Swint v. Pullman-Standard Petitioners' Reply Brief

    No. 88-1602

In  T h e

Supreme Court of tf)c Um teti s ta te s
O c t o b e r  T e r m , 1988

LOUIS SWINT, etc., et al.,

v.

PULLMAN-STANDARD, et al.,

Petitioners,

Respondents.

On Petition For A Writ Of Certiorari 
to The United States Court Of Appeals 

for The Eleventh Circuit

PETITIONERS’ REPLY BRIEF

JAMES U. BLACKSHER 
5th Floor 
Title Building 
300 21st St. North 
Birmingham, Alabama 35203 
(205) 322-1100

OSCAR W. ADAMS, III 
Brown Marx Building 
Suite 729 
2000 First Avenue 
Birmingham, Alabama 35203 
(205) 324-4445

ELAINE R. JONES 
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 301
1275 K Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

JULIUS L. CHAMBERS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund, Inc.

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioners 

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS
Page

Table of Authorities ..........  ii
Argument .................   1
Conclusion ....................  13

1



TABLE OF AUTHORITIES
Page

American Tobacco Co. v.
Patterson, 456 U.S. 63
(1982)     6,10,11

California Brewers Assn. v.
Bryant, 444 U.S. 598 ......  6,10,11

Delaware State College v. Ricks,
449 U.S. 250  ........ 7,10

Lorance v. A. T. & T. Tech­
nologies, Inc., 104 L.Ed.2d 
961 (1989) ................. Passim

Pullman-Standard v. Swint,
456 U.S. 273 (1982)   7,10,11

Teamsters v. United States,
431 U.S. 324 (1977) .... 3,5,6.,10,11

Title VII, Civil Rights Act
of 1964 ..................  Passim

ii



No. 88-1602

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

LOUIS SWINT, etc. et al..
Petitioners. 

v.
PULLMAN-STANDARD, et al..

Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals
for the Eleventh Circuit

PETITIONERS' REPLY BRIEF 

ARGUMENT
This appeal and petition do not, as 

respondent suggests, concern disputed 
issues of fact. The courts below candidly 
acknowledged that the Pullman-Standard's 
seniority system was administered in an 
expressly and avowedly racial manner. For



2
decades before 1965, and for a number of 
years thereafter, promotions were made to 
the "senior white" or "senior black," 
according to the racial categorization of 
each vacancy. Both courts below also 
agreed that a number of previously 
integrated departments had been separated 
into all-white and all-black departments 
for a v o w e d l y  r a c i a l  reasons. 
Respondent's Brief in Opposition, although 
raising a variety of peripheral factual 
issues, does not dispute these critical 
findings. Respondent does deny that its 
termination of on-the-job training for 
senior bidders was racially motivated (Br. 
Opp. 11-12), but the district and circuit 
courts held otherwise. (Pet. 27-28).

What is at issue here, as in the 
circuit court, is the legal significance 
of these avowedly discriminatory seniority 
practices. Respondent prevailed below on



3
a contention of law —  that the types of 
intentional racial discrimination which 
permeated the Pullman-Standard seniority 
system were, as a matter of law, legally 
irrelevant. That contention turns not on 
any disputes of historical fact, but on 
the interpretation of section 703(h) of 
Title VII and the meaning of Teamsters v. 
United States. 431 U.S. 324 (1977). The
circuit court understood that the appeal 
before it raised essentially legal issues. 
(See Pet. App. 167a) ; it upheld the 
seniority system only because it had 
resolved those legal issues in 
respondents' favor. Respondent's
contention that there was insufficient 
evidence to prove the seniority system 
non-bona fide is in reality a contention 
that the courts below properly held 
legally irrelevant most of the evidence of 
racially motivated seniority practices.



4
Respondent argues repeatedly that the 

merit of this petition is controlled by 
the Court's June, 1989 decision in Lorance 
v. A.T. & T. Technologies, Inc.. 104 
L. Ed. 2d 961 (1989). (Br. Opp. 3, 9, 13, 
15-16, 17). We agree that this case 
raises a number of important issues 
regarding the meaning of Lorance. but 
urge that the ramifications of Lorance are 
far from clear, and that certiorari should 
be granted to address the questions posed 
by that decision.

Respondent's most important legal 
contention is that under Lorance a 
seniority system adopted prior to ,1965 for 
avowedly racially discriminatory purposes 
would, nonetheless, be bona fide as a 
matter of law. (R.Br. 17-18). Respondent 
argues that, even though the Pullman- 
Standard seniority practices may have been 
structured and operated for the express



5
purpose of discriminating against blacks, 
such an invidious intent is irrelevant 
because the system and practices were 
established prior to 1965, and are thus 
"time-barred." (R. Br. 17). Although the 
circuit court opinion in this case pre­
dates Lorance. respondents argument is a 
plausible construction of the decision 
below. Whether Lorance in fact declares 
bona fide all pre-Act racially motivated 
seniority systems is a legal issue of 
great importance which this Court should 
grant certiorari to resolve.

Prior to Lorance the decisions of 
this Court left no doubt that a racially- 
motivated pre-Act seniority system was, by 
definition, not bona fide. Teamsters v. 
United States. 431 U.S. 324 (1977), held 
that Congress added section 703(h) to the 
1964 Civil Rights Act in order to protect 
then existing seniority systems, provided



6
that they were bona fide. 431 U.S. at 
343-56. Teamsters upheld the longstanding 
seniority system in that case because, in 
part, it did not "have its genesis in 
racial discrimination." 431 U.S. at 356. 
In California Brewers Assn, v. Bryant, 444 
U.S. 598 (198 0) , the Court directed the
lower courts to decide whether a seniority 
system established prior to 1960 was or 
was not bona fide. 444 U.S. at 602, 611. 
In American Tobacco Co. v. Patterson. 456 
U.S. 63 (1982), the Court addressed an
issue which it thought had been left 
unresolved by Teamsters, whether section 
703(h) protects post-Act bona fide 
seniority systems. The majority concluded 
that "§ 703(h) makes no distinction
between pre-Act and post-Act seniority 
systems," 456 U.S. at 71, which could be 
invalidated only if there was "actual
intent to discriminate." 456 U.S. at 65.



7
The Court held that a plaintiff could 
defeat the defense provided by section 
7 03 (h) if he or she could prove that a 
seniority system, no matter how old, was 
invidiously motivated.1 When the instant 
case was before this Court in 1982, the 
Court indicated that the bona fides of the 
seniority system would turn, at least in 
part, on "the purpose of ... creating ... 
the seniority system," notwithstanding the 
fact that the system, as respondent now 
emphasizes, had been created long before 
the adoption of Title VII. Pullman- 
Standard v. Swint 456 U.S. 273, 292 n. 23
(1982) .

This entire line of cases, as 
respondent observes, has been called into

x 456 U.S. at 70 ("employees who seek redress under Title VII more that 180 
days after the adoption of a seniority 
system ... would have to prove the system 
was intentionally discriminatory") (footnote omitted).



8
question by Lorance. The defendants in
Lorance expressly urged this Court to hold 
that a seniority system created prior to 
1965 for the purpose of racial 
discrimination is, as a matter of law, 
bona fide under section 703(h). (Pet. 
32-33 n. 18) . The majority opinion in 
Lorance. although stopping short of such a 
holding, undeniably contains language 
which lends some support to such a major 
change in the interpretation of section 
703(h).2

z E.g. 104 L.Ed.2d 973.
"At least as concerns seniority 

plans, we have regarded subsection 
(h) ... as a provision that itself
d e lineates which employment 
practices are illegal and thereby 
prohibited and which are not .... 
Thus petitioners' claim depends on 
proof of intentionally discriminatory 
adoption of the system, which 
occurred outside the limitations period."

104 L.Ed.2d at 975:
"[A] facially neutral system, if it



9
But Lorance held only that employees 

must act promptly if they wish to 
challenge post-Act alterations in 
seniority rules; it did not suggest that 
pre-Act seniority rules could never be 
challenged at all. Although respondent 
characterizes our challenge to the Pullman 
seniority rules as "untimely," on 
respondent's view of the law no timely 
Title VII charge could ever be filed 
against a pre-Act seniority system, since 
Title VII itself did not exist at the time 
when the racially motivated pre-Act 
practices and rules were adopted.

We do not think that the Court in 
Lorance in fact intended to overrule

is a d o p t e d  w i t h  u n l a w f u l  
discriminatory motive, can be 
challenged within the prescribed period after adoption. But allowing a 
facially neutral system to be 
challenged . . . many years after its 
adoption would disrupt those valid 
reliance interests that § 703(h) was meant to protect."



10
Teamsters, Patterson. California Brewers, 
and the Court's prior decision in Swint. 
In Lorance. unlike Teamsters and the 
instant case, there was no claim that the 
disputed seniority practice perpetuated 
the effects of past discrimination. The 
claim in Lorance was more closely 
analogous to the issue in Delaware State 
College v. Ricks. 449 U.S. 250 (1980), on 
which the majority relied, than to the 
circumstances in Teamsters. As the Court 
observed in Teamsters. section 703(h) was 
adopted in 1964 primarily to protect then 
existing seniority systems, provided they 
were bona fide. Congress clearly intended 
this proviso to distinguish between then 
existing systems which were and were not 
bona fide. But if evidence of pre-Act 
invidious motives were irrelevant, then 
all the seniority systems in existence in 
1964 would have been bona fide.



11
Although we think respondent's 

construction of Lorance is ultimately 
unsound, the passages in Lorance on which 
respondent relies undeniably throw into 
question virtually every pending case 
challenging the bona fides of a seniority 
system. In almost all of those cases the 
alleged invidious purpose concerned the 
creation of a seniority system years 
before Title VII was ever adopted. If 
such a pre-Act invidious motivation is 
indeed irrelevant to the bona fides of a 
seniority system, Teamsters. Patterson. 
California Brewers and this Court's 
previous decision in Swint would all now 
be bad law. The circumstances of this 
case, as respondent itself suggests, 
squarely present that issue, and 
certiorari should be granted to resolve 
it.



12
This case also involves seniority 

practices adopted or maintained for 
discriminatory purposes after the 
enactment of Title VII. Here too, there 
is a disagreement about the meaning of 
Lorance. Both before and for some time 
after the adoption of Title VII the actual
seniority rule at the plant was to
promote the "senior white" or "senior
black ," according to the racial
designation of each vacancy. The Eleventh 
Circuit thought this largely irrelevant 
to the bona fides of the seniority system 
because the nominal written seniority 
rules contained no such racial standard. 
Lorance makes a sharp distinction between 
a "facially neutral" seniority system and 
"a facially discriminatory system." 104 
L.Ed.2d at 975 n. 5. But the distinction 
in Lorance turns, not as in the Eleventh 
Circuit on nominal written rules, but on



13
actual seniority practices; Lorance makes 
clear that a seniority system would be 
unlawful under Title VII if it were 
" operated in an intenti o n a l l y  
discriminatory manner." 104 L.Ed.2d at
971. (Emphasis added). In this regard
the decision of the Eleventh Circuit is 
squarely inconsistent with the decision in 
Lorance.

CONCLUSION
For the above reasons, a writ of 

certiorari should be granted to review the 
judgment and opinion of the Eleventh 
Circuit. In the alternative, it might be



14
appropriate to vacate and remand the
decision of the Court of Appeals for
reconsideration in light of Lorance.

Respectfully submitted,

ELAINE R. JONES
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 301
1275 K Street, N.W. 
Washington, D.C. 20005 (202) 682-1300

JULIUS L. CHAMBERS 
ERIC SCHNAPPER*

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

JAMES U. BLACKSHER 
5th Floor 
Title Building 
300 21st Street, North 
Birmingham, Alabama 35203 
(205) 322-1100

OSCAR W. ADAMS, III 
Brown Marx Building Suite 729 
2000 First Avenue 
Birmingham, Alabama 35203 
(205) 324-4445

Counsel for Petitioners
*Counsel of Record