlines, Inc., 561 F.2d 1064 

(2d Cir. 1 9 7 7 )..................................................................  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. 1 985)...............................................  27

De Graffenreid v. General Motors Assembly Division,
558 F.2d 480 (8th Cir. 1977) ....................................... 27

Delaware State College v. Ricks, 449 U.S. 250
0 ^ 8 0 ) ............................................................................  passim

Del Costello v. Teamsters, 462 U.S. 151 (1983) . . . .  19

EEOC  v. Westinghouse Electric Corp., 725 F.2d 211 
(3d Cir. 1 9 8 3 )..................................................................  27

iii



IV

P»ge<»):
Engelhardt v. Consolidated Rail Corp., 594 F.Supp.

1157 (N.D.N.Y. 1984), affid, 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. A T & 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), afifid mem., 767 
F.2d 925 (7th Cir. 1985) .........................................  22

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,
392 U.S. 481 (1 9 6 8 ).................................................. 26

Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982) .........................................................................  13, 26

H ill v. A T& 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 (1 9 6 4 ).................  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

v

Pagt(«):
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 (8th 
Cir. 1977)........................................................................... 27

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) .. 24

Mohasco Corp. v. Silver, H I  U.S. 807 (1980) ................  14

Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir.
1978) .................................................................................  27

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)___  41

N LR B  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
(6th 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



VI

Page(s):
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

(,97?) ...........................................................................  16,31,32,
37, 42

United Airlines, Inc. v. Evans, 431 U.S. 553
0 9 7 7 ) ............................................................................ passim

Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th 
Cir. 1982).....................................................................  24 27

Woodward v. Lehman, 111 F.2d 909 (4th Cir 
1983) ............................................................................' 24

Wygant v. Jackson Board o f  Education, 476 U.S. 267
0 9 8 6 ) ............................................................................ 13, 32

Zangrillo v. Fashion Institute o f  Technology, 601 
F. Supp. 1346 (S.D.N.Y.), a ffd  mem., 788 F.2d 2 
(2d Cir. 1 9 8 5 )................................................................... 27

Zipes v. Trans World Airlines, Inc., 455 U S 385 
0 9 8 2 ) ............................................................................ 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.

§ I6° (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):
118 Cong. Rec. 7167 (1972).........................................  27

110 Cong. Rec. 7207 (1964).........................................  3 j

110 Cong. Rec. 7217 (1964).........................................  31

Other Authorities:

G. Bloom & H. Northrup, Economics o f  Labor Re­
lationships (1977) ......................................................  j5

F. Elkouri & E. Elkouri, How Arbitration Works 
(4th ed. 1 9 8 5 )............................................................. 32

F. Harbison, Seniority Policies and Procedures as De­
veloped Through Collective Bargaining (1941) . . .  15

J. Lapp, How to Handle Problems o f  Seniority 
0 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 (1 9 3 7 )............................................................. 15

Union Contract Clauses (CCH) (1954)...................... 15

vii



No. 87-1428

IN TH E

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM , 1988 

PATRICIA A. LORANCE, et al.
Petitioners,

AT&T TECHNOLOGIES, INC. and 
LOCAL 1942, INTERN ATION AL BROTHERHOOD 

O F 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 of limitations, 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.



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.' 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, H 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 ”).

3

HH 6(a), 8. Approximately 1100 of these 1500 union members are 
women. R.68B 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 “Tester Universe.” J.A. 18- 
19, mi 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. 19-20,1) 13; R.68B-1, Ex. 15. 
It is undisputed that these educational and testing requirements 
are job-related. R.68A at 11-12; R.68B 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, U 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 “olf 
the street (and by a “few males” who first held lower-graded 
non-tester jobs). J.A. 19, U 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, H 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 18-19, 161.



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, 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. 
C ert 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.
A I &T agreed to provide an “open laboratory” training program 
or production employees who desired to become testers. J.A. 54- 

55, J M. Employees who successfully completed this program 
would receive three hours of college credit, which could qualify
l. ^ te!np0yee t0 take the Momgornery Electronics Test. Id. 
AT&T also agreed to continue counseling those employees train­
ing to become testers. J.A. 55, fl 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-

5

tional requirements affecting promotion to the higher tester

ATjJ t  /  A 5 l 5u 54' ^  A^ ’ H ’ K’ L The a8reement required 
A I& 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,3 which concededly are all 
job-related for the higher grades of testers. J.A. 57-58- R.68A at 
18; R.68B at 92; R.68C at 156. Although exceptions were made 
tor two of the petitioners,* 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.68A at 20- 
R.68B 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, H 17; J.A. 45-46; J.A. 51, fl A (l). It 
provided that all employees at Montgomery Works would receive 
two seniority dates. The first, based on plant-wide seniority cov- 
emed all benefits, all layoffs, and job movements within the pro­
duction grades, and the second, a tester date, governed eligibility 
tor 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, fl B; R.68B-1, Ex.

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-
;irT.A.i™r B‘sk pr°8rammi"«. w  n -  co™™,” .
„ ? er , ner L° rance became a 38 grade ‘ester and petitioner King a 
J7 grade tester prior to completing the module training program J A
2; f3;h™  ,9ita);(b)̂ R-68C at 157-60= R-68B-i> i; r iIf the modules had not yet been completed successfully, promotions 

plet.orfj3! 3"? H Ve W° Uld *  conditioned uP°n their successful com-



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.68B 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.68B 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.68B 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.

6Petitioner 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, flU 19(a)-(c).

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.68B 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.68B 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 1, 1979.7 As petitioners’ complaint asserts, the 
1979 changeover to a departmental seniority system immediately 
affected female testers and non-testers alike, in three separate 
ways.8

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, correlatively, would be 
more susceptible to downgrades if there was a lack of work). J.A. 
21-25, HU 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,9 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.

8As 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.



8

they were promoted less quickly10 (and denied some promotions 
altogether). J.A. 22-24, UK 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, 1ffl 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, “ [already 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.68B at 118 (petitioner 
Lcranee). 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.

10Petitioner Lorance worked her way up from a 35 grade tester in 
1978 to a 38 grade tester. J.A. 22, H 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, fl 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.68B at 12, 74 R.68C at 
39, 154-56.

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.12 
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 testers 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, H 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,ffl] 6(b), (f); 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

12Petitioner King was downgraded from a tester Grade 37 to a Grade 
36 position on August 23, 1982 (J.A. 23, K 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, K 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, U 19(c).



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, 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,13 
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.68B 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

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).

11

subsequent dates and that petitioners had “sat on their [Title VII] 
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 filed 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 nondiscriminatorily 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 peti­
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



12

the tester job classification, stating “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 O F 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 VII’s 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

13

(1986); Havens Realty 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” ( Wygant 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.



14

ARGUMENT
Introduction

The 180-day14 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, “ [djetermining 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;15 they

l4In 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- 
(Footnote continued on next page)

15

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, J. Lapp, 
How to Handle Problems o f 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.

16As economists and others recognize, employers generally “prefer[ ] 
the smallest possible seniority districts” (G. Bloom & H. Northrup, 
Economics o f 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 o f Seniority 43 (1946); accord; F. Harbison, Seniority 
Policies and Procedures as Developed Through Collective Bargaining 23 
(1941); Union Contract Clauses (CCH) (1 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.41 (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).

18Unlike 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)



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.

19In Section 703(h) of Title VII, Congress made it explicit it did not 
intend to permit the routine and nondiscriminatory 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, 211 (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.

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

21Contrary 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.



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)

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 effect 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 (“NLRA”) and to employees’ “hybrid” suits for breach of 
collective bargaining agreements under § 301 of the Labor Management 
Relations Act (“LMRA"). 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)



20

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 “convertfed]” into “something illegal” was by litigating 
events outside the limitations period: Le., 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 o f 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).

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 o f  the agreement is a continuing violation is to 
support a lifting o f  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)



22

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 & 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 (UA W, 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 plaintiffs 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), ajfd  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).

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 
257-58.27 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 dts- 
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)



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 plaintiffs 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. AT&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)

25

At the same time, the Court recognized that the seniority 
system did give “present effect 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 
afford 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. Bazemore 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.



26

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

27

EEOC’s proposed rule,29 this unchallenged principle is the basis 
for each other court of appeals decision that petitioners cite.30 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.31

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).

30Johnson v. General Electric, 840 F.2d 132 (1st Cir. 1988); Stoller v. 
Marsh, 682 F.2d 971, 978-79 (D.C. Cir. 1982); EEOC v. Westinghouse 
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. 1982); Furr 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), rev'd, 
456 U.S. 63 (1982).

31See, 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 Grajfenreid v. General Motors Assembly Division, 558 F.2d 480 (8th 
Cir. 1977); Zangrillo v. Fashion Institute o f Technology, 601 F.Supp. 
1346 (S.D.N.Y), affid mem., 788 F.2d 2 (2d Cir. 1985).



28

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

29

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 for 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 & 
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 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.” 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)



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.

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.33 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 O f 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.34 Section 703(h) was added to Title

33No such problems arise when challenges are filed to seniority 
systems that are facially unlawful. As explained above, these challenges 
do not present staleness 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.

34As 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 n.16 (1976).



32

VII to codify this intent,35 and 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 ‘lies 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 “securing] the prized right of seniority in case of layoff 
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).

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)38 *, the 
1979 “change-over” to a departmental system depleted 
petitioners’ seniority, and petitioners’ complaint demonstrates it

38Contrary 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 Chardon v. Fernandez. 454 U.S. 6, 8 
(1981).



34

was 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)3’; ancj 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 VII40, 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. Patterson, 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 66. 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)( 1), (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).

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

4iIn arguing that American Tobacco adopted the opposite position, 
EEOC (Br., p. 21) relies on the Court’s statement that “[t]he 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).



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 pro 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.

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

“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); Trans World Airlines, 
Inc. v. Hardison, 432 U.S. 63, 81-83 (1977) (refusing to require excep­
tions to seniority system to accommodate religious requirements).



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 plaintiff’s 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 application] 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 of 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 (Brennan, J., 
dissenting) (emphasis in original); see also id. at 83 n.8.

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



40

acts occurring outside the 180-day statute of limitations period 
are “ lawful,” effectively immunize any neutral seniority system 
from challenges that are not timely filed:

“ 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) ”defin[es] 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)

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. Satty, 434 U.S. 136 (1977), there was no 
possible staleness problem because the system, on its face, was not

(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 fides 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 peutral seniority systems were illegally 
adopted after Title VII took effect. See 456 U.S. at 90 n.7 (Stevens, J., 
dissenting).



42

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 45-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.

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 355-56.49

Similarly, no statute of limitations issue was raised in Pullman- 
Standard v. Swint, 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 
\ . Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)), nothing 
this Court said in Teamsters or Swint 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.

"’Moreover, 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.

50Teamsters, 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”).



44
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 fo r  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. De Roos

Attorneys fo r  A T& T

January 26, 1989

APPENDIX
STATISTICS OF BUREAU OF 

NATIONAL AFFAIRS
ON DEPARTMENTAL SENIORITY SYSTEMS



Contracts With Departmental Seniority

In d u s try
T o ta l

C o n tra c ts
D e p a r tm e n ta l

S en io rity P e rc e n ta g e

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
Leather 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: Caution should be exercised in the 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 may 
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.

Copyright © 1968 by Th* Bureau of Nation*! Affairs, Inc.



1.

/

I

' f

No. 87-1428

3n  tf)e Supreme Court of tfje Uniteb stated
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

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

ON WRIT 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

Charles Fried 
Solicitor General

DONALD B. AYER 
Deputy Solicitor General

Richard J. Lazarus 
Assistant to the Solicitor General 
Department o f  Justice 

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

Charles A. Shanor 
General Counsel 

Gwendolyn Young Reams 
Associate General Counsel 

Vincent J. Blackwood 
Assistant General Counsel

DONNA J .  BRUSOSKI 
Attorney \
Equal Employment Opportunity ■ ,

Commission
Washington, D.C. 20507



QUESTION PRESENTED

Whether in the case o f  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) o f  Title VII o f  the Civil Rights Act o f  1964, 
42 U.S.C. 2000e-5(e), begins to run when the employee is 
first notified o f  the demotion, rather than when the 
employer first adopted the seniority system or when the 
employee first became subject to it.



TABLE OF CONTENTS

Page
Interest of Amici C uriae.............................................................. l
Statement .....................................................................................  2
Summary of argum ent.................................................................  7
Argument:

In a Title VII challenge to the application of an allegedly 
discriminatory seniority system, the “unlawfulU 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 II ...................................................... 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 results....................  22

Conclusion ...................................................................................  25

TABLE OF AUTHORITIES
Cases:

Abrams v. Baylor College o f  Medicine, 805 F.2d 528 (5th
Cir. 1986)...........................................................................  14

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982).. 18, 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

( H I )



IV

Cases —Continued: Page
Bartell v. Berlitz School o f  Languages o f  America, Inc.,

698 F.2d 1003 (9th Cir.), cert, denied, 464 U.S. 915
(1983)................................................................................. 14

Bazemorev. Friday, 478 U.S. 385 (1986)............................ 10, 15
Chardon v. Fernandez, 454 U.S. 6 (1981).......................... 17
Cook v. Pan 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. AT& 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 /Iss’n o f  Machinists v. NLRB, 362 U.S. 411

(I960).................................................................................  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

V

Cases-Continued: Page
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 Air 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 etseq ................................................................  13-14

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
etseq ....................................................................................  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).................................... 1
§ 706(e), 42 U.S.C. 2000e-5(e).................................... passim
§ 706(0, 42 U.S.C. 2000e-5(Q...................................... 4
§ 706(0(1), 42 U.S.C. 2000-5(0(1).............................. 1
§ 717, 42 U.S.C. 2000e-16............................................ 1

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 etseq ..........................................
42 U.S.C. 1983 .....................................................................  17

Miscellaneous:

llOCong. Rec. 7213(1964).................................................. 21
110 Cong. Rec. 12723(1964)................................................ 21
118 Cong. Rec. 7167 (1972).................................................. 11
118 Cong. Rec. 7364(1972).................................................. 11



Miscellaneous-Continued: Page

F. Harper, F. James, & O. Gras, 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

VI 3)n tfje Suprem e Court of tfje SUmteb S ta ted
O ctober  T er m , 1988

No. 87-1428

P a tricia  A . L o r a n c e , et  a l ., petitio n ers  

v.

A T& T T e c h n o lo g ies , In c ., et a l .

ON WRIT 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

INTEREST OF AMICI CURIAE

This case concerns the timeliness o f  employment dis­
crimination charges filed with the Equal Employment O p­
portunity Commission (EEOC) pursuant to Title VII o f  
the Civil Rights Act o f  1964, 42 U.S.C. 2000e et seq., 
where the basis o f  the charge is an employee’s demotion 
resulting from  the application o f  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 o f  Title VII (see 
42 U.S.C. 2000e-5(a) and (0(0)- In addition, the federal 
government is covered by Title VII in its capacity as the 
nation’s largest employer (42 U.S.C. 2000e-16). Hence, the 
resolution o f  the issue presented in this case will directly

(1)



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 o f  the United States and the EEOC as amici 
curiae in support o f  the petition for a writ o f  certiorari.

STATEMENT

1. Petitioners Patricia A. Lorance, Janice M. King, 
and Carol S. Bueschen are hourly wage employees at the 
Montgomery Works plant o f  respondent AT&T Tech­
nologies, Inc. (AT&T), in Aurora, Illinois.1 They are also 
members o f  respondent Local 1942, International 
Brotherhood o f  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 (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 “ 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 o f  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.

3

the collectively bargained seniority system applicable to 
the Montgomery Works plant to provide that promotions 
and demotions o f  testers with less than five years o f  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 (J.A. 
21)); plant-wide seniority continued to govern all other 
matters, including, for example, lay-offs and determina­
tion o f  benefits (Pet. App. 16a). The new seniority plan 
was known as the “Tester Concept” (id. at 4a).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 (ibid.).

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 
(ibid.).3 4 Petitioners would not have been demoted if 
AT&T had implemented the reduction in force on the 
basis o f  each petitioner’s plant-wide seniority (ibid.). 
Within 300 days o f  their demotions, petitioners filed ad­
ministrative charges with the Equal Employment Oppor­
tunity Commission (EEOC) claiming that their demotions 
violated Title VII o f  the Civil Rights Act o f  1964, 42 
U.S.C. 2000e et seg.* 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 IS, 1982, and Bueschen was 
downgraded a second time on January 23, 1984. Pet. App. 17a.

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).



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 o f  
Illinois pursuant to Section 706(0 o f  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. 5 14 (J.A . 20)). They also allege 
that application o f  this provision has had the effect o f  
favoring male testers over female testers (id.  ̂ 18 (J.A. 
21-22); see also id. 1 6 (0  (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 o f  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) o f  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.l).

‘ 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 Vll’s 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, 19a-20a 
n.3).

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 o f  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 “ [i]f we were to hold that each 
application o f  an allegedly discriminatory seniority system 
constituted an act o f  discrimination, employees could 
challenge a seniority system indefinitely” (id. at 8a). Like 
the district court, however, the court o f  appeals also re­
jected AT&T’s argument that the “ adoption” o f  the 
seniority system constituted the relevant act that triggered 
the running o f  Title VII’s limitations period (ibid.). A c­
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 o f  Title VII” by 
providing future employees with no recourse against a 
seniority system they thought discriminatory (ibid.).

The court o f  appeals determined that to strike a 
“ balance that reflects both the importance o f  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 o f



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 (ibid.). See note 4, supra*

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 o f  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. Ibid.9

• 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 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.*).

7

SUMMARY OF ARGUMENT

Under Section 706(e) o f  Title VII o f  the Civil Rights Act 
o f  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 o f  their demotions. In this 
respect, challenges to the application o f  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 o f  the discriminatory policy.

Neither United Air Lines, Inc. v. Evans, 431 U.S. 553 
(1977), nor Delaware State College v. Ricks, 449 U.S. 250 
(1980), suggests otherwise. Those cases stand for the prop­
osition that Title VIPs limitations period is not measured 
from the date o f  the application o f  employment policies 
(including seniority systems) that merely perpetuate the 
consequences o f  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) o f  Title VII, 42 U.S.C. 2000e-2(h), does not 
mandate the application o f  more restrictive statute o f  
limitations principles to challenges to the application o f 
discriminatory seniority systems. Section 703(h) simply re­
quires an employee to include in his proof o f  unlawful 
discrimination a showing o f  actual intent to discriminate 
on the part o f  those who negotiated or maintained the 
system. It does not suggest that only the adoption o f  the 
seniority system, as distinguished from its specific applica­



8

tions to define employees rights, can be an “ alleged 
unlawful employment practice” that triggers the running 
o f  Section 706(e)’s limitations period. In this case, 
therefore, Section 703(h) does not shift the focus o f  peti­
tioners’ discrimination claim away from respondent 
AT&T’s current application o f  its seniority system.

Finally, the date on which the application o f  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 o f  a seniority system’s adoption 
cannot be correct. 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 o f  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 o f suing their employer 
before they could know if they would ever suffer any con­
crete injury from operation o f  the seniority system.

9

ARGUMENT

IN A TITLE VII CHALLENGE TO THE APPLICATION OF 
AN ALLEGEDLY DISCRIM INATORY 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) o f  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)).10 If the unlawful practice at issue in this case 
“ occurred” on the date o f  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).



10

EEOC within 300 days thereafter (see notes 3, 4, supra). 
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 o f  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 o f  either o f 
those events. Hence, “ [djetermining the timeliness o f  (their 
charges] * * ♦ requires us to identify precisely the ‘unlaw­
ful employment practice’ o f  which [they] com plain!].” 
Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).

A. The Limitations Period for Filing a Title VII Charge Com­
mences Each Time a Discriminatory 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 o f  favoring male 
testers over female testers. We agree with petitioners that 
their charges were timely filed because the date o f  their 
demotions was the date on which this “ alleged unlawful 
employment practice occurred,” within the meaning o f 
Section 706(e). Each application o f  a discriminatory 
seniority system to alter an employee’s employment status, 
like each application o f  a discriminatory salary structure 
to determine an employee’s weekly pay check, “ is a wrong 
actionable under Title VII.” Bazemore v. Friday, 478 U.S. 
385, 395 (1986).11 * It is no bar to the bringing o f  a challenge

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

11

to the current application o f  an allegedly discriminatory 
seniority policy that previous applications o f  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. C f. id. at 395-396 
n.6. As this Court explained in Bazemore, 11 an employ­
ment policy or practice “ that would have constituted a 
violation o f  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 the extent an employer con­
tinued to engage in that act or practice, he is liable under 
that statute” (id. at 395 (emphasis supplied)).13

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.).

11 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



12

T o similar effect is this Court’s decision in Havens Real­
ty Corp. v. Coleman, 455 U.S. 363 (1982), a case brought 
pursuant to the Fair Housing Act o f  1968, 42 U.S.C. 3601 
et seq., challenging a continuing pattern, practice, and 
policy o f  unlawful racial steering in real estate sales. In 
Havens Realty, the Court concluded that the 180-day 
limitations period for a judicial enforcement action then 
established by Section 812(a) o f  the Fair Housing Act (42 
U.S.C. 3612(a)) did not begin until the “ last asserted oc­
currence o f  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” o f  a discriminatory policy is also the only applica­
tion o f  that policy alleged by the plaintiff, Havens Realty 
seems clearly to indicate that the statute begins to run 
from that event.'5

decisions should be in any way circumscribed by the extension of 
the time limitations in this subsection. Existing case law which 
was (s/c) 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 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 Stat. 
1619, § 8, 102 Stat. 1625, 1633. The 1988 legislation also reaffirmed

13

Finally, decisions o f  this Court raising analogous limita­
tions issues but arising in nondiscrimination contexts like­
wise support our view. See, e.g., Hanover Shoe, Inc. v. 
United Shoe Machinery, Corp., 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.”); Zenith Radio Corp. 
v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971) (“ In 
the context o f  a continuing conspiracy to violate the anti­
trust laws, * * * each time a plaintiff is injured by an act o f  
the defendantsf,] a cause o f  action accrues to him to 
recover the damages caused by the act and * * *, as to those 
damages, the statute o f  limitations runs from the commis­
sion o f  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 o f appeals have con­
sistently held “ that the application o f 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 o f  the statute o f  limitations.” Johnson v. 
General Electric, 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.” H.R. Rep. 
100-711, 100th Cong., 2d Sess. 33, 39 (1988) (footnote omitted; em­
phasis added); see 102 Stat. 1625, 1633.

14 The limitations periods for suit challenging continuing tortious 
conduct is similarly measured. See Restatement (Second) of Torts
§ 899 comment c (1979); 1 F. Harper, F. James, & 0. Gray, The Law 
o f  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'Grady, No. 87-1996 (7th Cir. Sept. 12, 
1988), slip. op. 5 n.7 (mandatory retirement policy; Age Discrimina-



14

2. Contrary to the court o f  appeals’ decision, this 
Court’s decisions in United Air Lines, Inc. v. Evans, 431 
U.S. 553 (1977), and Delaware State College v. Ricks, 449 
U.S. 250 (1980), do not support a different result in this 
case.11 In both o f  those cases, the Court held that the

tion in Employment Act of 1967 (ADEA), 29 U.S.C. 621 el 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 o f  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. Weslinghouse 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 o f  Languages o f  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); Croslandy. 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. 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); 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. IT T  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

15

plaintiffs were not challenging any current discrimination 
because, the Court explained, employment practices that 
merely perpetuate the consequences o f prior discrimina­
tion but are not themselves discriminatory do not con­
stitute actionable wrongs under Title VII. See Ricks, 449 
U.S. at 257 (“ If Ricks intended to complain o f  a discrim­
inatory discharge, he should have identified the alleged 
discriminatory acts that continued until, or occurred at the 
time o f, the actual termination o f  his employment.” ); 
Evans, 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- 
discriminatory reason.” ); see also Bazemore, 478 U.S. at 
396 n.6 (distinguishing Evans) (“ Because the employer was 
not engaged in discriminatory practices at the time the 
respondent in Evans brought suit, there simply was no 
violation o f  Title VII.” ).

In the absence o f  an allegation o f  current discriminatory 
conduct, the Court concluded in both cases that the ap­
plicable charge-filing limitations period began to run on 
the date o f  a prior, allegedly discriminatory act. Thus, in 
Evans, 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.



16

employee was allegedly discharged in violation o f  Title VII 
and not when, after she was subsequently rehired, the 
employer applied the provisions o f  the seniority system to 
deny her credit for prior years o f  service or for years she 
presumably would have served had she not been discrim- 
inatorily discharged (431 U.S. at 557-558). Likewise, in 
Ricks, the limitations period began to run at the time the 
employer notified the employee o f  his denial o f  tenure and 
not when, as the “ inevitable consequence” o f  that denial, 
the employee was later discharged upon completion o f a 
one-year terminal contract (449 U.S. at 256-259). “ The 
emphasis is not upon the effects o f  earlier employment 
decisions; rather it ‘is [upon] whether any present violation 
exists’ ” (id. at 258, quoting Evans, 431 U.S. at 558 (em­
phasis omitted)).

In this case, however, petitioners’ demotions were not 
merely present consequences o f  a previous, time-barred 
discriminatory decision or act. They were instead a direct, 
discriminatory effect o f  the application o f  a seniority 
system that petitioners allege was adopted with a 
discriminatory purpose. Hence, the demotions were 
themselves “ unlawful employment practices”  capable o f 
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

17

more, unlike the discharge in Ricks, petitioners’ demotions 
were not the “ inevitable” result o f  the seniority system’s 
adoption. AT&T’s announcement o f  its seniority policy 
did “ not abundantly forewarnf]” petitioners o f  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 o f  some undefined future adverse 
employment consequences.20 * *

B. Challenges to 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 o f  appeals’ (Pet. 
App. 8a) or respondent AT&T’s suggestion (Br. in Opp. 
5-7) that an especially strict interpretation o f  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 VII’s 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.”).



18

the application o f  a seniority system. Section 706(e) 
nowhere provides that challenges to seniority systems are 
governed by different limitations rules than other types o f 
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 o f  an intention to 
discriminate” (ibid.).

Unlike AT&T, we do not believe that the legal effect o f  
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 o f  unlawful discrimina­
tion a showing “ o f  actual intent to discriminate on * * * 
the part o f  those who negotiated or maintained the 
system.”  Pullman-Standard v. Swint, 456 U.S. 273, 289 
(1982); American Tobacco Co. v. Patterson, 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) (“[IJt shall not be an unlawful employ­
ment practice for an employer to apply * * * different terms, condi­
tions, or privileges of employment pursuant to a bona fide seniority 
* * * system * * * provided that such [differences] are not the result of 
an intention to discriminate * • *.”).

22 The court of appeals never relied on Section 703(h) to support its 
ruling.

2J 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

19

tion o f  the seniority system, as distinguished from its 
specific applications to define employee rights, can be an 
“ alleged unlawful employment practice” that triggers the 
running o f  Section 706(e)’s limitations period.24 Section 
703(h) simply provides that “ (n)otwithstanding any other 
provision o f  [Title VII],” certain employment practices 
shall not be unlawful.25 Because petitioners have alleged 
an “ intention to discriminate”  in the formulation o f  the 
seniority system and a current discriminatory effect from 
the application o f  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 InternationaI 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).

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.

26 AT&T mistakenly relies (Br. in Opp. 7) on International Ass'n o f  
Machinists v. NLRB, 362 U.S. 411 (1960), 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 Labor Rela-



20

Section 703(h)’s limited legislative history likewise pro­
vides no support for AT&T’s view o f  its effect on the run­
ning o f  Title VII limitations periods. As previously re­
counted by this Court, Section 703(h) was part o f  the com ­
promise substitute bill fashioned by Senators Mansfield 
and Dirksen that cleared the way for Title VIPs passage. 
See generally Teamsters, 431 U.S. at 350-353; Franks v. 
Bowman Transportation Co., 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 o f  a bona fide seniority system 
would not be unlawful under Title VII” (Teamsters, 431 
U.S. at 352; see also Franks, 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 Bazemore) 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)).

21

tions periods for such challenges would commence to run 
under Section 706(e). Indeed, in underscoring the 
legitimacy o f  challenges to post-Act “ use” o f  non-bona 
fide seniority systems, the legislative history suggests Con­
gress’s understanding that the application o f  a discrimina­
tory seniority system would itself constitute the “ unlawful 
employment practice” for the purpose o f  triggering Sec­
tion 706(e)’s limitations period. See 110 Cong. Rec. 7213 
(1964) (interpretive memorandum o f  Senators Clark and 
Case) (emphasis added) (“ However, where waiting lists for 
employment or training are, prior to the effective date o f 
the title, maintained on a discriminatory basis, the use o f  
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 o f  
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 o f  a previously 
adopted seniority system may sometimes be open to Title 
VII challenge. See American Tobacco Co. v. Patterson, 
456 U.S. at 69-70 (“The adoption o f  a seniority system 
which has not been applied would not give rise to a cause 
o f  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."); 
Evans, 431 U.S. at 560 (Section 703(h) “ does not foreclose 
attacks on the current operation o f  seniority systems 21 * * * * *

21 “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) (“(TJhe ad­
dition of § 703(h) ‘merely clarifies [Title VII’s] present intent and ef­
fect.’ ”).



22

which are subject to challenge as discriminatory.”); 
Franks, 424 U.S. at 761 (“ [T]he thrust o f  [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 o f  a seniority system is challenged as 
perpetuating the effects o f  discrimination occurring prior 
to the effective date o f  the A ct.” ).

C. Commencement of the Limitations Period Before the 
Challenged Seniority System Is Applied and Injures the 
Employee Would Frustrate Title VII’s Purposes and Lead to 
Absurd Results.

AT&T and the court o f  appeals do not agree on the 
precise date on which Title VII’s limitations period begins 
to run in a challenge to the application o f  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 o f  the remedial 
purposes o f  Title VII.

1. First, as the court o f  appeals itself recognized (Pet. 
App. 8a), AT&T’s view that all challenges to provisions o f 
seniority systems must be brought within 300 days o f  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 o f  [Title VII)” —“ the protection o f  
the individual employee, rather than the protection o f  the 
minority group as a whole” (Connecticut v. Teal, 457 U.S. 
440, 453-454 (1982)) —would be defeated.

23

O f 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 o f  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 o f  “ the difficulty o f  fix­
ing a[] [seniority system’s] adoption date”  (American 
Tobacco Co v. Patterson, 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 o f  the civil rights 
statutes” (Ricks, 449 U.S. at 262 n.16).

2. The court o f  appeals’ substitute proposal — under 
which the limitations period commences to run when the 
employee first becomes subject to the allegedly dis­
criminatory seniority p la n -is  no more tenable. The court 
o f  appeals selected that compromise date in order to strike 
a balance “ between eradicating existing discrimination and 
protecting the [seniority] rights o f  all employees” (Pet. 
App. 8a). As Judge Cudahy explained in his dissent to the 
majority opinion (id. at 10a), however, the court o f  ap­
peals’ ruling fails to serve either o f  those important in­
terests. On the one hand, it undermines its own goal o f  
preventing suits against seniority plans adopted long ago 
by permitting employees not covered at the time o f  a 
seniority system’s enactment to challenge the plan when 
they first become subject to it. On the other hand, the 
court o f  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



*

■ A

No. 87-1428

r

>«■

I n  | h e

Suprem e Court of ttje iHmteb s t a t e s
Oc t o b e r  Te r m , 1988

/-  m m

PATRICIA A. LORANCE, JANICE M. KING, 
and CAROL S. RpESCHEN,

Petitioners,y V1I v.?:,
AT&T TECHNOLOGIES. INC., and LOCAL 1942, 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL 
WORKERS, AFlrCIO,

-i m  Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEAL FOR THE SEVENTH CIRCUIT

B R IEF FOR PETITIONERS

A-
*r

f

$

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•jfc Washington, D.C. 20005

"I. (202) 682-1300

BRIDGET ARIMOND
f , 14 Wpst Erie Street
w Chicago, Illinois 60610

7*

Attorneys fo r  Petitioners 
____ P a t r i o t * ,  Lorance,..jf al.



I

/

I

• U lM «  < *  U

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?



ii

TA3LE OF CONTENTS
Page

QUESTION PRESENTED ............  i
TABLE OF C O N T E N T S.........  ii
TABLE OF AUTHORITIES....... iii
CITATIONS TO OPINIONS BELOW . . 1
JURISDICTION ..................  2
STATUTORY PROVISIONS INVOLVED . 3
STATEMENT OF THE C A S E ...... 4
SUMMARY OF A R G U M E N T.......  21
ARGUMENT...................  2 5
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 ................  25
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 25

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



TA3LE OF AUTHORITIES 
Cases: Pages

iv

Abrams v. Baylor College of 
Medicine, 805 F.2d 528 (5th 
Cir. 1986) ................  47

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)   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

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



Cases Page
vi

Morelock v. NCR Corp., 586 F.2a 
1096 (6th Cir. 1978), cert, 
denied, 441 U.S. 906 (1979) . 45

Nashville Gas Co. v. Satty, 434
U.S. 136 (1977) ............  38

Oscar Mayer & Co. v. Evans, 441
U.S. 750 (1979) ............  46

Patterson v. American Tobacco 
Co., 634 F .2d 744 (4th Cir.
1980), vacated on other
grounds, 456 U.S. 63 (1982) . 46

Pullman-Standard Co. v. Swint,
456 U.S. 273 ( 1982) ........  36,41

Satz v. ITT Financial Corp.,
619 F .2d 738 (8th Cir. 1980) . 47

Sevako v. Anchor Motor Freight,
Inc., 792 F .2d 570 (6th Cir.
1986) ......................  66

Stoller v. Marsh, 682 F.2d 971 
(D. C. Cir. 1982), cert. 
denied, 460 U.S. 1037 (1983) . 47

Taylor v. Home Insurance ComDany,
777 F .2d 849 (4th Cir. 1985),
cert. denied, 476 U.S. 1142
(1986)......................  47, 61

Teamsters v. United States, 431
U.S. 324 ( 1 9 7 7 ) ............  32-36,

59

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 seq.......................

Equal Employment Opportunity 
Act of 1972, P.L. 92-261, 86 
Stat. 103 ..................

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..............

Page

37

17, 40- 
42

47

63

25, 45, 
68

45-46

57, 68 

24, 61 

65

Passim
28 U.S.C § 1254(1) 3



Legislative Authorities:
118 Cong. Rec. (1972)

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) . . . .

Other Authorities:
Bureau of National Affairs,

EEOC Compliance Manual . . . .
General Accounting Office, Equal 

Employment Opportunity - EEOC 
and State Agencies Did Not 
Fully Investigate Discrimina­
tory Charges (1988) ........

Jackson and Matheson, The Con­
tinuing- Violation Theory and 
the Concept of Jurisdiction in 
Title VII Suits. 67 Geo. L. J. 811 (1979) ..................

Laycock, Continuing Violations. 
Disparate Treatment in Compen­
sation, and other Title VII 
Issues, 49 Law and Contemn. 
Probs. 53 (1986) ............

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



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 en 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,

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 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 
organization-



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 init i a l l y  instituted

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 3ueschen 

brought this Title VII action claiming 
that defendants AT&T Technologies, Inc. 
(AT&T or Company) and Local 1942, 
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 
who had r e c e n t l y  prom 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 
300 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.

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- 
paying job grades 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 positions or the selection 
procedures for these positions. Joint App. 18, 32.



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 pro 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.̂  2

2 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.

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



1 0

meetings"3 but "was passed on June 28, 
1979 by a hand vote of 90 to 60, 
reflecting the approximate proportions of 
men and women in attendance." Pet. App. 
16a-17 a ; 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

J 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.

4 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.

11
established a dual seniority system® 
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

The pertinent sections of the 
agreement are as follows: "(1) TERM OF 
EMPLOYMENT of employees in the program, 
for movement of personnel purposes, exceDt 
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.



1 2

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  universe, 
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.

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. App. 
5a.

2. Within 300 days of their job 
demotions,7 * Lorance, Bueschen and King 
filed charges with the Equal Employment

7 Petitioner King was downgraded 
on August 23, 1982, petitioner Lorance on 
November 15, 1982, and petitioner Bueschen 
on November 15, 1982, and January 23, 
1984. 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.



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).

Q The petitioners brought a class 
action but the district court granted 
summary judgment without considering the

(continued...)

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 App. 20-22.

The district court granted the 
Company's motion for summary judgment10 
because it deemed that the petitioners had 
failed to file their administrative 
charges with the EEOC within the 
applicable limitations period established 
by section 706(e) of Title VII, 42 U.S.C.

Q(...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.



16
§ 2000e-5(e).11 The court ruled that the 
time period commences to run from "the 
date [the plaintiffs] were forced to

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 
applies rather than its 300-day 
limitations period, the lower courts did 
not address that issue because under the 
anal 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.

17
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 exceeded the 300-day 
limitations period. Pet. App. 32a-33a 
n . 6.

A l t h o u g h  noting that the 
petitioners' contention 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



18
tester seniority policy was adopted. Pet. 
App. 43a-44a.

4. As did the district court, the 
court of appeals 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

19
favoring the prompt resolution of 
discrimination disputes." Pet. App. 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 system because 
"[rjequiring 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." Ibid. The court believed 
that it had "str[uck] a balance that 
reflects both the i m p o rtance  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.



2 0

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. 
Ibid.

The Seventh Circuit denied the 
plaintiffs' petition for rehearing and

2 1

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 
1942 to deny job opportunities to 
petitioners because of their gender, AT&T 
and Local 1942 committed an "unlawful
employment practice. As this Court held



2 2

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

23
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



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.

25
ARGUMENT

FEMALE WORKERS MAY FILE A TIMELY TITLE VII 
CHARGE WITHIN 300 DAYS OF THEIR JOB 
DEMOTION DUE TO THE OPERATION 0? 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 the Date of that Harm.
1. Section 706(e) of Title VII

requires that a worker alleging
discrimination file a charge with the
Equal Employment Opportunity Commission
"within three hundred days after the
alleged unlawful employment practice
occurred...." (Emphasis added); see, n.
11, supra. The filing of a timely charge
is a requirement for filing a lawsuit in
federal court.^

In Zloes 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...)



26
A T & T  com 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

1 2 (...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."

27
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



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 to 
deprive any individual 
of 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

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 703(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



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 
charge w i t h i n  3 00 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

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



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 
oerpetuation of prior discrimination by a 
seniority system which adversely affected 
the opportunities of black workers was 
illegal.

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  t he 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

33
e f f e c t s  o f the earl 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

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 § 7 0 3 ( h ) , t h e  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 inte n t i o n  to 
discriminate...." Teamsters. 431 U.S. at
353, quoting section 703(h).

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...."

35
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.

Pursuant to the analysis in 
Teamsters, the Court would have held the 
operation of the seniority system at issue 
in Teamsters an "unlawful employment 
practice" if the system had been
established or maintained with an intent



36
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, 456 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

14 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.

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) ("[Ajbsent 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 ther a particular contractual 
provision15 was part of a seniority system

1 5 The provision afforded greater 
benefits to "permanent" than to

(continued...)



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.

In Nashville Gas Co. v. Satty, 434 
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.

39
such seniority forfeiture by employees 
returning 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



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. However,

Evans had been forced to resign 
by United Air Lines' policy of refusing to 
employ pregnant stewardesses. After 
rehire, Evans complained that the company 
discriminated against her by failing to 
count her seniority from her prior 
employment.

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. Swint. 
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...)



42
The decision in United Air Lines 

follows from the Court's interpretation of 
section 703(h) in Franks v. 3owman 
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 discriminatorily denied hire after 
the effective date of Title VII. In so 
doing the Court concluded that § 703(h) is

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.

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 
op eratlon of a seniority system is 
challenged as perpetuating the effects of 
discrimination occurring prior to the



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, supra; 
Trans World Air Lines v. Hardison, supra; 
California Brewers Association v. Bryant, 
supra; American Tobacco Co. v. Patterson, 
supra; Pullman-Standard Co. v. Swint, supra.

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] 
applied. . . . " Cook v. Pan American 
Airways, Inc.. 771 F.2d 635, 646 (2d Cir.
1985), cert, denied. 474 U.S. 1109
(1986).*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 seq.
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. 
Zipes v. Tran3 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...)



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 Cir. 1980), vacated on
other grounds, 456 U.S. 63 (1982).

"Most circuit courts have . . . 
rejected [the Seventh Circuit's] analysis 
[in Lorance ] . 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, 19

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....").

47
682 F . 2d 971, 978-79 (D.C. Cir. 1982),
cert. denied. 460 U.S. 1037 (1983); EEOC
v. Westinghouse Electric Corp.. 725 F.2d 
211, 219 (3d Cir. 1983), cert. denied, 469 
U.S. 820 (1984); Taylor v. Home Insurance 
Company. 777 F . 2d 849, 856 (4th Cir.
1985), cert, denied, 476 U.S. 1142 (1986); 
Abrams v. Baylor College of Medicine. 805 
F.2d 528, 534 (5th Cir. 1986); Satz v. ITT 
Financial Corp.. 619 F.2d 738, 743-44 (8th 
Cir. 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 Cir. 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 
employer continues to apply the 
discriminatory policy ... to a point



48
O  Qwithin the relevant filing p e r i o d w 

B . The E f f e c t i v e  and Efficient
ImDlementation of Title VII Requires
that a Worker Be Permitted To File a
Timelv Charge from the Date the
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 
perspective." 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 ureau of National Affairs, EEOC 
Compliance Manual at Volume 2, §§ 605.6,
605.7(a), 616.14(b).

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 
detriment of the employee.21

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 
General 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. . . )



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 Ad d . 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 21

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.

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



52
2 2discriminatory practice. ‘

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 22

2 2 Unlike the tenure denial in 
Ricks, which commenced the running of the 
statute 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.

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 "[cjooperation 
and voluntary compliance . . . as the 
preferred means for achieving [Title 
VII's] goal." 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



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,

55
even if you think that you might avoid 
the discriminatory operation of the 
system.23

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 lify 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.



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] maintainf ] 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. Id. at 
851.

Congress did not intend to have 
the charge filing requirements in Title 
VII serve as a shield against any 
challenges to the operation of a 
discriminatory seniority or other system

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

Equal Employment Opportunity Act 
of 1972, March 24, 1972, P.L. 92-261, 86
Stat. 103.



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 erence 
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 
intended 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

25 118 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).

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
conference bill shows,26 the amended

2 6  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 
section-by-section analysis of the 
conference bill submitted to the Senate 
and the House of Representatives. "These 
analyses are particularly relevant as they 
reoresent 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 
y. 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. . . )



60
section 706(e) was intended to adopt the 
"continuing violation" analysis whereby a 
victim may timely file from the "last 
occurrence" of the unlawful practice.*1 
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 26 27

2 6 (...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.")

2 7  Moreover, it is clear from the 
1972 amendment to § 706(g), 42 U.S.C. § 
2 0 0 0 e-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, 422 U.S. 
at 410 n. 3.

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 8 The Fair Housing Act Drovision, 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 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.



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 
violation' ... 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 
limitations] disappears." Ibid . 
Moreover, to "ignore[ ] the continuing 
nature of the alleged violation . . .

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 Coro, v. Hazeltine 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



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 
emoloyee 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 , Laycock, Cont inuinq 
Violations. D isparate Impact in 
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 Ass1n 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 Opp. 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

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 Itself is illegal, 
not just the manner by which it was



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

67
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 section-by-section 
analysis of the conference committee bill 
which was enacted into law, there was an



68
explicit recognition that courts should 
apply the Title VII filing requirements in 
view of the fact tha: "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
(1972); 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

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 
layperson 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



70
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 H0LTZMAN

NAACP Legal Defense and 
Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301Washington, 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



No.

In T he

Supreme Court of tfje ©ntteb S ta te s
October  T e r m , 1987

Patricia A. Lorance, et al.,

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

Juuus 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

PRESS OF BYBON 8. ADAMS, WASHINGTON, D.C. (202) J47-OM



QUESTION PRESENTED

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



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-

TABLE OF CONTENTS

Page
QUESTION PRESENTED ............  i
PARTIES IN THE COURT BELOW . . .  ii
TABLE OF CONTENTS........... iii
TABLE OF AUTHORITIES....... v
OPINIONS BELOW ................  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

iii



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 . . . .  28

CONCLUSION....................  43

Appendix
Order of the Court of
Appeals for the
Seventh Circuit ..........  la
Opinion, Court of 
Appeals for the
Seventh Circuit ..........  3a
Memorandum Opinion and
Order, United States
District Court for the
Northern District of
Illinois..................  12a
Report and Recommendation,
United States Magistrate . . 34a

iv

TABLE OF AUTHORITIES

Case:
Abrams v. Baylor College of
Medicine, 805 F.2d 528
(5th Cir. 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* 3140, 41
Association Against 
Discrimination in Employment, 
Inc. v. City of Bridgeport, 
6 4 7 Fi2d^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



Cases 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

vi

PageCases
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 J,6th Cir . 1978), 
cert, denied, 441 U.S. 906 
(1979) ........ is
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

v i i



Cases P a g e

Reed v. Lockheed Aircraft 
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)..........  9

Taylor v. Home Insurance 
Company, 777 F.2d 849 
(4th Cir. 1985), cert. 
denied, 106 S. Ct.
2249 (1986) ..............
Teamsters v. United States,431 U.S. 324 (1977) . . . '
Trans World Airlines, Inc. 
v. Hardison, 432 U.S. 63 (1977) ........
United Air Lines, Inc. v. 
Evans, 431 U.S. 553 (1977) .
Valentino v. United States 
Postal Service, 674 F.2d 56 (D.C. Cir. 1982)

19, 35 

16, 41

40, 41 

29, 33, 41

21

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

v i i i

Cases Page
Zenith Radio Corp. v.
Hazeltime Research, 401U.S. 321 (1971)............  34

Zipes v. Trans World Airlines,
Inc., 455 U.S. 385 (1982) . . 1 7 , 36, 41

Cgnstitution^__statutes and r„ i.c .
28 U.S.C. § 1254 (1 ) . . . .  3

Age Discrimination in 
Employment Act of 1967,
29 U.S.C. §§ 621 et seq. . . i4 ( 17

Fair Housing Act of 1968,
42 U.S.C. §§ 3601 et seq. . . 3 4 , 35
Title VII "of the Civil 
Rights Act of 1964y 42 
U.S.C. §§ 2000e et seq. . . . Passim

OtherAuthorities:
Bureau of Labor Statistics 
U.S. Dept, of Labor Bull.
No. 1425-11, Administration
g f_ S e n i o r i t y  (1972) . . . . . 4 0 , 41

Bureau of National Affairs,
ILEQC,Compliance Manual . . .  27
2 Collective Bargaining 
Negotiations and Cont
(BNA> ...................... ..

ix



Page
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

No.

IN THE
UNITED STATES SUPREME COURT 

October Term, 1987

PATRICIA A. LORANCE, et al^,
Petitioners,

v s .

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 
al., 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.



2
OPINIONS BELOW

The opinion of the court of appeals 
is reported at 827 F.2d 163 and is set 
out at pp. 3a-11a of the Appendix. The 
order denying rehearing, which is not 
reported, is set out at la-2a. The 
district court's memorandum opinion and 
order, dated August 2j6, 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 

was entered on August 2̂ , 198». 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 ) .

STATUTORY 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 
- - Jjire ... 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



4
organization-

(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 
em 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 initially

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 CASE 
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 ca l  1942, 
International Brotherhood of Electrical 
Workers Instituted a seniority system 
discriminatorily 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 because 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



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.



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 
lower-paying, junior positions, and 
Bueschen was demoted to a non-tester

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

* ' " -i
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 v ic tims 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.



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, but 
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

v «s»
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.



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 facially-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 6 seniority system or entitlement to
retirement benefits, constitutes an
actionable wrong from which an employee
may file a timely administrative charge.5

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



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 pa ra te  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 v. 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.

17
plaintiff on each occas ion when the 
merged seniority list was applied...." 
(Emphasis added), Cook v. Pan American 
World Airways, Inc., 771 F . 2d 635, 646
(1985) , cert. denied, 106 S. Ct. 895
(1986) .8 Similarly, the Sixth Circuit

8 A l t h o u g h  C o o 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 
Discrimination in Employment, Inc, v. 
City of Bridgeport, 647 F.2d 256, 274
(1981) , cert^ 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, Zlpes v. T rans World 
Airlines , 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 Mayer & Co. v. Evans, 
441 U.S. 750, 756 (1979). See 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....")



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 
Corjp^, 586 F . 2d 1096, 1103 (6th Cir. 
1978), cer̂ t_̂  denied. 441 U.S. 906 (1979).

The Fourth Circuit ruled that there 
are "truly 'continuing1 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 (1982).9

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

19
Accordingly, the Patterson 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 
§ 703(h). American Tobacco Co. v.
Latterson, 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), cert. 
denied, 106 S. Ct. 2249 (1986); Crosland
v. Charlotte Eye, Ear and Throat 
Hospital, 686 F.2d 208, 212 (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.

e_Electr j c Corn.. 725 F.2d 
211, 219 (1983), cert_._ denied. 469 U.s.
8 2 0  (1984). in Lorance, the Seventh
Circuit holds that each application of a

21

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

Furthermore, the First Circuit

10 Two circuits have held that each
f , /  PhraCtlC* "<« -«a!neSconsti?uti! bargaining agreementThP n l  neW vlolati°n of Title VIItha district of Columbia Circuit ruled

e v V i u a t L n 36 ^  the Army of «e v a l u a t i o n  r e p o r t  w h i c h  w a s
niwCr\lm1lna-t°rlly PrePared constituted a
was Drtn rf6Ven th°Ugh the evaluation was prepared outside of the filinrr
n “ -7 d9- 682  F . 2 d  V 7" 9

i°h”  (\9h > - ; : ; lay fa
i  i F i o » T  w ipt rhe %ehn:ruling that tha use o f a
establi”shntt0ry supervlsorY rating does establish a present violation. See alsoVa le ntino v. U n it.a States

Sid
U ^ t h i V i 0"t°f “ "'aY"iaie„aa oryrpo?lcJ (in this instance the exclusion of Jewish
Saud?Cianl-fr0m servln9 in a program in 
Sf n d| |Arabla)' Abrams v * Bavlor Colleo* of_Medicine, 805 T ^ d  528, 534 ( I s I e N ®



22

recently specifically rejected the 
Seventh Circuit's decision in Lorance and 
approved the Third Circuit's decision in 

-*nghouse Electric Corp . Johnson v. 
gener_a_l Electric. No. 87-1752, slip op. 
at 7-8 (February 22, 1988). The First
Circuit concluded that the decision in 
kPXance 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 v̂ _Baylor College of Medicine. 805
F . 2d 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,

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 , E EO C v . 
Westlnqhouse 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. 
Johnson v. General Electric, slip op. at 
10 ("[I]t is questionable whether an
action by .an employee who has not yet 
suffered'spy injury as a result of a 
discriminatory system is sufficiently

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 
(19 8 3) , 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. 
section II, infra.

See.



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

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 fashign a remedy and determine 
damages." Furr v. AT&T Technologies, 
Inc. , 824 K .2d 1537, 1543 (1987); see 
also, Williams v. Owens-Illinois, Inc., 
665 F . 2d 918, 924-25 (9th Cir.), cert. 
denied , 459 U.S. 971 (1982); Reed v. 
Lockheed Aircraft Corp., 613 F .2d 757, 
759-60 (9th Cir. 1980); Satz v. ITT 
Financial Corp., 619 F.2d 738, 743-44 
(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.



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. 13 This confusing task is 
compounded by the significant number of * * *

 ̂ ?_eJ® ' E E O C  D i r e c t i v e sTransmittal, 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.

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.1*

In order to provide guidance for its 
staff the EEOC has p r ep a re 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 Loranc e decision 
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 Annual 
Report at 20-21. (This is the most 
recent Report prepared by the EEOC).

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



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

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 Coliege 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 Circuit 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 (1 977). 1 6 Moreover, the 16

16 In Uni t e d_A ir 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.



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

7 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 
r eq ui re  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.

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. " Ajn_ericaji Tobarrn r0 . V- 
P_a.tters.o_n , 4 5 6 U.S. at 69. The
"discriminatory effect arise[s] only when 
the system is put into operation...." 
I_d. In California Brewers Associationjy. 
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 
1 0 years prior to the filing of the 
complaint was bona fide and lawful. See
— — ' Nashville Gas Co, v. Satty, 4 3 4



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 long-established 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.

33
Also, the Seventh Circuit's reliance 

upon Delaware State College v. Ricks, 
supra, is misplaced. Ricks complained 
that he was discriminatori1y 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

'  v
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.*9

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



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^
yh A_t ed_Shoe Machinery, Inc. , 3 92 U .sT
481, 502, n .15 (1968); see also, Zenith
Egdi o— Cor p._v , Hazeltime 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 Laycock, Continuing
Vi o 1 at i g_nSj D i s p a r a t e__Impact in
Compensation, and Other Title VII Issues, 
49 Law and Contemp. Probs. 53 (1986).

1968,20 
similar

35
a civil rights statute closely 
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 Co. , 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

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." Cf̂ ., Griggs v. Duke^gower^Cg^, 
401 U.S. 424 (1971). Under Loranpe, 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.



38
seniority system or transfer to another 
^ e P a r tment, 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 
Loranee, 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 prance 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. 
General Electric, slip op. at 10. It is 
especially inappropriate to require

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- 
Denver Co., 415 U.S. 36, 44 (1974).

Moreover, the Seventh Circuit fails 
to accomplish its purported goal of 
encouraging prompt litigation over newly

v .

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



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 "[sjeniority 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 
Transportation Co., 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

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 Tobacco Co. v. 
P a t t e r s o n , 4 5 6 v 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).

23 Franks v. Bowman Transportation
Co
supra; 
Trans

United Air Lines v. Evans, supra;
World Airlines, Inc. v. Hardison,

supra; Cali fornia Brewers Association v.
Bryant , supra; Z ipes v. Trans World
Airlines, Inc., supra; American Tobacco
Co. v . Patterson, supra; Pullman-Standard
Co. v. Swint, supra.



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.

43
CONCLUSION

For the above reasons a writ of 
certiorari should issue to review the 
judgment and opinion of the Seventh 
Circuit.

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



appendix



la

UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 
CHICAGO, ILLINOIS 60604

October 30, 1987.
Before

Hon. William J. Bauer, Chief Judge 
Hon. Richard D. Cudahy, Circuit Judge 

Hon. Joel M. Flaum, Circuit Judge

PATRICIA A. LORANCE, 
JANICE M. KING, and 
CAROL S. BUESCHEN,

piaintiffs- 
Appellants,

. >
No. 86-2584 vs.
AT&T TECHNOLOGIES, 
INC., and LOCAL 
1942 INTERNATIONAL 
BROTHERHOOD OF 
ELECTRICAL WORKERS, AFL-CIO,

Defendants- 
Appellees.

Appeal from the 
United States 
District Court 
for the Northern 
District of 
Illinois, Eastern 
Division.
No. 83 C 6602 
Harry D. 
Leinenweber,Judge.

O R D E R

On consideration of the petition for 
rehearing and suggestion for rehearing en 
banc filed in the above-entitled cause by 
plaintiffs-appellants , a vote of the active members of the Court was 
requested, and a majority of the active 
members of the Court have voted to deny a



2a

rehearing en banc. * A majority of the 
judges on the original panel have voted 
to deny the petition for rehearing. 
Accordingly,

IT IS ORDERED that the aforesaid 
petition for rehearing be, and the same 
is hereby, DENIED.

* Circuit Judges Cudahy, Easterbrook, 
and Ripple voted to grant rehearing en 
banc.

3a

3n tijc

United States (Jnurt of Appeals
jfar tlje fceuentlj (Circuit

N o. 86-2584

Patricia A . Lorance, J anice M. King, 
and Carol S. Bueschen,

Plaintiffs-Appellants,

v.

A T & T Technologies, Inc. and Local 1942, 
International Brotherhood of E lectrical 
Workers, A F L -C IO ,

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Illinois, Eastern Division. 

No. 83 C 6602—Harry D. Lelnenweber, Judge

A r g u e d  A p r il  24, 1987—D e c id e d  A ug u st  19, 1987

B efore Bauer, C hief Judge, and Cudahy and F laum, 
Circuit Judges.

F laum, Circuit Judge. T h e p la in tiffs are fem ale  hourly  
w age w orkers em ployed  by AT& T T echnologies. B etw een  
1978 and 1980, th e  p la in tiffs w e r e  requ ired  to  surren der  
th e ir  p lant-w ide sen io r ity  in ord er to  b e  p rom oted  to  th e  
position o f “te s te r ,” a com paratively high-paying job  which  
had cu stom arily  b een  held  by m en. In 1982, A T & T  re­
duced its  em ploym ent force. In carrying out its  reductions, 
AT& T considered only  th e  sen iority  th at the plaintiffs had 
accrued during  th e  tim e th a t th ey  had b een  te s te r s . A s



4a

a r e su lt , A T & T  d em o ted  th e  p la in tiffs to  le s s  desirab le  
p osition s. T h e p la in tiffs su b seq u en tly  filed  th is  su it under  
T itle  V II  o f  th e  C ivil R ig h ts  A ct o f  1964, 42 U .S .C . 
§ 2000e - 2000e-17 (1982), a lleg in g  th a t th e ir  dem otions  
constituted  illegal discrim ination based on sex . T he district 
cou rt g ra n ted  su m m ary  ju d g m en t for th e  d efen d an ts on 
th e  ground  th a t th e  p la in tiffs’ claim s w e r e  u n tim ely . W e  
affirm .

I.
T he p la in tiffs, P atr ic ia  A . L orance, Janice M. K ing, and 

Carol S . B u esch en , are hourly w a g e  em p loyees o f  th e  d e­
fen d an t em p loyer , A T & T  T ech n ologies, and are m em bers  
o f th e  defendant union, Local 1942. Lorance and B ueschen  
h ave been  em p loyed  a t A T & T ’s  M ontgom ery W orks facil­
ity  in A urora, Illinois since 1970. K ing began w ork at that 
fa cility  in 1971. A t  th e  tim e th e  p la in tiffs b egan  th eir  
em p lo y m en t a t  M on tgom ery  W orks, sen io r ity  w as calcu­
la ted  on a p lan t-w id e b asis. P rom otions and dem otions  
w ith in  th e  hourly w a g e  jo b s  a t th e  facility  w ere  based  
on p lan t-w id e sen io r ity .

A m o n g  th e  hourly  w a g e  jo b s a t M ontgom ery W orks is 
a ca teg o ry  o f  jo b s  co llec tiv e ly  know n as th e  “ te s te r  uni­
v e r s e .” T h ese  p o sitio n s  are  am ong th e  h igh est-p ay in g  
hourly w a g e  jo b s a t  th e  facility . A lthough  th e se  positions  
trad ition a lly  had b een  filled  b y  m en, b y  1978 an in creas­
in g  num ber o f  w om en  had u sed  th e ir  p lant-w ide sen ior­
ity  to  obtain  jo b s  a s  te s te r s . In  la te  1978, th e  p la in tiffs’ 
union en tered  into d iscu ssions w ith  AT & T concerning the  
sen io r ity  ru les  g o v e r n in g  th e  te s te r  p osition s. T he em ­
p lo y er  and th e  union u ltim a te ly  d evelop ed  a proposal, 
know n a s  th e  “ T e s te r  C on cep t.” U n d er  th is  plan, once  
an em p lo y ee  b ecam e a te s te r , prom otions and dem otions  
w ere  to  b e based  on th e  len g th  o f  tim e th at th e  em p loyee  
had b een  a te s te r  (“ te s te r  sen io r ity ”), rath er than on the  
len g th  o f  tim e  th e  em p lo y ee  had been  a t th e  M ontgom ery  
W orks facility .

5a

T he T e s te r  C on cept w a s e x te n s iv e ly  d iscu ssed  at a 
ser ies  o f union m eetin gs. On June 28, 1978, the union held  
a special m eetin g  to  v o te  on the T e ster  C oncept. T he plan 
w as approved  by a  m argin o f  n in ety  v o te s  to  s ix ty —ap­
p rox im ately  th e  ratio  o f  m en  to  w om en . A ll th ree  p lain­
tiffs  a tten d ed  th e  m eetin g , and v o ted  a ga in st th e  plan. 
On July 23, 1979, th e  union and th e  em ployer en tered  into  
a le t te r  o f  a g reem en t ad op tin g  th e  T e s te r  C oncept.

A t th e  tim e  th e  T e s te r  C on cept w a s adopted , Lorance  
w as em ployed  as a  te s ter . K ing w a s prom oted to  a te s te r  
position  in F eb ru ary , 1980. B u esch en  obta in ed  a te s te r  
job  in N o v em b er , 1980. B y  th e  su m m er o f 1982, Lorance  
and K ing had b een  p rom oted  to  sen ior  te s te r  positions. 
A t th a t tim e, A T & T  b egan  a reduction  in force, w hich  
it  conducted  in accordance w ith  th e  term s o f  th e  co llec­
tiv e  bargain in g  a g reem en t. B ased  on  th e ir  t e s te r  sen ior­
ity , L orance and K ing w e r e  d em oted  to  low er-paying , 
m ore ju n ior  te s te r  positions.'vB ueschen  w as d em oted  to  
a n on -tester  job . T h e plaintiffs a llege  th a t th ey  w ould  not 
have been  dem oted  had th e  decision  b een  based  on plant­
w id e sen ior ity .

On April 13, 1983, L orance and B u esch en  filed  com ­
plaints w ith  the E qual E m ploym ent O pportunity Com m is­
sion . K ing filed  a com plaint w ith  th e  C om m ission  e ig h t  
d ays la ter . A fter  ob ta in in g  righ t-to-su e le t te r s , th e  p lain­
tiffs brought th is action on S ep tem b er 30, 1983. T he plain­
tiffs a lleged  that th e ir  dem otions v io lated  T itle  V II. T h ey  
also sought certification  o f a  c la ss con sistin g  o f  all w om en  
em p lo y ees  a t  th e  M ontgom ery W orks facility  w h o e ith er  
w ere  te s te r s  and had lo st  th e ir  p lant-w ide sen ior ity , or  
w ho had b een  d eterred  from  becom ing te s te r s  becau se  o f  
th e  req u irem en t th a t th ey  g iv e  up th e ir  p lant sen iority . 
T he defendants m oved  for sum m ary judgm en t on th e  ground  
that the p laintiffs’ su it w as tim e-barred. T he d istrict court 
gran ted  th e  d efen d a n ts’ m otion , hold ing th a t th e  lim ita­
tion s period  had b eg u n  a t th e  tim e th e y  kn ew  or  should



6a

h a v e  know n th a t th e y  had lo s t  th e ir  p lant-w ide sen ior­
ity . T h e p la in tiffs  th e n  b rou gh t th is  ap p ea l.1

II .

T itle  V II  cla im s b rou gh t in Illino is are gen era lly  subject  
to  a 300-day period  o f lim ita tion . See 42 U .S .C . § 2000e-5(e) 
(1982).2 In  ord er to  sa tis fy  th e  tim elin ess  req u irem en t, a 
p la in tiff m u st a lleg e  th a t a specific  action  tak en  by the  
d efen d an t during th e  p reced in g  300 days v io la ted  T itle  
V II. See Nazaire v. Trans World Airlines, 807 F .2d  1372, 
1376 (7th C ir. 1986), cert, denied, 107 S .C t. 1979 (1987). 
A  claim  is  n o t tim ely  i f  it  m ere ly  a sser ts  th at a d iscrim ­
in atory  a ct th a t occurred  prior to  th e  lim itations period  
had an e ffe c t  th a t occurred during th e  lim itations period. 
See id.

1 The district court granted summary judgment without first con­
sidering the plaintiffsr motion for class certification. This is a viola­
tion of Federal Rule of Civil Procedure 23, which requires the 
district court to decide the question of class certification “as soon 
as practicable,” Fed. R. Civ. P. 23(cXl). Although a district court’s 
deliberate decision not to certify a class deprives us of appellate

iurisdiction, Glidden v. Chromalloy American Corporation, 808 
p-2d 621 (7th Cir. 1986), we are not deprived of jurisdiction in 

a case, such as the present one, in which the district court in­
advertently does not act on the certification motion, see Bennett 
v. Tucker, No. 86-2628, slip op. at 5-6 (7th Cir. Aug. 11, 1987). 
Nonetheless, this case illustrates the problem that may arise when 
a court does not comply with Rule 23. Because the district court 
did not decide the class certification motion, we do not know who 
is bound by our judgment This may raise a significant res judicata 
problem in any future litigation that may arise out of the defen­
dants’ administration of tne tester seniority system.
* The 300-day limitations period is based on the fact that Illinois 
has a state agency to which employment discrimination complaints 
may be referred. In states that do not have their own agencies, 
the deadline is only 180 days. See 42 U.S.C. § 2000e-5(e) (1982). 
The defendants argue that because the plaintiffs did not make use 
of the existing state procedures, the 180-day period applies. How­
ever, we need not resolve this question, because the plaintiffs’ 
claims are untimely under either standard.

D eterm in in g  w h eth er  a p la in tiff is  ch a llen g in g  an act of 
discrim ination , ra th er  than  th e  e ffe c ts  o f  a prior act o f  
discrim ination , is  e sp ec ia lly  im p ortan t w h en  sen io r ity  
sy s te m s  are  in vo lved . T h is is b eca u se  a sen io r ity  sy stem  
m ay p erp etu a te  th e  e ffe c ts  o f  a  p a st  a ct o f  d iscrim ina­
tion . F o r  exam p le , in United Airlines v. Evans, 431 U .S . 
553 (1977), th e  defendant fired  th e  p la in tiff for a discrim i­
natory reason , b u t la ter  rehired her. H ow ever, th e  defen­
dant did not g iv e  th e  plaintiff sen iority  cred it for the four- 
y ea r  period during w hich  sh e  had b een  ou t o f  w ork. A s  
a resu lt, th e  p la in tiff w a s a t a co m p etitiv e  d isad van tage  
in ob ta in in g  sen iority -b ased  b en efits , such  a s  w a g e  in­
crea ses  and prom otions. T h e p la in tiff filed  su it, a lleg in g  
th a t th e  em p lo y er  w a s v io la tin g  T itle  V II . T h e Sup rem e  
C ourt n o ted  th a t th e  p la in tiffs  fir in g  had b een  an act o f  
discrim ination , w hich th e  p la in tiff could  have co n tested  
w ith in  th e  lim ita tion s period . H o w ev er , th e  C ourt w en t  
on to  hold th a t th e  d isa d v a n ta g es th a t th e  em p lo y ee  in­
curred b eca u se  o f  h er  lo ss  o f  sen io r ity  w ere  m ere ly  th e  
e ffec t o f th e  prior d iscrim ihatory fir in g . See id. a t 558.

T h e p la in tiffs in  th is  ca se  arjgue th a t th e ir  dem otions  
co n stitu ted  a c ts  o f  d iscrim ination . T h ey  recogn ize th a t, 
under Evans, the fact that a sen iority  sy stem  perpetu ates  
th e  e ffec t o f  prior d iscrim ination  d o es n o t co n stitu te  an 
act o f  d iscrim ination . H o w ev er , th e y  argu e th a t Evans 
does not apply in th is case, because A T & T  and Local 1942 
a lleg ed ly  adopted  th e  sen ior ity  sy ste m  for th e  v ery  pur­
p ose o f  discrim inating. T he p laintiffs contend th at the con­
tin u ed  ap p lica tion  o f an y  in ten tio n a lly  d iscrim inatory  
sen iority  sy ste m  con stitu tes  a  continu ing violation o f T itle  
V II. See Patterson v. Am erican Tobacco Company, 634  
F .2d  744, 750-51 (4th Cir. 1980), vacated on other grounds, 
456 U .S . 63 (1982); cf. M orelock v. N C R , 586 F .2 d  1096, 
1102-03 (6th Cir. 1978), cert, denied, 441 U .S . 906 (1979) 
(operation  o f d iscrim inatory  sen io r ity  sy s te m  co n stitu tes  
on goin g  v io la tion  und er A D E A ). T h erefore , th e y  reason , 
each  action tak en  p ursuan t to  th e  sen io r ity  sy ste m  th at  
d isad van tages an em p loyee  co n stitu tes  an act o f  discrim i­
nation.



8a

A lth ou gh  th e  p la in tiffs’ argu m en t is logically  appealing, 
w e  are com p elled  to  r e je c t  it. I f  w e  w ere  to  hold th a t  
each  application  o f  an a lleg ed ly  d iscrim inatory sen iority  
sy s te m  co n stitu ted  an a ct o f  d iscrim ination , em p lo y ees  
could challenge a sen iority  sy stem  indefinitely. T his would  
run counter to  th e  stron g  policy favoring the prom pt reso­
lution o f d iscrim ination  d isp u tes. See Delaware State Col­
lege v. Ricks, 449 U .S . 250 , 259-60 (1980). T h is policy is  
especially  im portant w h ere  seniority sy stem s are involved. 
I f  a court fin d s th a t a  sen io r ity  sy s te m  w as adopted  for  
a d iscrim in atory  p u rp ose , it  m ay be ob ligated  to  order  
drastic  re stru c tu r in g  o f  th e  sy ste m . See, e.g., Teamsters 
v. United States, 431 U .S . 324, 371-77 (1977). T h e longer  
a p laintiff d elays, th e  m ore difficult it becom es for a court 
to  craft r e lie f  th a t s tr ik e s  th e  critical balance b etw een  
erad ica tin g  e x is t in g  d iscrim ination  and p ro tectin g  th e  
righ ts o f  all em p loyees. A ccordingly, w e  cannot accept the  
p la in tiffs’ su g g e s tio n  th a t any a d v erse  action tak en  pur­
suant to  an a lleged ly  discrim inatory sen iority  sy stem  con­
s t itu te s  an act o f  d iscrim ination .

T h e d efen d a n ts  a rg u e  th a t th e ir  adoption o f th e  T ester  
C oncept co n stitu ted  th e  re lev a n t a ct th a t tr ig g ered  the  
period  o f  lim ita tion s. H o w ev er , w e  m u st a lso  re jec t th is  
p osition . A t  th e  t im e  th e  d efen d an ts adopted  th e  T ester  
C oncept, neith er  K in g nor B ueschen  w ere  testers . W e can 
se e  no reason w h y th ey  should have been required to con­
te s t  a  sen io r ity  sy s te m  th at did not apply  to  th em . R e­
qu irin g  em p lo y ees  to  c o n test  any sen ior ity  sy s te m  th at  
m igh t som e day ap p ly  to  th em  w ould encourage n eed less  
litigation . M oreover , v iew in g  th e  adoption o f a  d iscrim i­
n atory  sen io r ity  sy s te m  a s  th e  a ct o f  d iscrim ination  th at  
tr ig g e rs  th e  lim ita tio n s period  w ould  fru stra te  th e  re ­
m edial policies th at are th e  foundation o f T itle V II. U nder  
th is  approach, an y  sen io r ity  sy s te m  w ould  b e  im m une to  
ch a llen ge  300 d a y s  a fte r  i t s  adoption. F u tu re  em p lo y ees  
w ould th ere fo re  h a v e  no recou rse  w h en  confronted  w ith  
an e x is t in g  sen io r ity  sy s te m  th a t th e y  b e liev e  to  b e d is­
crim inatory.

9a

W e b e liev e  th a t it  is  e ssen tia l to  s tr ik e  a  balance th a t  
r e flec ts  both th e  im portance o f  e lim in atin g  e x is t in g  d is­
crim ination , and th e  n eed  to  in su re  th a t claim s are filed  
as prom ptly  as p ossib le . W e th ere fo re  conclude th a t th e  
re lev a n t d iscrim inatory a ct th a t tr ig g e rs  th e  period o f  
lim ita tion s occurs a t th e  tim e  an em p lo y ee  b ecom es su b ­
je c t  to  a facia lly-neutral b u t d iscrim in atory  sen io r ity  
sy s te m  th a t th e  em p lo y ee  k n ow s, or reason ab ly  should  
know , is  d iscrim inatory. W e em p h asize  th a t our holding  
is  a  narrow  one. W e recogn ize  th a t an act o f  d iscrim i­
nation  m ay occur w h en  an em p lo y er  a c ts  pursuant to  a 
sen io r ity  sy s te m  th a t is  facia lly  d iscrim inatory. See Bart- 
m ess v. Drewrys, U .S .A ., 444 F .2 d  1186 (7th Cir.), cert, 
denied, 404 U .S . 939 (1971). A  v io lation  m ay a lso  occur  
w h ere  an em p loyer  u se s  a n y  d iscretion  th a t it m ay have  
und er a co llective  b argain in g  a g reem en t in a d iscrim ina­
tory  m anner. See generally Stewart v. CPC International, 
679 F .2d  117, 120-21 (7th C ir. 1982) (per curiam) (d iscuss­
in g  variou s “ continu ing  v io la tio n ” th eories).

In th is case, th e  em ployer com plied fully w ith  th e  facial­
ly -neutral sen ior ity  sy s te m . A lth ou gh  th e  p la in tiffs w ere  
aw are o f  th e  p o ten tia lly  d iscrim inatory  im pact o f  th is  
sy s te m  at th e  tim e th e y  b ecam e su b ject to  it ,3 th ey  did 
n ot file  ch arges w ith  th e  E E O C  for  period s ranging from  
tw o-and-a-half to  f iv e  y e a r s  a fter  A T & T ’s a lleged ly  d is­
crim inatory act. T his is w ell beyond the 300-day m axim um  
th a t T itle  V II  req u ires. A ccord in g ly , w e  m u st conclude  
th a t th e  p la in tiffs’ claim s are tim e-barred . T he decision  
o f  th e  d istr ic t court is, th ere fo re , Affirmed.

8 On appeal, the plaintiffs suggest that a genuine issue of material 
fact exists as to when they became aware that they had lost their 
plant-wide seniority. However, the affidavits that the plaintiffs sub­
mitted to the district court conclusively prove that the plaintiff's 
were aware that they had forfeited their plant-wide seniority on 
the day they became subject to the Tester Concept.



10a

Cudahy, Circuit Judge, dissenting:
I am  w h olly  in sy m p a th y  w ith  th e  m ajority ’s ob jective  

o f  ob ta in in g  a p rom pt reso lu tion  o f ch a llen ges to  sen ior­
ity  sy s te m s. T h is is  co n s is ten t w ith  th e  Su p rem e C ourt’s 
policy concerns in United Airlines, Inc. v. Evans, 431 U .S . 
553 (1977) and Delaware State College v. Ricks, 449 U .S . 
250 (1980). U n fortu n ately , I do n ot b e liev e  th e  m ajority’s  
resu lt h ere  fu rth ers th is  o b jective . T h ere  are a lm ost cer­
tain to  b e o th er m em b ers o f  th e  class w ho are not barred  
by th e  sta tu te  o f  lim itations and w ho can bring challenges  
to  t e s te r  sen io r ity  in th e  fu tu re . P erh ap s th is  is  w h y  the  
d efen d an ts h ave n ot argued  in supp ort o f  th e  resu lt reached  
b y  th e  d istr ic t court and affirm ed here; th e  defen dants  
have argu ed  in stea d  for th e  d ate  o f  adoption o f th e  
sen io r ity  plan as tr ig g e r in g  th e  s ta tu te  o f lim ita tion s—an 
outcom e that w ould e ffectively  imm unize th e  seniority sy s­
tem  from  fu tu re  ch a llen ges.

T h e p la in tiffs  h ave a lleg ed  th a t th e  sen ior ity  sy stem  in 
q u estion  w a s  d iscrim inatory  in  purpose and e ffec t. The  
m ere fact th a t it  w as n ot facially discrim inatory does not 
seem  to  m e re levan t for purposes o f  th e  sta tu te  o f  lim ita­
tion s. See Bartm ess v. D rew rys U .S .A ., Inc., 444 F .2d  
1186 (7th Cir.), cert, denied, 404 U .S . 939 (1971). T he plain­
tiffs  filed  com p lain ts a t  th e  tim e th ey  w ere  injured (by  
d em otion) in th e  w a y  th e  d efen d an ts a lleged ly  intended  
th em  to  b e injured. V iew ed  in that d irect and uncluttered  
fash ion , th e ir  com p lain ts w e r e  tim ely .

T he m ajority says th a t th e  plaintiffs are too la te  because  
th e y  k n ew  ea r lier  th a t th e y  had b ecom e su b ject to  the  
a lleg ed ly  d iscrim inatory  sy s te m . A t  th is  ear lier  tim e, 
h o w ev er , th ey  had n ot rea lly  b een  injured and m ight 
n ev er  b e injured. T he m ajor ity ’s  ru le, th erefore, m ay en ­
courage p rem atu re la w su its .

C a ses  such  as Evans, supra, on w hich  th e  m ajority  
r e lie s , did n o t in v o lv e  sen io r ity  sy s te m s  th a t w ere  th em ­
se lv e s  a lleged  to  b e d iscrim inatory. In  Evans, th e  sen ior­
ity  sy s te m  m erely  m agnified  th e  im pacts o f  o th er  acts al­
leg e d  to  b e d iscrim inatory.

11a

T h erefore , a lthou gh  I th in k  th e  m ajor ity ’s policy  con­
cern s are im portant, th e y  find dubious application  in th e  
resu lt h ere , and I th erefo re  resp ectfu lly  d issen t.

A  tru e  Copy:

T este:

Clerk o f  the United States Court o f  
Appeals fo r  the Seventh Circuit



12a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

PATRICIA A. LORANCE, 
JANICE M. KING and 
CAROL S. BUESCHEN, 
individually and on 
behalf of all others 
similarly situated,

Plaintiffs,
v .

AT&T TECHNOLOGIES, 
INC. and LOCAL 1942, 
INTERNATIONAL 
BROTHERHOOD OF ELEC­
TRICAL WORKERS, 
AFL-CIO,

Defendants.

)
)
)
)
)
)
)
)) NO. 83 C 6602 
)
) JUDGE LEINENWEBER 
)
)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
Plaintiffs, Patricia A. Lorance 

("Lorance"), Janice M. King ("King"), and 
Carol S. Bueschen ("Bueschen") , bring 
this suit individually and on behalf of 
all other similarly situated women
against defendants, AT&T Technologies,

13a

Inc. ("AT&T")1 and Local 1942, 
International Brotherhood of Electrical 
Workers, AFL-CIO. This action is brought 
under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e, et seq.. and
seeks to redress and enjoin unlawful 
discrimination against women employees.

Defendant AT&T has moved for summary 
judgment on the ground that the 
plaintiffs' first amended complaint is 
time-barred under Section 706(e) of Title 
VII, 42 U.S.C. 2000e-5(e). The motion 
was briefed by the parties and was 
referred to the magistrate for a report 
and recommendation. The magistrate 
recommended that the court grant 
defendant's motion for summary judgment.

1 This case was originally styled 
"Georgia Gonzales v. Western Electric 
Co., Inc." Gonzales was voluntarily 
dismissed form the action. Since January 
1, 1984, Western Electric Company, Inc. 
has been known as AT&T Technologies, Inc. 
and the pleadings were amended to reflect the name change.



14a
Plaintiffs filed objections to the report 
and recommendation and defendant has 
responded to plaintiffs' objections. The 
motion is now ripe for decision. For the 
reasons stated herein, the court declines 
to adopt the magistrate's report but 
grants defendant's motion for summary 
judgment on alternative grounds.

BACKGROUND2
Plaintiffs, Patricia A. Lorance, 

Janice M. King and Carol S. Bueschen are 
hourly-rated employees of defendant 
AT&T's Montgomery Works facility in 
Aurora, Illinois. The facility 
manufactures data sets, circuit packs, 
printed wiring boards and electrical 
components. Montgomery Works' employees 
fall into several categories, one of 
which is hourly-rated graded personnel.

2 The background facts were set 
forth at pp .2-5 of the magistrate's 
report and are repeated here for 
discussion purposes.

15a

!

Hourly wage rates are based on job grades 
so that higher rates attach to the 
higher-graded jobs. The majority of the 
hourly-rated graded jobs are semi-skilled 
positions. Plaintiffs contend that these 
semi-ski ll ed  positions have been 
traditionally filled by women employees.

Within the hourly-rated graded job 
category are jobs called "tester" 
positions that are collectively known as 
the "tester universe." Plaintiffs allege

V
that the tester positions traditionally 
have been view ed  as men's jobs. 
Moreover, plaintiffs claim that tester 
positions were filled either by promoting 
the few men that were located in the 
lower-graded, non-tester jobs or by 
hiring men from outside the plant. In 
1970, women began to infiltrate the 
"tester universe" and become "testers."

I

Plaintiffs allege that in 1979 AT&T 
and the union conspired to manipulate the



16a
seniority system then in effect at 
Montgomery Works by implementing a system 
known as the "Tester Concept" in order to 
protect male testers from women having 
greater plant seniority and to discourage 
women from seeking entry into the tester 
universe. Prior to 1979, all hourly 
inter-grade promotions and displacements 
at Montgomery Works were made on the 
basis of plant seniority. Under the 
Tester Concept, all new entrants, male or 
female, into the tester universe were 
assigned dual seniority dates. The date 
of entry to the tester universe governed 
all upward and downward job movement 
within the tester universe, and plant 
seniority governed all other matters.

The Tester Concept originated with 
the union in late 1978 or early 1979. 
The concept was heatly debated in several 
union meetings and was passed on June 28, 
1979 by a hand vote of 90 to 60,

17a
reflecting the approximate proportions of 
men and women in attendance. On July 23, 
1979, the union and AT&T entered into a 
letter of understanding which made the 
Tester Concept plant policy. This 
agreement was incorporated into the 
master contract between AT&T and the 
union in August, 1980.

On November 15, 1982, plaintiff 
Lorance, while working as a tester, was 
downgraded as part of the company's 
reduction in force policies. Plaintiff 
King was downgraded on August 23, 1982 
and plaintiff Bueschen was downgraded 
first on November 15, 1982 and then 
again, on January 23, 1984. All three 
plaintiffs allege that they would not 
have been downgraded if they could have 
retained their plant seniority when they 
became testers. In addition, plaintiffs 
claim that they were denied promotions to 
which they were entitled as a result of



18a
defendant's manipulation of the seniority 
rules.

On April 13, 1983, plaintiffs
Lorance and Bueschen filed charges with 
the Equal Employment Opportunity 
Commission ("EEOC") claiming that they 
were discriminated against on the basis 
of their sex. Plaintiff King filed her 
charges with the EEOC on April 21, 1983.
On June 24, 1983, the EEOC issued to
plaintiffs Notices of Right to Sue AT&T, 
and less than 90 days later, on 
September 20, 1983, plaintiffs filed
their pro se complaint. Plaintiffs then 
retained counsel and filed their first 
amended complaint on February 14, 1984.
The amended complaint named the union as 
an additional defendant and charged both 
defendants with discrimination on the 
basis of sex.

DISCUSSION
A prerequisite to commencement of a

19a
Title VII action is the timely filing of 
a charge of discrimination with the EEOC, 
42 U.S.C. 2000e(f). "A charge is timely 
if it is filed within 180 days of the 
alleged act of discrimination, except in 
states that, like Illinois, have their 
own agencies for investigating complaints 
of employment discrimination. In these 
states, known as 'deferral' states, the 
filing is expanded to 300 days.3 42

3 T h e  i s s u'e of w h e t h e r  a 
complainant in a deferral state is 
entitled to 300 days if he or she elects 
not to take advantage of the state agency 
has not been decided by the Seventh 
Circuit or this court. As noted in Sere. 
however, several judges in this district 
have held that a plaintiff who fails to 
take advantage of the state agency should 
not be permitted to take advantage of the 
300 day filing period. Proffit v. Keycom 
Electronic Publishing, No. 85 C 3299, 
slip op. at 12-16 (N.D. 111. Dec. 11, 
1985) (dictum); O'Younq v. Hobart Corp., 
579 F. Supp. 418, 421 (N.D. 111. 1983); 
Lowell v. Glldden-Durkee, Dlv. SCM Corp.. 
529 F. Supp. 17 (N.D., 111. 1981); Contra 
Flagg v. Atchison, Topeka & Santa Fe R.R. 
Co. . No. 84 C 10972, slip op. (N.D. 111. 
Dec. 18, 1985). The court specifically 
declines to rule on this point because it 
is not determinative in the instant case. 
See, infra, n.6. The court will refer to



20a

U.S.C. 2000e-5(e)." Sere v. Board of 
Trustees. No. 85 C 7899, slip op. (N.D.
111. February 28, 1986).

Defendant asserts that plaintiffs' 
claims are not timely because the 
discriminatory act complained of, the 
implementation of the "Tester Concept", 
occurred over 180 days prior to the 1983 
filing of plaintiffs' EEOC charges. 
P l a i n t i f f s  argue that continued 
enforcement of a discriminatory seniority 
system is an ongoing violation of Title 
VII that can be challenged at any time 
under the "continuing violation" theory.

The magistrate rejected plaintiffs' 
argument and held that the use of a 
facially neutral seniority system is not 
a continuing violation of Title VII. He 
recommended that the court grant 
defendant's motion for summary judgment 
because plaintiffs failed to file suit

the 180-day period.

21a

within 180 days of the date the seniority 
system was adopted or implemented.4

The court agrees with the magistrate 
that the use of a facially neutral 
s e n i o r i t y  system is not ongoing 
discrimination. However, the court finds 
that the magistrate's use of the "date of 
adoption" of the system for purposes of 
calculating the filing period is 
problematic. Under Evans v. United Air 
Lines, 431 U.S. 553 -J1977), the relevant 
date should be the date of impact or the 
date the plaintiffs knew or should have 
known that their seniority rights had 
been affected by the "Tester Concept".

In Evans, the plaintiff was a flight 
attendant who was terminated in 1968 
pursuant to an United Air Lines policy of 
terminating female flight attendants when 
they married. The policy was adopted

4 The system was incorporated in 
the 1980 union contract. Plaintiffs' 
charges were not filed until April, 1983.



22a

p r i o r  to J u n e  of 1 9 66 and was 
subsequently found to be discriminatory 
ln Sprogis v. United Air Lines. Inc.. 444 
F • 2d 1194 (7th Cir. 1971). United Air 
Lines abandoned the policy ln 1971. 
Evans was rehired by United Air Lines in 
1972 and was classified for seniority 
purposes as a new employee. She filed 
suit to establish her entitlement to 
seniority credit based on her pre-1972 
work with United. She argued that 
United's refusal to credit her with pre- 
1972 seniority constituted a continuing 
violation of Title VII. The Supreme 
Court refused to view United's action as 
a continuing violation and recognized 
that while the neutral seniority system 
did give present effect to a past act of 
discrimination it did not constitute a 
present violation of Title VII, 431 U.S. 
at 558. The court reasoned that a 
challenge to a neutral system may not be

23a

predicated on the mere fact that a past 
event, which has "no present legal 
s i g n i f i c a n c e " , 5 has affected the 
calculation of seniority credit even if 
the past event might have justified a 
valid claim against the employer. Id. 
The court was concerned that "a contrary 
view would substitute a claim for 
seniority credit for almost every claim 
which is barred by limitations. Id.

In EEOC v, Illinois Bell Telephone. 
No. 80 C 2576, slip op. (N.D. 111.
April 1, 1982), the court citing Roberts

5 liL. Justice Stevens stated:
"United was entitled to treat that 

past act as lawful after respondent 
failed to file a charge of discrimination 
within the 90 days then allowed by 
§706(d ) . 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. It may constitute relevant 
background evidence in a proceeding in 
which the status of a current practice is 
at issue, but separately considered, it 
is merely an unfortunate event in history 
which has no present legal consequences".



24a

¥-±— North American Rockwell Corp. . 65 0
P.2d 823, 827 (6th Cir. 1981), recognized 
that defining the legitimate scope of a 
continuing violation theory after Evans 
"requires a court to juxtapose a broad 
remedial reading of Title VII, liberally 
construing the act to encourage the 
eradication of discrimination with a 
narrow interpretation that respects the 
policy underlying the 180-day limitation 
period", that is, "to protect employers 
from the burden of defending claims 
arising from employment decisions that 
are long past." See, Delaware State 
Col.1 ege_v^_Ricks, 44 9 U.S. 2 5 0 , 256-57 
(1980). The court concluded that to 
strike this balance it is necessary in 
every case to determine whether "a 
p r e s e n t  v i o l a t i o n "  e x i s t s  or, 
alternatively, whether the alleged 
discriminatory acts merely "give present 
effect to a past act of discrimination."

25a

Plaintiffs argue that they are 
discriminated on a continual basis due to 
the fact that they surrendered seniority 
to become testers. They allege that they 
have been denied promotions and have been 
downgraded because of the ongoing use of 
the "Tester Concept." They contend that 
a facially neutral seniority system is an 
ongoing violation of Title VII if it was 
designed, operated and maintained with 
the intent to discriminate and can, 
therefore, be challenged at any time.

The court finds, however, that 
although plaintiffs' arguments have 
immediate appeal they must be rejected 
under Evans and its progeny. In this 
case, plaintiffs seek to challenge the 
o n e - t i m e  act of d e f e n d a n t  in 
recalculating their seniority. The gist 
of their argument is that they are 
s u b j e c t  to c o n t i n u o u s  acts of 
discrimination due to the fact that they



26a

lost valuable seniority credit. The 
problem with their argument is that under 
Evans no present violation of Title VII 
exists. Here, the only alleged 
discriminatory act was forcing plaintiffs 
to surrender their plant seniority under 
the "Tester Concept" to become or remain 
testers. The resulting denials of 
promotion and downgradings are present 
effects of the past discriminatory act of 
recalculating seniority credit for 
purposes of promotions or downgradings. 
If the court allowed plaintiffs' claims 
to survive the motion to dismiss as 
untimely, the concerns of the Supreme 
Court in Evans would be realized; 
plaintiffs would be able to substitute 
their claims challenging the mandatory 
surrender of their plant seniority rights 
for a claim for seniority credit. 
Unfortunately, plaintiffs have sat on 
their rights to challenge the fact that

27a

they were forced to surrender their 
seniority under the "Tester Concept".

The c o u r t  doe s  a g r e e  w i t h  
plaintiffs, however, on the issue of the 
applicable date to commence counting the 
180-day period. The magistrate's 
recommendation is rejected insofar as he 
suggests that the time period should 
begin to run from the date the Tester 
Concept was adopted. Three hypotheticals 
presented by plaintiffs illustrate the

’v

inherent inequities in holding that 
plaintiffs must file suit within 180 days 
of the date of adoption or implementation 
of the "Tester Concept". First, 
plaintiffs urge the court to consider the 
effect upon a 25-year old employee of a 
company's adoption of a policy requiring 
all employees to retire at age 65. 
According to the magistrate, plaintiff 
points out, an employee would have to 
challenge the policy at age 25 or 26



28a
despite that fact that it may never 
affect him. Second, plaintiff ponders 
the effect upon an unmarried woman, with 
no plans of having children, of a 
company's policy granting disabled 
employees' greater benefits that those 
accorded pregnant employees. Under the 
magistrate's recommendation, she would 
have to challenge the policy on the date 
she learned of it and not when she was 
denied benefits. Third, plaintiff 
suggests that under the magistrate's 
recommendation a low level employee must 
file a charge of discrimination as soon 
as he or she learns of a discriminatory 
policy affecting only higher level 
employees. Plaintiffs reason that this 
" a w a r e n e s s  of an a p p a r e n t l y  
discriminatory policy which affects any 
job that he seeks but does not yet hold 
is enough to trigger the requirement that 
he file a charge." The hypotheticals

29a
clearly evidence the impracticability of 
requiring plaintiffs to bring suit within 
180 days from the date the policy was 
adopted.

Moreover, not only is the date of 
adoption theory impracticable, it is 
d o u b t f u l  w h e t h e r  any of these 
hypothetical plaintiffs would even have 
standing to sue. 42 U.S.C. 2000e-5(b) 
requires that a person be "aggrieved" 
before he or she can file suit. None of

' v

the hypothetical persons would appear to 
qualify as aggrieved persons. The 
magistrate's recommendation encourages 
people to bring unripe claims alleging 
harms that they may never experience. In 
the instant case, two of the three 
plaintiffs were not "testers" at the time 
of the change in seniority systems. 
Under the magistrate's report these 
plaintiffs would be required to file suit 
prior to the time that they became



30a
testers even though their interest or 
standing at that time was remote or 
peripheral. Such a result will only clog 
the already overburdened courts with 
lawsuits that are not ripe.

The court also finds it significant 
that the Supreme Court did not require 
Evans to bring suit within 180 days of 
the adoption of the discriminatory 
policy. Rather, the focal date of the 
Evans decision was the date Evans was 
discharged. As recognized by the Seventh 
Circuit in Sprogis v. United Air Lines, 
Inc . , 444 F .2d 1194 (7th Cir. 1971), 
United Air Lines, Inc. employed only 
unmarried stewardesses as early as June 
19, 1966, the date Sprogis was 
discharged. Evans was employed as a 
stewardess from November 1966 until 
February 1968. Under the magistrate's 
recommendation, Evans should have brought 
suit within 180 days of the date the

31a
policy was enacted, which was probably 
prior to her first day of work with 
United Air Lines, or she should have 
brought suit when she learned of the 
policy, which would have been the date 
she was hired. Obviously, the Supreme 
Court had little difficulty finding that 
Evans could have challenged her discharge 
by filing a timely charge with the EEOC 
within 180 days from the date she was 
terminated. As discussed above, the 
Supreme Court was concerned because Evans 
allowed the termination claim to go 
stale. The holding of Evans only 
precludes the revival of that stale claim 
and presumably the suit would have been 
timely if the charges were filed within 
180 days of Evans' discharge.

Accordingly, this court agrees with 
the magistrate that plaintiffs were not 
subject to a continuing violation of 
Title VII. However, the court rejects



32a

the magistrate's use of the "date of 
adoption" and finds that plaintiffs' 
claims must be dismissed because they 
failed to file a timely suit within 180 
days of the date they were forced to 
sacrifice their plant seniority rights 
under the "Tester Concept". At that 
point in time plaintiffs had lost a 
valuable employment right. It was 
inevitable that they would be subject to 
downgradings or denial of promotions due 
to their decreased seniority under the 
"tester concept". Since none of the 
plaintiffs filed charges within 180 days 
of the date that they were forced to 
sacrifice their plant seniority.6

6 For plaintiff Lorance, the time 
period began to run on the date the 
Tester Concept was adopted because at 
that time she was a tester and was 
thereby required to sacrifice her non­
tester seniority. For plaintiff King, 
the time period began to run on 
February 25, 1980, the date she became a
tester. For plaintiff Bueschen, the time 
period began to run on November 30, 1980, 
the date she became a tester. See amended

33a

Summary judgment is entered in favor of 
all defendants.7

IT IS SO ORDERED.

________L&L____________________HARRY D. LEINENWEBER, Judge 
United States District Court

DATED: AUG 27 1986

complaint, ¥ 19(a )(b )(c ) . None of the 
plaintiffs filed charges within 300 days. 
See, supra, n.3.

7 The court enters summary judgment 
in favor of Local 1942 sua sponte as 
AT&T's motion is equally effective in 
barring the claim against Local 1942 and 
p l a i n t i f f s  have had an adequate 
opportunity to argue in opposition to the 
motion. See, e.g., Malak v. Associated 
Physicians, Inc., 784 F.2d 277, 280 (7th 
Cir. 1986).



34a

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

PATRICIA A. LORANCE, )
JANICE M. KING and )
CAROL S. BUESCHEN, indi- ) 
vidually and on behalf ) 
of all others similarly ) 
situated, )

)Plaintiffs, )
) NO. 83 C 6602 

v s . )
)AT&T TECHNOLOGIES, INC., ) 

and LOCAL 1942, INTER- )
NATIONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, )
AFL-CIO, )

)Defendants. )

REPORT AMD RECOMMENDATION
TO THE HONORABLE HARRY D. LIENENWEBER, 
one of the Judges of the United States 
District Court for the Northern District 
of Illinois.

This is an action for discrimination 
in employment based on sex brought under 
Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §§2000e - 2000e-17 (1982)

35a
("Title VII"). The Plaintiffs seek, 
individually and on behalf of all other 
women similarly situated, to redress and 
enjoin unlawful discrimination against 
women employees by defendants AT&T 
Technologies, Inc. ("AT&T")* and Local 
1942, International Brotherhood of 
Electrical Workers AFL-CIO ("the union"). 
Defendant AT&T has moved for summary 
judgment on the grounds that plaintiffs' 
first amended complaint is time-barred 
under Section 706(e) of Title VII, 42 
U.S.C. §2000e-5(e).

Summary judgment is appropriate 
where the c o n t r o l l i n g  facts are 
uncontested and when reasonable minds 
could not differ on the inferences 
arising from such f acts. 2 The date of

1 Prior to January 1, 1984,
plaintiffs' employer was known as Western 
Electric Company, Inc.

2 Mull v. Arco Durethene Plastics, 
Inc., No. 85-1023, slip op. at 6 (7th 
Cir. Feb. 24, 1986).



36a

the alleged discriminatory act triggering 
the running of the 180 day filing 
limitations period under Title VII, as 
well as the date when plaintiffs knew or 
reasonably should have known of the 
discriminatory act, can be determined 
conclusively from the record. The 
remaining issue in the case, whether the 
allegedly unlawfully adopted seniority 
s ystem constitutes a "continuing 
violation", is a legal one. Accordingly, 
under these circumstances, summary 
judgment is an appropriate vehicle for 
resolving the case.

I. BACKGROUND.
Plaintiffs Patricia A. Lorance, 

Janice M. King and Carol S. Bueschen are 
hourly-rated employees of defendant 
AT&T's Montgomery Works facility in 
Aurora, Illinois. The facility 
manufactures data sets, circuit packs, 
printed wiring boards, and electric

37a

components . Montgomery Works employees 
fall into several categories, one of 
which is hourly-rated graded personnel. 
Hourly wage rates are based on job 
grades, so that higher rates attach to 
the higher-graded jobs. The majority of 
the hourly-rated graded jobs are semi­
skilled positions. Plaintiffs contend 
that these semi-skilled positions have 
been traditionally filled by women 
employees.

v.
Within the hourly-rated graded job 

category are jobs called "tester" 
positions that are collectively known as 
the "tester universe." Plaintiffs allege 
that the tester positions traditionally 
have been viewed as men's jobs. 
Moreover, plaintiffs claim that tester 
positions were filled either by promoting 
the few men that were located in the 
lower-graded, non-tester jobs or by 
hiring men from outside the plant. In



38a
1970, women began to infiltrate the 
"tester universe" and become "testers".

Plaintiffs allege that in 1979, AT&T 
and the union conspired to manipulate the 
seniority system then in effect at 
Montgomery Works by implementing a system 
known as the "Tester Concept" in order to 
protect male testers from women having 
g r e a t e r  plant seniority, and to 
discourage women from seeking entry into 
the tester universe. Prior to 1979, all 
hourly inter-grade promotions and 
displacements at Montgomery Works were 
made on the basis of plant seniority. 
Under the Tester Concept, all new 
entrants, male or female, into the tester 
universe were assigned dual seniority 
dates. The date of entry to the tester 
universe governed all upward and downward 
job movement within the tester universe, 
and plant seniority governed all other
matters.

39a
The Tester Concept originated with 

the union in late 1978 or early 1979. 
The concept was heatly debated in several 
union meetings, and was passed on 
June 28, 1979 by a hand vote of 90 to 60, 
reflecting the approximate proportions of 
men and women in attendance. On July 23, 
1979, the union and AT&T entered into a 
letter of understanding which made the 
tester concept plant policy. This 
agreement was incorporated into the

s .

master contract between AT&T and the 
union in August 1980.

On November 15, 1982, plaintiff
Lorance, while working as a tester, was 
downgraded as part of the company's 
reduction in force policies. Plaintiff 
King was downgraded on August 23, 1982
and Plaintiff Bueschen was downgraded 
first, on November 15, 1982, and then
again, on January 23, 1984. All three
plaintiffs allege that they would not



40a
have been downgraded If they could have 
retained their plant seniority when they 
became testers. In addition, plaintiffs 
claim that they were denied promotions to 
which they were entitled as a result of 
defendant's manipulation of the seniority 
rules.

On April 13, 1983, plaintiffs
Lorance and Bueschen filed charges with 
the Equal Employment Opportunity 
Commission ("EEOC") claiming that they 
were discriminated against on the basis 
of their sex. Plaintiff King filed her 
charges with the EEOC on April 21, 1983. 
On June 24, 1983, the EEOC issued to
plaintiffs Notices of Right to Sue AT&T, 
and less than 90 days later, on 
September 20, 1983, plaintiffs filed
their pro se complaint. Plaintiffs then 
retained counsel and filed their first 
amended complaint on February 14, 1984.
The amended complaint, named the union as

41a
an additional defendant and charged both 
defendants with discrimination on the 
basis of sex.

II. DEFENDANTS' AND PLAINTIFFS' LEGAL
ARGUMENTS.
Defendant AT&T accurately states 

that §706(e ) of Title VII requires an 
aggrieved person to file a charge with 
the EEOC within 180 days of an alleged 
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 . 3 
Accordingly, argues AT&T, because the 
discriminatory act complained of, the 
July 23, 1979 implementation of the
Tester Concept, occurred over 180 days 
prior to the 1983 filing of plaintiffs' 
r e s p e c t i v e  EEOC d i s c r i m i n a t i o n  
complaints, summary judgment should be 
entered for AT&T and against plaintiffs 
for their failure to comply with the 
Title VII 180 day limitations period.

Plaintiffs advance several arguments

3 See 42 U.S.C. §2000e-5(e).



42a
opposing defendant's motion for summary 
judgment. First, plaintiffs contend that 
the United States Supreme Court has 
rejected the "date of adoption" theory as 
a cognizable challenge to an allegedly 
discriminatory seniority system. Second, 
p l a i n t i f f s  argue that continued 
enforcement of a discriminatory seniority 
system is an ongoing violation of Title 
VII, and can be challenged at any time 
under the "continuing violation" 
doctrine. Third, plaintiffs claim that 
they were not fully aware of the change 
in seniority rules by July 1979, and 
therefore, the running of the 180 day 
limitations period was tolled. Finally, 
plaintiffs maintain that acceptance of 
defendant's date of adoption theory would 
lead to needless litigation.

III. RECOMMENDATION.
The filing of a timely charge with 

the EEOC is a prerequisite to a private

43a
suit under Title VII.* Accordingly, the 
issue presented is whether the plaintiffs 
filed their charges with the EEOC within 
180 days of the allegedly unlawful 
employment practice.

- date of the unlawful employment 
P r . The unlawful employment 
practice complained of was defendants' 
change-over from plant seniority to 
"tester" seniority for the tester 
urî verse > which change was implemented on 
July 23, 1979 through AT&T's and the 
union's letter of understanding of the 
same date. Assuming that the letter of 
understanding did not make the change in 
seniority rules official, the rules 
unquestionably became official plant

 ̂ United Air Lines, Inc, v . Evans, 431 U.S. 553, 555, n. 4 (1977); Lowell v. 
Glldden-Durkee, Div. of SCM Corp.. 529 F. 
Supp. 17, 18-19 (N.D. 111. 1981) (The 
statutory scheme of Title VII confers 
jurisdiction on the federal courts only 
if a charge is filed with the EEOC within 
certain limitation periods).



policy when incorporated into the AT&T- 
union master contract in August of 1980.

The filing dates of the EEOC 
discrimination charges. The pleadings 
indicate that the plaintiffs filed EEOC 
charges in April 1983. Given the fact 
that defendant's alleged unlawful 
employment practice either occurred in 
the summer of 1979, or at the latest 
August 1980, plaintiffs' filing of 
charges in April 1983, greatly exceeded 
the 180 day limitations period. 
Consequently, plaintiffs' EEOC claims 
were not timely filed, and the court is 
without jurisdiction. Therefore, 
defendant AT&T's motion for summary 
judgment should be granted. None of the 
arguments advanced by plaintiffs persuade 
this court to alter its recommendation.

Plaintiffs' argument that summary 
judgment should be denied because use of 
a discriminatory seniority system is an

44a 45a

ongoing violation of Title VII, and, 
therefore, can be challenged at any time 
under the "continuing violation" 
doctrine, is totally without merit. In 
applying the 180 day filing limitations 
period under Title VII, the proper focus 
is on the time of the discriminatory act, 
not the point at which the consequences 
of the act occur.5 It is now established 
law that where a collective bargaining 
agreement and its enforcement are both 
neutral on their face, and the 
discriminatory act complained of is the 
time-barred unlawful execution of the 
agreement, a Title VII employment 
d i s c r i m i n a t i o n  case c a n n o t  be 
established. As stated by the Supreme 
Court, "[m]ere continuity of employment, 
without more, is insufficient to prolong 
the life of a cause of action for

5 Mull v . Arco Durethene Plastics, 
Inc., No. 85-1023, slip op. at 6 (7th 
Cir. Feb. 24, 1986) .

I



46a
employment discrimination."6 Application 
of the "continuing violation" doctrine to 
Title VII cases involving neutral 
seniority systems and the time-barred act 
of the s y s t e m ' s  d i s c r i m i n a t o r y  
implementation has been firmly rejected 
by the S u p r e m e  C o u r t . 7 It is

6 Delaware State College v . Ricks, 
449 U.S. 250, 257 (1980).

7 See United Air Lines, Inc, v. 
Evans, 431 U.S. 553, 560 (1977) (a 
challenge to a neutral seniority system 
may not be predicated on the mere fact 
that a past event which has no present 
legal significance has affected the 
calculation of seniority credit, even if 
the past event might at one time have 
justified a valid claim of discrimination 
against the employer). See also, Bertheas 
v. Trans World Airlines, Inc., 450 F. 
Supp. 1069 (E.D.N.Y. 1978) (where the
alleged discriminatory act is the actual 
change in s e n i o r i t y  systems and 
challenges to this act are time-barred, 
no present violation of Title VII exists 
by virtue of the application of the new
s e n i o r i t y  system, which is not 
discriminatory on its face, so as to 
validate plaintiff's otherwise untimely 
EEOC charge under the theory of
"continuing violations") and Grimes v. 
Louisville and Nashville R. Co. , 583 F. 
Supp. 642, 647 and 648 (S.D.Ind. 1984)
(the simple act of being laid off due to 
a lack of seniority is not of itself

47a
unfortunate, but plaintiffs have slept on 
their Title VII rights and cannot now 
revive them by means of the "continuing 
violation" doctrine.8 * * *

Plaintiffs' knowledge of the change 
in seniority rules. Plaintiffs' sworn 
statements contained in their affidavits

unlawful, and to allow plaintiff to cloak 
with illegality his layoff by reliance 
upon earlier events which are now time- 
barred would result in the revival of 
what are now legally defunct claims).

8 Plaintiffs' argument that the 
Supreme Court has rejected the contention 
t h a t  p e r s o n s  a g g r i e v e d  by a 
discriminatory seniority system must file 
EEOC charges within 180 days of the 
adoption of the challenged system 
(characterized by plaintiff as a "date of 
adoption" theory), is but another way of 
advancing its "continuing violation" 
argument, and is rejected on the same 
grounds as noted above. The cases cited 
by plaintiffs do not support this 
position.

Plaintiff's argument that this "date 
of adoption" theory leads to needless 
litigation is but yet another collateral 
challenge to established Supreme Court 
decisional law rejecting application of 
the "continuing violation" theory to 
neutral seniority system, and is 
rejected.



48a
that they were not fully aware of the 
change In seniority systems until the 
time of their downgradings, is not 
supported by the record. Plaintiffs' 
deposition testimony contradicts their 
affidavits. In plaintiff King's 
deposition, she admits that she was aware 
that tester seniority was in effect when 
she became a tester in 1980.9 In 
addition, all three plaintiffs were 
present at the June 1979 union meeting 
where the change in seniority systems was 
approved.^  Furthermore, plaintiff 
Lorance acknowledged that she felt 
discriminated against on the basis of her 
sex at the June 1979 meeting.11 Finally, 
the change from plant to tester seniority 
was incorporated into the master contract

9 King Dep. 122-123.
10 Lorance Dep. 98; Bueschen Dep. 

40; King Dep. 102.
11 Lorance Dep. 118.

49a
between AT&T and the union in August of 
1980 and, thus, was published to the 
world.12 A violation of Title VII occurs 
and triggers the 180 day time limit for 
filing EEOC charges when the employee 
knew or should have known that she was 
discriminated against.13 The uncontested 
facts show that plaintiffs either knew or 
should have known by August 1980, at the 
latest, that tester seniority was 
official company policy.

IV. CONCLUSION.
This court finds that plaintiffs did 

not file their EEOC charges within the 
180 day statutory time period of Section 
706(e) of Title VII. Consequently, 
plaintiffs' claim is time-barred. 
Therefore, it is recommended that

12 Defendants' Reply Memorandum at 
19; n. 10; Lorance Dep. 172-173.

13 Stewart v . CPC Intern . , Inc. , 
679 F.2d 117, 120 (7th Cir. 1982).



50a
Defendant AT&T's Motion for Summary 
Judgement be granted.14

Respectfully submitted,

__________is.L________________W. Thomas Rosemond, Jr. 
United States Magistrate

Dated: March 21, 1986

14 Counsel are given ten days from 
the date hereof to file exceptions to 
this Report and Recommendation with the 
Honorable Harry D. Lienenweber.

r