International Brotherhood of Teamsters v. United States Brief for the United States and the EEOC

    N o s . 7 5 -6 3 6  a n d  7 5 -6 7 2

Jit tfe jSujnm* § m t  af t h  HttM $ M t z
O ctober T e r m , 1976

I n t e r n a t io n a l  B roth erh oo d  of T ea m ster s , 
pe t it io n e r

V .

U n it ed  S tates of A m er ic a  and  E q ual  E m pl o y m e n t  
O p po r t u n it y  C o m m issio n

T.I.M.E.-D.C., INC., p e t it io n e r

■v.
U n it e d  S tates of A m er ic a  and  E q ua l  E m pl o y m e n t  

O ppo r t u n it y  C o m m issio n

ON W R IT  OF C E R T IO R A R I TO TH E  U NITED  S T A T E S  COURT OF 
A P P E A L S  FOR TH E  F IF T H  C IR C U IT

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION

R O B ERT H . BORK,
Solicitor General,

J . STA N LEY  PO TT IN G E R ,
A ssistan t A ttorney General, 

L A W R E N C E  G. W A LLA CE,
D eputy Solicitor General, 

THOM AS S. M A R T IN ,
A ssistan t to the Solicitor General,

B R IA N  K. LANDSBERG,
D A V ID  L, ROSE,
W IL L IA M  B. EENTON,
JE SSIC A  DTJNSAY SIL V ER ,

Attorneys,
D epartm ent of Justice, 

W ashington, D.C. 20530.
A B N E R  W . SIB A L,

General Counsel, .

E qual Em ploym ent O pportunity Commission, 
W ashington, D.C. 20506.

3: m



I N D E X

Opinions below--------------------------------------------------------
Jurisdiction-----------------------------------------------------------
Questions presented-------------------------------------------------
Statutory provisions involved------------------------------------
Statement:

Proceedings below----------------------------------------------
A. Proceedings in the district court-------------------------

1. Evidence-------------------------------------------
2. Decision of the district court------------------

B. The decision of the court of appeals-------------------
Summary of argument----------------------------- ----------------
Argument------------------- ------------------------------------------

I. The district court and the court of appeals cor­
rectly found, on the basis of statistical evidence 
and extensive pre-trial and trial testimony con­
cerning individual acts of discrimination, that
T.I.M.E.-D.C. had engaged in a pattern of dis­
criminatory employment practices against blacks 
and Spanish-surnamed Americans in violation 
of Title Y II of the Civil Rights Act of 1964-----

II. A seniority system that penalizes incumbent em­
ployees who transfer to higher paying, more 
attractive, traditionally white job classifications 
from which they previously were excluded, 
perpetuates the effects of a pattern and practice 
of racial discrimination and violates Title V II— 

A. A seniority system which requires vic­
tims of racial discrimination to forfeit 
their accrued competitive status senior­
ity in order to transfer to a job previ- 
viously segregated on the basis of race, 
perpetuates the effects of prior dis­
crimination —

Page
1
2
2
3

4
6
6

13
17
20
25

25

40

40

(!'



II

Argument—Continued
II. A seniority system, etc.'—Continued

B. Section 703 (h) does not safeguard appli­
cations of a seniority system which dis­
criminate between incumbent workers 
on the basis of prior discriminatory Page 
job category assignments___________ 44

III. The court of appeals correctly ruled that in a case
where a pattern and practice of discrimination 
has been proved an incumbent minority em­
ployee seeking rightful place seniority relief 
who is a member of the affected class (1) is en­
titled to a rebuttable presumption that he was a 
victim of discrimination, and (2) need not neces­
sarily have unsuccessfully applied for a vacant,
rightful place job to be entitled to relief_______ 52

IV. The court of appeals correctly held that the rights 
of members of the affected class to compete for 
future vacancies at their home terminals or else­
where should not be subordinate either to the 
rights of employees transferring from other ter­
minals, or to the rights of employees with less
seniority who are on layoff_________________  64

Conclusion________________________________________  69

CITATIONS

Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405----------  23,53
Alexander v. Gardner-Denver Co., 415 U.S. 36----------- 44,45
Avery v. Georgia, 345 U.S. 559___________________  28
Bing v. Roadway Express, Inc., 485 F. 2d 441----------- 58
Bowe v. Colgate-Palmolive Co., 416 F. 2d 711--------42, 50
Cathey v. Johnson Motor Lines, Inc., 398 F. Supp.

1107_______________________________ _________ 44, 68
Comstock v. Group of Institutional Investors, 335

U.S. 211____________________________________  25
Equal Employment Opportunity Commission v. De­

troit Edison Co., 515 F. 2d 301, petitions for certio­
rari pending, Nos. 75-220, 75-221, 75-239, 75-393___ 58

Franks v. Bowman Transportation Co., 424 U.S. 747_ Passim, 
Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100------ 67, 68



HI

Cases—Continued Pa®e
Griggs v. Duke Pouter Go., 401 U.S. 424-----  22,29,43,44, 51
Hairston v. McLean Trucking Co., 520 F. 2d 226— 43, 58, 60
Head v. Timken Boiler Bearing Co., 486 F. 2d 870-----  42
Hernandez v. Texas, 347 U.S. 475--------------------------  29,30
Johnson v. Ryder Truck Lines, Inc., 10 EPD f  10, 535,

p. 6240, 12 F E P  Cases 903--------------------------------  68
Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245,

certiorari denied, 401 U.S. 954---------------------------- 25, 58
Local 189, United Payer-makers v. United States, 416

F. 2d 980, certiorari denied, 397 U.S. 919---------------  42,
44,47,48,49, 50

Love v. Pullman, 11 EPD 10, 858, p. 7617, 12 FE P
Cases 339-------------------------------------------------------  58

McDonald v. Santa Fe Trail Transportation Co., No.
75-260, decided June 25,1976--------------------------- 57

McDonnell Douglas Corporation v. Green, 411 U.S.
792 __________________________________ — - 37,56,57

Navajo Freight Lines, Inc., 525 F. 2d 1318--------------- 42
National Labor Relations Board v. Bell Aerospace Co.,

416 U.S. 267_________________________________  51
Norris v. Alabama, 294 U.S. 587-----------------------  25, 29,30
Quarles v. Philip Morris, Inc., 279 F. Supp. 505—  47,49, 50 
Red Lion Broadcasting Co. v. Federal Communica­

tions Commission, 395 U.S. 367---------------------------  51
Robinson v. Lorillard Corp., 444 F. 2d 791, certiorari

dismissed, 404 U.S. 1006-----------------------------------42,44
Rodriguez v. East Texas Motor Freight, 505 F . 2d 40, 

certiorari granted, May 24,1976, Nos. 75-651,75-715,
75-718______________________________________ 18> 58

Rowe v. General Motors Corp., 457 F. 2d 348------------  29, 67
Sabala v. Western Gillette, I-nc., 516 F. 2d 1251, peti­

tions for certiorari pending, Nos. 75-781, 75-788-----  43, 60
Sagers v. Yellow Freight System, Inc., 529 F. 2d 721— 18,

58, 68
Senter v. General Motors Corp., 532 F. 2d 511----------- 25
Thornton v. East Texas Motor Freight, 497 F.2d 416— 43
Turner v. Fouche, 396 U.S. 346------------------- --------  30
United States v. Bethlehem Steel Corp., 446 F.2d

661_________________________________ — - 47, 54, 62
United States v. Central Motor Lines, Inc., 338 

F. Supp. 532________________________________ 44, 54



IV

Cases—Continued
United States v. Cheapeake and Ohio Ry. Go., 471 page

F.2d 112_________________________________ 28,67
United States v. East Texas Motor Freight System ,

Inc., 10 EPD 1jl0, 345, p. 5416, 10 F E P  Cases 973,
appeal pending, No. 75-3332___________________  68

United States v. Florida East Coast Railway Co.,
7 EPD |9218, p. 7067, F E P  Cases 540___________ 67

United States v. Hayes International Corp., 456
F.2d 112_________________________________ 28,67

United States v. Ironworkers Local 86, 443 F.2d 544_ 33
United States v. Jacksonville Terminal Co., 451 F.2d

661, certiorari denied, 406 U.S. 906___________ 47, 54, 67
United States v. Lee Way Motor Freight, Inc., 7 EPD

|9066, 6497, 7 F E P  Cases 710_____________ 68
United States v. N. L. Industries, Inc., 479 F. 2d

354 ______________________________________  42,58, 60
United States v. Navajo Freight Lines, Inc., 525 F. 2d

1318_____    42,43,68
United States v. Pilot Freight Carriers, Inc., 6 EPD

If 8766, p. 5344,6 F E P  Case 280______________  58
United States v. Pilot Freiqht Carriers, Inc., 54 F.E.D.

519_____________________________________  68
United States v. Roadway Express, Inc., 457 F. 2d 

854 _________________________________________  68
United States v. St. Louis-San Francisco Ry. Co., 464

F. 2d 301, certiorari denied, 409 U.S. 1116_________ 54
United States v. Terminal Transport Co., 11 EPD

If 10,704, p. 6936______________________________  68
Washington v. Davis, No. 74-1492, decided June 7,

1976 ________________________    26
Williamson v. Bethlehem Steel Corp., 468 F. 2d 1201,

certiorari denied, 411 U.S. 931__________________  67
Statutes:

Civil Rights Act of 1964, Title VII, 78 Stat. 253, as 
amended, 42 U.S.C. 2000e et seq.

Section 703, 42 U.S.C. 2000e-2________________  42
Section 703 (a ) (1), 42 U.S.C. 2000-2 (a )(1 )_____  42
Section 703(a)(2), 42 U.S.C. 2000e-2(a) (2)___  28
Section 703(h), 42 U.S.C. 2000e-2(h)_________  21,

22, 44,45,46,47, 49, 50, 51 
Section 703 (j ), 42 U.S.C. 2000e-2 (j ) __________ 32, 33



V

Statutes—Continued
Civil Eights Act of 1964—Continued

Section 706(g), 42 U.S.C. (Supp. V) 2000e- page
5(g) ----------------------------------------------- ^

Section 707, 42 U.S.C. (Supp. V) 2000e-6-------- 4,26
Section 707(c), 42 U.S.C. (Supp. V) 2000e-6(c)— 4
Section 707(d), 42 U.S.C. (Supp. V) 2000e- 

6(d) -----------------------------------------------  4
Miscellaneous:

110 Cong. Eec. (1964) :
P.b. 486-488____
P. 1518_________
P. 7213_________
P. 12723________
P. 14270________

46
33 

46,50 
33 
26

118 Cong. Eec. (1972) :
P. 1665 -----------------------------------------------------  6t
Pp. 1671-1675 ---------------------------------------------
P. 1673 -----------------------------------------------------
P. 1675 -----------------------------------------------------
P. 1676 __________________________________ _

Cooper and Sobol, Seniority And Testing Under Fair 
Employment Laws: A  General Approach lo  Objec­
tive Criteria Of Hiring A rnd Promotion, 82 Harv. L.
Eev. 1598 (1969)--------------------------------------------- 49

Note, Civil Rights—Racially Discriminatory Employ­
ment Practices Under Title V I I , 46 N.C. L. Eev. 891
(1968)________________________________ - - - - -  48

Note Gould, Seniority and the Black Worker: Reflec­
tions on Quarles and Its Implications, 4 ( Tex. L. Eev.
1039 (1969) --------------------------------------------------  48

Note, Title VII,  Seniority Discrimination, and the In ­
cumbent Negro, 80 Harv. L. Eev. 1260 (1967)----- 47,48, 50

S. Eep. No. 92-415, 92d Cong., 1st. Sess. (1971)-------- 50-51
U.S. Bureau of Census, Census of Population, 1970, 

Characteristics of Population, Vol. I, Part 1, p. 1- 
392, Table 91: “Occupation of Employed Persons By 
Eace, For Urban and Eural Eesidence”---------------  28



| n  the Supreme of the United s ta te s
O ctober T e r m , 1976

No. 75-636
I n te r n a t io n a l  B rotherhood  of T ea m ster s ,

PETITIONER
V.

U n it ed  S tates of A m er ic a  and  E qual  E m pl o y m e n t  
O ppo r t u n it y  C o m m issio n

No. 75-672
T.I.M.E.-D.C., INC., PETITIONER 

V.

U n it ed  S tates of A m er ic a  and  E q ual  E m pl o y m e n t  
O p po r t u n it y  C o m m issio n

ON W R IT  OF C E R T IO R A R I TO TH E  U NITED  S T A T E S  COURT OF 
A P P E A L S  FOR TH E  F IF T H  CIRCU IT

b r ie f  fo r  t h e  u n it e d  st a t e s  a n d  t h e  e q u a l
EMPLOYMENT OPPORTUNITY COMMISSION

O PIN IO N S BELOW

The opinion of the court of appeals (A.P. 1-44)* 
is reported at 517 E.2d 299. The final order of the 
district court entered on March 2, 1973 (A.P. 94- 
116), and the order amending the final order entered 
on March 19, 1973 (A.P. 117-118), are not officially 
reported. An order entered by the district court on 
December 13, 1971 (A.P. 45-49) is reported at 335 P.

*“A.P.” refers to the Appendix to Petition for Certiorari 
filed by the International Brotherhood of Teamsters in No. 
75-636.

(i)



2

Supp. 246. Other orders and opinions of the district 
court are not officially reported but are unofficially 
reported as follows:

Order entered on January 20, 1972 (A.P. 50- 
55) 4 FEP Cases 875; 4 EPD f7881.

Decree in Partial Resolution of Suit (con­
sented to by the United States and T.I.M.E.- 
D.C.) entered on May 12, 1972 (A.P. 85-93), 4 
EPD f7831.

Memorandum Opinion entered on October 19, 
1972 (A.P. 56-78), 6 FEP Cases 690; 6 EPD 
H8979.

Supplemental Opinion entered on Decem­
ber 6, 1972 (A.P. 79-84), 6 FEP Cases 690, 
703; 6 EPD 1f8979, p. 6161.

JU R ISD IC T IO N

The judgment of the court of appeals was entered 
on August 8, 1975. The petitions for a writ of 
certiorari were filed on October 29, 1975, and Novem­
ber 6, 1975, respectively, and were granted on May 24, 
1976. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1).

QUESTIONS PR E SE N T E D

1. Whether the district court and the court of ap­
peals correctly found, on the basis of statistical evi­
dence and extensive pretrial and trial testimony con­
cerning individual acts of discrimination, that 
T.I.M.E.-D.C. had engaged in a pattern of discrimi­
natory employment practices against blacks and 
Spanish-surnamed persons in violation of Title VII 
of the Civil Rights Act of 1964.

2. Whether applications of a seniority system that 
penalize incumbent employees who transfer to job



3

classifications from which they previously were dis- 
criminatorily excluded and perpetuate the effects of 
a pattern of exclusion of blacks and Spanish-sur- 
named employees from higher paying, more attractive, 
traditionally white jobs, violate Title VII.

3. Whether, in a case where a pattern and practice 
of employment discrimination had been demonstrated, 
an incumbent minority employee seeking rightful place 
seniority relief who is a member of the affected class 
(1) is entitled to a rebuttable presumption that he was 
a victim of discrimination, and (2) need not neces­
sarily have applied for a vacant rightful place job to 
be entitled to relief.

4. Whether the court of appeals correctly held that, 
in the circumstances of this case, the rights of mem­
bers of the affected class to compete for future vacan­
cies at their home terminals or elsewhere should not 
be subordinated either to the rights of employees 
transferring from other terminals or to the rights of 
employees with less seniority who are on layoff.

STATU TO RY  PRO V ISIO N S IN VO LVED

Several pertinent provisions of Title V II of the 
Civil Rights Act of 1964 are set forth in the Appen­
dix to Petition for Certiorari in No. 75-636 (A.P. 
119-124).

In addition, Section 706(g) of Title VII, 78 Stat. 
261, as amended, 42 U.S.C. (Supp. V) 2000e-5(g), 
provides in pertinent part:

If  the court finds that the respondent has 
intentionally engaged in or is intentionally en­
gaging in an unlawful employment practice 
charged in the complaint, the court may enjoin 
the respondent from engaging in such unlawful



4

employment practice, and order such affirma­
tive action as may be appropriate, which may 
include, but is not limited to, reinstatement or 
hiring of employees, with or without back 
pay * * * or any other equitable relief as the 
court deems appropriate.

STA TEM EN T

These petitions arise from two Title Y II cases 
brought by the United States pursuant to Section 707 
of the Civil Rights Act of 1964, 78 Stat, 261-262, as 
amended, 42 U.S.C. (Supp. V) 2000e-6 (A.P. 122) 1 
alleging a pattern of employment practices that dis­
criminate against blacks and Spanish-surnamed 
Americans on the grounds of race and national origin. 
The first suit, filed on May 15, 1968, in the United 
States District Court for the Middle District of 
Tennessee, Nashville Division (A. 2),2 alleged discrim­
inatory hiring, assignment, and promotion practices 
against blacks at the Nashville terminal of T.I.M.E. 
Freight, Inc., a common carrier by motor freight 
(A.P. 3).

The second suit was brought on January 14, 1971, 
against T.I.M.E.-D.C., Inc. (“T.I.M.E.-D.C.” or “ the 
Company”) and the International Brotherhood of 
Teamsters (“ Teamsters”) in the United States Dis­

1 On May 24, 1974, the United States Court of Appeals for 
the Fifth Circuit entered an order substituting the Equal Em­
ployment Opportunity Commission for the United States as 
plaintiff (see 42 U.S.C. (Supp. V) 2000e-6 (c) and (d), A.P. 123- 
124) but retaining the United States as a party for purposes of 
jurisdiction, appealability, and related matters.

2 “A.” refers to the Appendix filed jointly in Nos. 75-636 and 
75-672.



5

trict Court for the Northern District of Texas, Lub­
bock Division (A. 2, 4-8). T.I.M.E.-D.C., a successor 
of T.I.M.E. Freight, Inc., is an interstate motor car­
rier of general commodities and is the product of ten 
mergers over a 17-year period (A.P. 5). T.I.M.E.-D.C. 
currently has 51 terminals and operates in 26 states 
and three Canadian provinces (A. 43). The Teamsters 
is an unincorporated labor organization, and certain 
locals chartered by it are parties to collective bargain­
ing agreements with T.I.M.E.-D.C. (A. 42). All of 
T.I.M.E.-D.C.’s line drivers and the vast majority of 
its city employees and servicemen work under collec­
tive bargaining agreements negotiated for them by 
various committees of the Teamsters (A.P. 6, 17).' 
The complaint against T.I.M.E.-D.C. and the Team­
sters alleged a pattern and practice of hiring, assign­
ment, and promotion discrimination against blacks 
and Spanish-surnamed Americans throughout the 
T.I.M.E.-D.C. system; it specifically alleged that the 
seniority system to which the defendants are parties 
violates Title V II by perpetuating the effects of past 
discrimination (A. 6).

The two suits were consolidated in the United States 
District Court for the Northern District of Texas, 3

3 The National Master Freight Agreement is reproduced m 
full in P i’s Ex. 203(a) (A. 284), which is entitled “National 
Master Freight Agreement and Southern Conference Area 
Over-the-Road Supplemental Agreement.” Other area supple­
mental agreements in P i’s Exs. 203(a), 203(b), 203(c) and 203 
(d) are also part of the same National Master Freight Agree­
ment. The National Master Freight Agreement and Southern 
Conference Area Over-the-Road Supplemental Agreement is 
also contained in P i’s Ex. 202, portions of which are printed 
in the joint appendix (A. 795-840).



6

Lubbock Division (A. 3), and a trial was held in May 
1972. On May 12, 1972, the district court entered a de­
cree consented to by the United States and T.I.M.E.-
D.C. (“Decree in Partial Resolution of Suit”) that 
resolved a number of issues relating to T.I.M.E.-D.C.’s 
affirmative obligation to recruit and hire qualified 
blacks and Spanish-surnamed Americans, and 
monetary compensation for those blacks and Spanish- 
surnamed Americans alleged to be individual and class 
victims of discrimination (A.P. 85-93). Left unre­
solved were whether the defendants were in viola­
tion of Title VII, the lawfulness of certain aspects of 
the seniority system, and the appropriate non-mone- 
tary relief.

A. PROCEEDINGS IX  THE DISTRICT COURT

In a memorandum opinion dated October 19, 1972, 
and a supplemental opinion of December 6, 1972 (A.P. 
56-84), the district court issued its findings and con­
clusions based on the trial of the remaining issues. It 
held that T.I.M.E.-D.C. had engaged in a pattern and 
practice of discrimination in violation of Title V II 
and that the defendant unions had also violated the 
Act by giving force and effect to a seniority system 
which perpetuated the effects of employment discrim­
ination.

1. Evidence
The district court based its conclusions on a combi­

nation of statistical evidence and pretrial and trial testi­
mony, the core of which can be briefly summarized as 
follows:

The relevant non-managerial employees at T.I.M.E.- 
D.C. are divided into three basic job classifications: (a)



7

line driver; (b) city driver, dockman and hostler 
(known as “ city operation” jobs); and (c) service­
man (which includes tireman) (A.P. 5-6).4 Line 
drivers (also known as road drivers) transport 
freight in tractor-trailer units over-the-road between 
Company terminals. City drivers pick up and deliver 
freight within a specified radius of a terminal. Dock- 
men (also known as checkers) load, unload and check 
freight at the terminal’s dock. Hostlers drive tractor- 
trailers around the terminal yard and move trailers 
in and out of the dock.5 Servicemen fuel, wash, and 
grease trucks and change tires. They also hook and 
unhook road and city tractors and trailers and drive
them into and out of the shop.6 7

Generally, T.I.M.E.-D.C. and its predecessors had 
no minimum educational requirements for line driver, 
city driver, hostler, dockman or serviceman. The

4 The employees in these classifications are, with few excep­
tions, covered by separate collective bargaining agreements, or 
separate supplemental agreements to the National Master 
Freight Agreement. See Pre-Trial Order Appendix B (A. 132- 
171), They accumulate seniority on separate seniority rosters.
(A.P. 6). ,

5 Dep. of Kenneth N. Gibbs, Jr., Terminal Manager (Nash­
ville), pp. 28-29. The depositions and summaries of depositions 
were admitted in evidence as exhibits and were not formally 
retranscribed as part of the trial transcript (A. 387-390, 277- 
278).

6 Dep. of Dallas R. Anderson, Regional Maintenance Manager 
(Nashville), pp. 117-118, 136.

7 Summary of dep. of James W. Frazier, Terminal Manager 
(Hayward)', p. 13; summary of dep. of Tobey Beck, Ass’t. 
Terminal Manager (Los Angeles), p. 9; summary of dep. ot 
Jackson B. Stroud, Operations Manager (Atlanta), pp. 2, 4 
(all in P i’s Ex. 240 (A. 277-278D ; dep. of Homer W. Bums, 
former Shop Superintendent (Nashville), p. 345.



8

experience requirement generally for line driver 
was experience driving tractor-trailer units and, for 
city driver, experience driving the type of unit (trac­
tor-trailer or straight truck) to be operated on the 
job.8

City operation jobs normally pay more than the 
job of serviceman;9 however, both job categories usu­
ally pay less than the job of line driver. In 1969, line 
drivers averaged from $1,300 to $5,500 more per year 
than city drivers (A. 898). As the district court found 
(A.P. 59), line driver jobs are considered more desir­
able than city driver jobs because the line drivers gen­
erally receive higher pay and are not required to en­
gage in the physically demanding tasks of loading and 
unloading the trucks (see A. 339-340).

As of March 31, 1971, T.I.M.E.-D.C. had 6,472 em­
ployees, of whom 314 (5%) were black and 257 (4%) 
were Spanish-surnamed Americans (A. 43). A large 
majority of the black (83%) and Spanish-surnamed 
American (78%) employees were assigned to city 
operation (city driver, dockman, hostler) or service­
man (including tireman) jobs (A. 43-48). By con­
trast, less than 39 percent of the 5,901 employees who

8 Dep. of Kenneth N. Gibbs, Terminal Manager (Nashville), 
pp. 27-28; dep. of William E. Franzen, Highway Operations 
Manager (Denver), pp. 3-4, 10-11; dep. of Anthony W. Lilly- 
white, Driver Supervisor (Los Angeles) [5-18-71], pp. 6-12; 
summary of dep. of Jackson B. Stroud, Operations Manager 
(Atlanta), pp. 2-4 (in P i’s Ex. 240 (A. 277-278)).

9 See P i’s Ex. 230 (Los Angeles, Nashville, Oklahoma City and 
San Francisco terminals). At the Denver terminal, servicemen 
receive a higher rate of pay than city operation employees. P i’s 
Ex. 230, Tab D.



9

were other than black or Spanish-surnamed were as­
signed to such positions. The great majority of non­
minority employees held line driver, office and super­
visory, and mechanic jobs (A. 43—48). Of the 2,545 
persons employed as city drivers, dockmen, and hos­
tlers, 195 (or 7.7%) were black, and 178 (or 7.0%) 
were Spanish-surnamed (A. 43-44, #14).

Although T.I.M.E.-D.C.’s major terminals employ­
ing line drivers are located in metropolitan areas hav­
ing substantial minority population (A.P. 18-19, 68- 
72), of the 1,828 line drivers at the Company as of 
March 31, 1971, only 8 (or 0.4%) were black and only 
5 (or 0.3%) were Spanish-surnamed American. None 
of the eight blacks was employed as a line driver 
until 1969, although the government’s Title V II suit 
with respect to the Nashville terminal had been filed 
on May 15, 1968 (A. 43-44 #14)!° With one exception, 
no black was ever employed on a regular basis as a 
line driver by T.I.M.E.—D.C. or any of its predecessor 
companies prior to 1969 (A.P. 20-21).

The testimonial evidence showed that the statistics 
indicating disparate employment opportunities for 
blacks and Spanish-surnamed individuals did in fact 
reflect discriminatory hiring practices. The testimony 
showed that numerous qualified black and Spanish- 
surnamed persons who sought initial assignment or 
transfer to line driving positions at various terminals 
of the Company were denied such jobs after being 10

10 A.P. 19; P i’s Ex. 204. Ex. 204 is a printout showing all of 
T.I.M.E.-D.C.’s employees as of March 31, 1971, and it indi­
cates, by terminal, each employee's name, job employed date 
and ethnic code (A. 279-280). The ethnic codes appear on the 
front sheet of the exhibit.



10

given false and misleading information about require­
ments, opportunities, and application procedures 
(A.P. 60-61, 24).

The evidence concerning the Nashville and Memphis 
terminals illustrates the manner in which statistics and 
testimonial evidence combined to reveal a pattern and 
practice of discrimination. For example, as of March 
31, 1971, the statistics on employee complement by job 
category at the Nashville terminal revealed that blacks 
had not obtained any of the 181 line driver and city 
operator jobs.11 12 The Terminal Manager stated in 1966 
that blacks had never been considered for any job ex­
cept serviceman at the terminal (A. 374-376, 379).18 
The district court also found (A.P. 61) that the Com­
pany has trained whites, but not blacks, to be me­
chanics, partsmen and shop supervisors at the Nash­
ville terminal.13 The same statistical pattern of exclu­
sion of blacks from line driving jobs was evident at 
the Memphis terminal, where no line driver jobs went 
to blacks prior to 1969 and only 3 of 104 such jobs 
were held by blacks thereafter.14 Yet, from about 1956 
until sometime in 1958, the Company permitted white 
employees from the city operation (and at least one

11 P i’s Ex. 204, pp. 83-94.
12 The job of serviceman (including fireman) at the Nashville 

terminal pays less than the jobs of dockman, hostler, city driver, 
partsman, mechanic and line driver. P i’s Exs. 230 (Nashville); 
231 (A. 898).

13 Dep. of James E. Mince (Nashville), pp. 182-189; P i’s Ex. 
206; P i’s Ex. 89 (to Nashville deps.).

14 P i’s Ex. 204, pp. 57-68.



11

serviceman) to drive extra trips on the line,15 and a 
number of these white employees later became regular 
line drivers.16 Several black city drivers at the termi­
nal requested that they also be permitted to drive on 
the line during the period 1956-1958; however, they 
were not allowed to do so.17 Testimony indicated that 
the Memphis terminal manager eventually stopped the 
practice because black city drivers were asking to 
drive such trips and he would never permit blacks to 
drive on the road.18

The district court found that the seniority system 
resulting from the collective bargaining agreements 
acted to perpetuate T.I.M.E.-D.C.’s discriminatory 
employment pattern (A.P. 61). Under that system, an 
employee who moves from a job covered by one collec­
tive bargaining agreement to a job covered by another 
collective bargaining agreement at any of the Com­
pany’s terminals must give up his seniority for all

15 Dep. of W. G. Gately, p. 5; dep. of Arthur L. Thornton, 
p. 6; dep. of Fontaine E. Yount, Jr., p. 20 (all taken at 
Memphis).

16 The record shows that the following whites transferred 
from city operation or serviceman Jobs to line driver at the 
terminal during the period 1956-1958: John P. Poston, Jessie L. 
Robertson, Jack P. Jones, Ruby Arnold, J. W. Stanford, Max 
Seeley. Sources: Summary of dep. of Barton O'Brien, Terminal 
Manager (Memphis), pp. 10-12. in evidence as part of P is  Ex. 
240 (A. 277-278); P i’s Exs. 177, 178, 179, 182, 180 (to Mem­
phis deps.) ; dep. of Fontaine E. Yount, Jr., pp. 18-19; dep. of 
W. G. Gately, pp. 21-22 (all taken at Memphis).

17 Dep. of Arthur L. Thornton, pp. 5^8; dep. of James II. 
Walker, pp. 6, 9; dep. of James L. McNeal, pp. 5-6; summary 
of deps, of Charles D. Glover, pp. 1-2, and R. D. Parker, p. 
2, in P i’s Ex. 240 (A. 277-278) (all taken at Memphis).

18 Dep. of Fontaine E. Yount, Jr., pp. 2T-25; dep. of W. G. 
Gately, pp. 16, 19-20 (taken at Memphis).

225-829 0 - 7 6 - 2



12

purposes except fringe benefits (A. 48). City opera­
tion and serviceman jobs are covered by collective 
bargaining agreements (or area supplemental agree­
ments to the National Master Freight Agreement) 
different from those covering line driver jobs (A. 42, 
132-171). Consequently, if qualified black or Spanish- 
surnamed American employees desire to move to va­
cancies in the job of line driver, they are required to 
relinquish all of their accumulated seniority for pur­
poses of job bidding and protection against layoff 
(A.P. 7).19

These seniority provisions are embodied in a Na­
tional Master Freight Agreement and area supple­
ments, negotiated every three years by the National 
Over-the-Road and City Cartage Policy and Negotiat­
ing Committee of the Teamsters, and in various area 
supplements to that national agreement negotiated by 
the National Committee and various area committees

19 The seniority rules have implications for job transfer be­
tween geographic locations as well as between job categories. 
Employees of T.I.M.E.-D.C. can normally exercise their senior­
ity only at the terminal where they are originally hired. How­
ever, line drivers domiciled at those terminals of the Company 
covered by the Southern Conference Area Over-the-Road Sup­
plemental Agreement work under “modified system seniority”. 
Under that system, if a line driver is laid off, he can exercise his 
seniority to take a line driver job at any other terminal covered 
by the agreement, if there is either a vacancy or a line driver 
junior to him at the other terminal. I f  there is no vacancy, but 
only a junior line driver at the other terminal, the transferring 
line driver can “bump” that junior line driver out of his job (A. 
49). Modified system seniority also requires that, when a terminal 
has an opening in a line driver job, it must first offer the job to 
laid off line drivers at all other terminals covered by the Southern 
Conference Supplemental Agreement before filling the opening 
with any other person (A. 49-50).



13

of the Teamsters. The Negotiating Committee repre­
sents locals of the Teamsters, including those with 
which T.I.M.E.-D.C. has agreements, for purposes of 
collective bargaining with the motor carriers. The 
Committee is a party to both the National Master 
Freight Agreement and its area supplemental agree­
ments (A. 797). Each local union gives the Committee 
a power of attorney to negotiate on its behalf (A.P. 
17). Since the Teamsters is a highly centralized inter­
national union (A.P. 17), most of the Negotiating 
Committee’s members are either officers or employees 
of the International, including its chairman, Frank E. 
Fitzsimmons, who is the General President of the 
International (A. 649-651). The Area Conferences of 
the Teamsters are “ subject to the unqualified super­
vision, direction and control of the General Presi­
dent” and they must function under the rules pre­
scribed in bylaws approved by the General President 
(A. 787). Each local union must affiliate with the Area 
Conference having jurisdiction over it (A. 788). The 
bylaws of each local union are. also subject to the ap­
proval of the General President; and if a majority 
of local unions vote to hold area, national or industry­
wide negotiations, all involved local unions “ must 
participate” and “ shall be bound” by the contract if 
approved by the majority of the votes cast by the 
membership covered by the contract proposal (A. 751, 
789).

2. Decision of the District Court

The district court’s memorandum opinion of Octo­
ber 19, 1972, found “[a]U of the evidence * * * 
ample to show by a preponderance of the evidence”



14

that T.I.M.E.-D.C. was engaged in a pattern and 
practice of discrimination in violation of Title Y II 
(A.P. 61-62).20 I t also found that the union defend­
ants were in violation of Title V II for their part in 
negotiating contracts with the Company, which “while 
being neutral on their face, do, however, operate to 
impede the free transfer of minority groups into and 
within the company” (A.P. 61-62).

The government had submitted a list of incumbent 
employees as of March 31, 1971, for whom it sought 
transfer and seniority relief, basically composed of 
blacks and Spanish-surnamed Americans assigned to 
city operation and serviceman jobs at those company 
terminals which had a line driver operation.21 The dis­
trict court found that all of the 358 incumbent black 
and Spanish-surnamed American employees of the 
Company for whom the government sought relief were 
members of an affected class of discriminatees and it 
ruled that all of these individuals were entitled to 
transfer, if qualified, to future vacancies in jobs from 
which they had been excluded as a class (A.P. 62-

20 The relief ordered by the district court in its opinions of 
October 19 and December 6, 1972, was embodied in a final order 
which it entered on March 2, 1973, and later amended in part 
on March 19, 1973 (A.P. 94-118).

21 The list included minority employees hired at terminals 
that had a line driver operation during the period in which 
T.I.M.E.-D.C. was practicing a plan and pattern of discrimina­
tion. Relief was not sought for blacks and Spanish-surnamed 
Americans hired at a particular terminal after the date on 
which the terminal had employed a minority group member in a 
line driver position. Nor was relief sought for minority em­
ployees hired during the period after the last white was hired 
as a line driver at that particular terminal.



15

65) .22 The district court ordered that all discrimina- 
tees who transfer would retain their company 
seniority for fringe and retirement benefits (A.P.
66) .23

However, the district court qualified the class relief 
in several respects. First, it ruled that a job opening 
would not be treated as a vacancy for transfer relief 
purposes where it can be filled by a person on the 
seniority roster where the job occurs who has been on 
layoff for not longer than three years (A.P. 81, para. 
IV).24 Second, based upon the evidence submitted by

22 The district court denied relief to three blacks and one 
Spanish-surnamed American (see Appendix D of memorandum 
opinion, A.P. 78). However, these four persons were appli­
cants for jobs at the Company and not incumbents. In a sup­
plemental opinion of December 6, 1972 (A.P. 80), the district 
court granted relief to these four persons, as well as to three 
whites originally denied relief in Appendix D of its memoran­
dum opinion.

23 The district court had previously ruled that the Teamsters 
International was a proper party to represent and defend the 
seniority status of its members and that the Teamsters’ locals 
which represented T.I.M.E.-D.C. employees were not indis­
pensable parties (A.P. 50-55). The court of appeals subse­
quently affirmed those rulings (A.P. 16-18).

24 This ruling, however, simply incorporated the existing pol­
icy under the collective bargaining agreements in effect at the 
Company which cover employees in jobs represented by the 
Teamsters or its affiliated locals. These agreements provide that 
individuals on layoff for up to three years have a prior right 
to be recalled when openings again occur in those jobs. See, 
e.g., National Master Freight Agreement, Art. 5, Sec. 1 (A.
804); Southern Conference Area Over-the-Road Supplemen­
tal Agreement, Art. 42, Sec. 1 (A. 823); P i’s Ex. 203(b), 
Western States Area Over-the-Road Supplemental Agreement, 
Art. 43, Sec. 1(a), (d), pp. 11, 12; P i’s Ex. 203(c), Central 
States Area Over-the-Road Supplemental Agreement, Art. 43, 
Sec. 1, p. 94.



16

the government in proving the pattern and practice 
of discrimination, the court divided the minority in­
cumbents into three subgroups reflecting their individ­
ual “degree of injury” (A.P. 62-64). Only with 
respect to 29 minority employees, whose testimony was 
actually placed into evidence, did the court find that 
“clear and convincing” proof of discrimination which, 
in its view, alone merited a carryover of seniority for 
purposes of bidding for jobs and protection against 
layoffs (A.P. 64) ,25 Even for these individuals, se­
niority carryover was limited to July 2, 1965, the effec­
tive date of Title VII, because the effect on innocent 
non-minority employees of full seniority carryover 
outweighed “the advantage of restoring, as nearly as 
possible, an individual to the position that he would 
have enjoyed had there never been discrimination” 
(A.P. 63).26

The court established a second subgroup made up of 
individuals who “were likely harmed” (A.P. 64), but 
as to whom the evidence which the government had 
presented was “not sufficient to show clear and con-

25 The names of these 29 minority employees and the relief 
given them are set forth in Appendices B and C to the mem­
orandum opinion (A.P. 73-77). A total of 34 minority em­
ployees were granted relief in Appendices B and C ; how­
ever, 4 of these (Vestal, Stinson, IJix and Barnes) were appli­
cants for jobs at the Company rather than incumbents and a 
fifth (Zeno) was given relief only with respect to the equip­
ment assigned him.

26 In its memorandum opinion, the district court established 
July 2, 1964, as the earliest date for seniority carryover pur­
poses (A.P. 64). I t subsequently changed this date to July 2, 
1965, in its supplemental opinion of December 6, 1972 (A.P. 
82).



17

yincing specific instances of discrimination or liarm 
resulting therefrom” (A.P. 64). Their seniority carry­
over was limited to January 14, 1971, the filing date 
of the Texas suit. As to the third subgroup, the court 
was unable to determine whether “ these individuals 
were either harmed or not harmed individually” (A.P. 
65). I t limited their relief to priority in filling vacan­
cies, refusing to award retroactive seniority {ibid.).

B. THE DECISION OF THE COURT OF APPEALS

On appeal, the court of appeals affirmed the district 
court’s finding that both T.I.M.E.-D.C. and the Team­
sters had engaged in a pattern of employment prac­
tices violative of Title VII. The court stated: “[o]ur 
careful consideration of the record has convinced us 
that * * * the District Court was entitled to conclude 
that the defendants have failed to rebut the plaintiffs’ 
prim a facie case of employment discrimination * * * 
that the defendants have engaged in an extensive pat­
tern of employment practices unlawful under Title 
V II and that strong remedial action is warranted” 
(A.P. 29).

However, the court of appeals held that the district 
court had erred in using testimony that the govern­
ment had introduced in establishing the pattern of 
discrimination to delimit the remedies available to in­
dividual members of the affected class. Instead, the 
court of appeals ruled, the structure of a pattern and 
practice suit precludes any requirement for “ individ­
ualized proof for every member of a class here num­
bering 400 but frequently involving thousands” (A.P.



18

34) ,27 Consequently, the appellate court reversed the 
district court’s gradations of the affected class into 
subgroups of differing transfer and seniority rights 
(A.P. 34). “ [F]or all members of the class there 
should be full company employment seniority carry­
over for bidding and layoff purposes * * *” (A.P. 
38).

The court of appeals also rejected the July 2, 1965 
limitation on seniority carryover. Instead, it made all 
relief subject to the “ qualification date principle” 
(A.P. 38), whereby the seniority carryover date for 
bidding and layoff purposes is determined by (1) the 
date the incumbent minority employee possessed the 
experience necessary to qualify for that job, and (2) 
the date thereafter when a vacancy existed (A.P. 32, 
38).28 The court of appeals did not specifically discuss

27 As the court of appeals noted (A.P. 29-31, n. 33), the 
appeal pertained to the rights of incumbent employees who were 
members of the affected class rather than the rights of rejected 
applicants for new hire. (The district court had given relief 
to some individuals in the latter category, and not to others.) 
The court of appeals did direct, however, that the district court 
have great flexibility on remand to consider former applicants 
who never became incumbents, particularly in light of the fact 
that this Court had granted certiorari in Franks v. Boioman 
Transportation Co., 424 U.S. 747 (decided subsequent to the 
court of appeals’ decision here).

28 See, A.P. 32, n. 35 which in turn refers to Rodriguez v. 
East Texas Motor Freight, 505 F. 2d 40, 63 n. 29 (C.A. 5). 
The F ifth  Circuit has further clarified its position in Sagers 
v. Yellow Freight System , Inc., 529 F. 2d 721, 732.

The court of appeals further recognized that if an affected 
class member had been denied the opportunity to take tests or 
otherwise obtain the requisite experience for a job in the past, 
his qualification date for purposes of determining seniority 
carryover should normally be fixed as of the date in the past



19

petitioners’ opportunity to prove that some individ­
uals were not in fact victims of previous discrimina­
tion (cf. Franks v. Bowman Transportation Co., 424 
U.S. 747, 772), but merely held that showings of 
individual injury were not required for every mem­
ber of the affected class in the liability stage and that 
“ [wjhatever evidentiary hearings are required for in­
dividuals can be postponed to the remedy” (A.P. 34).

Finally, the court of appeals temporarily modified 
the seniority agreements in two respects. The court 
ruled that to allow laid off line drivers a three-year 
priority on filling future openings in line driver jobs 
over the bidding rights of more senior members of the 
affected class would unduly impede the eradication of 
past discrimination. Hence, it directed that when a 
vacancy which is not purely temporary arises in a line 
driver job, a member of the affected class may com­
pete against any line driver on layoff for that vacancy 
on the basis of his carryover seniority date, with the 
opening to go to the competing individual with the 
greatest seniority (A.P. 41). The court of appeals also 
held that all members of the affected class are to have 
preference in filling future vacancies in line driver 
jobs at their home terminals ahead of laid-off line 
drivers transferring in from other terminals (A.P 42).
on which he could have qualified for the job had he been given 
the opportunity to establish his qualifications (A.P. 32, n. 34).

This refinement of the “qualification date principle” is neces­
sary to cover situations such as existed at the Nashville ter­
minal, where the district court found that the Company had 
provided training to whites, but not blacks, to enable them to 
become mechanics, partsmen and shop supervisors (A.P. 61).



20

SU M M A RY  OP A RG U M EN T

A. Petitioner T.I.M.E.-D.C. challenges the concur­
rent factual determinations, reached by the court of 
appeals and the district court, that T.I.M.E.-D.C. 
engaged in a pattern and practice of discrimination 
in the hiring and transfer of its employees. However, 
the undisputed evidence indicates enormous statistical 
disparities, in the higher paying and more desirable 
line driver positions, between the employment of blacks 
and Spanish-surnamed persons, on the one hand, and 
non-minority individuals, on the other. For example, 
only one percent of the approximately 1,800 line 
driver jobs were held by these minority individuals in 
1971, even though many of the company’s terminals 
are located in areas with large minority populations. 
At the same time, large numbers of apparently quali­
fied blacks and Spanish-surnamed persons were rele­
gated to less desirable city operation and servicemen 
jobs. In the absence of any persuasive explanation for 
these flagrant statistical disparities, the courts below 
were entitled to draw an inference of discrimination, 
and shift to the defendant the burden of showing 
that a pattern and practice of discrimination had not 
occurred.

However, neither court below based its conclusion 
that a pattern and practice of discrimination existed 
on statistical evidence alone. The record was replete 
with testimonial evidence that qualified minority ap­
plicants who sought line driver jobs had their requests 
ignored, were given false and misleading information, 
or were not considered on the same basis as whites.



21

Petitioner T.I.M.E.-D.C. has failed to make the ex­
ceptional showing of error that alone would justify 
this Court’s review of these findings based upon the 
entire record and unanimously concurred in by both 
courts below.

B. Both courts also correctly concluded that the 
pattern of racially segregated departments which was 
established by T.I.M.E.-D.C. is perpetuated by a de­
partmental seniority system embodied in collective 
bargaining agreements negotiated by the Interna­
tional Brotherhood of Teamsters. Under this system 
a victim of discrimination who wishes to transfer to 
a line driver job must forfeit the seniority which he 
has accrued through service in the only company 
job that he was permitted to obtain. Because this 
loss of bidding rights and protection against layoff 
would threaten a transferring employee’s economic 
survival, the seniority system acts as a substantial 
impediment to transfer. Even if he transfers, the mi­
nority individual is placed forever behind his white 
contemporaries with respect to the terms and condi­
tions of his employment and the allocation of scarce 
employment benefits. Petitioner International Broth­
erhood of Teamsters nevertheless claims that because 
the seniority system was itself negotiated in good 
faith without racial intent and is a bona fide seniority 
system within the meaning of Section 703(h) of Title 
V II there is no violation of Title VII.

Title V II is directed at the consequences of employ­
ment procedures, and practices “ neutral on their face, 
and even neutral in terms of intent, cannot be main­
tained if they operate to "freeze’ the status quo of



22

prior discriminatory employment practices.” Griggs 
v. Duke Power Co., 401 U.S. 424, 430. Section 703(h) 
of Title VII, 78 Stat. 257, 42 U.S.C. 2000e-2(h), 
was intended to protect the seniority system as a 
governing principle in labor management relations. 
Neither its terms nor its legislative history re­
quire its application to claims of incumbent mi­
nority employees who are locked into less desirable 
jobs by departmental seniority systems which per­
petuate the effects of an original discriminatory as­
signment. Application to these individuals of earned 
company seniority in a rightful place job fits them 
properly into, rather than abrogates, the existing 
seniority system, and can hardly be said to threaten 
the vitality of seniority systems generally. Congress 
has endorsed the prevailing interpretation of the 
courts of appeals that Section 703(h) does not in­
sulate applications of a seniority system which prevent 
victims of discrimination from using their earned 
company seniority when they transfer to their right­
ful place position.

C. Adequate relief for victims of racial discrimi­
nation in employment may require a remedy slotting 
the victims into the seniority positions that would have 
been theirs absent discrimination. Franks v. Bowman 
Transportation Co., 424 U.S. 747, 776-777. Identify­
ing the individual victims of discrimination entitled 
to claim this seniority relief presents a difficult prac­
tical problem, the answer to which will turn on 
whether the claim and findings involve individual or 
class discrimination, the reasonable inferences that 
can be drawn from the factual record, and the nature 
of the unlawful practices followed by defendants.



23

In a case where a pattern and practice of discrimi­
nation has been demonstrated, this Court has already 
held that the burden shifts to the defendants to 
prove that members of the injured class were not 
victims. Franks, supra, 424 U.S. at 772. By contrast, 
the district court below placed the burden of proving 
that members of the class were victims on the mem­
bers of the class themselves (or, here, the government 
suing on their behalf) and based the allocation of 
remedies on the strength of the efforts made on behalf 
of each of them. The court of appeals properly re­
versed, and reset the order and allocation of proof in 
a manner which anticipated Franks. Petitioners’ argu­
ment that district court discretion should be sustained 
in the face of a failure to apply the proper legal 
principles regarding the allocation of the burden of 
proof is wrong under both Franks and Albemarle 
Paper Co. v. Moocly, 422 U.S. 405, 416.

D. The court of appeals also correctly held that, in 
the particular factual circumstances of this case, indi­
viduals seeking relief as victims of discrimination need 
not show that they had unsuccessfully applied for a 
vacant line driver position. The repetitious and contin­
uing quality of a pattern and practice of discrimina­
tion has the practical effect of discouraging both ini­
tial and follow-up applications. Here the class of af­
fected individuals are incumbents, and it is especially 
likely that they both knew of, and responded to, the 
pattern of segregated jobs; indeed there is evidence in 
the record here to that effect. To require minority em­
ployees to have applied for transfer to a segregated 
job in order to qualify for relief penalizes them for 
failing to perform what they knew to be a vain and



24

useless act. Moreover, the presence in this case of a 
seniority system with transfer penalties acted as an 
added deterrent to any application.

The court of appeals’ remedy does not constitute a 
preference for all minority employees. The only mem­
bers of the class entitled to seniority relief are those 
incumbent minority employees who were qualified 
when discrimination occurred and when vacancies 
were available, and whose present desire to transfer 
suggests that a similar opportunity to transfer in the 
past would have been accepted.

E. The court of appeals correctly held that the 
rights of members of the affected class to compete for 
future vacancies at their home terminals or elsewhere 
should not be subordinated to the rights of employees 
transferring from other terminals or to the rights of 
employees with less seniority who are on layoff. This 
temporary modification of applicable seniority rules 
with respect to victims of discrimination who opt to 
accept the class relief constitutes a limited and prac­
tical device to provide a reasonable expectation of ob­
taining a rightful place vacancy without undue delay. 
The court of appeals drew upon its frequent experi­
ence with discrimination remedies in the context of 
the trucking industry and correctly concluded that 
this temporary modification of seniority rules would, 
with fairness, increase the possibility that the effective 
relief which Title V II mandates would be achieved. 
Petitioners charge that non-minority employees may 
be adversely affected, but the impact is not severe and 
represents a reasonable application of the principle 
that “a sharing of the burden of the past discrimina­

6



25

tion is presumptively necessary.” Franks v. Boivman 
Transportation Co., supra, 424 U.S. at 777.

A RG UM EN T

I

THE DISTRICT COURT AND THE COURT OF APPEALS COR­
RECTLY FOUND, ON THE BASIS OF STATISTICAL EVIDENCE 
AND EXTENSIVE PRE-TRIAL AND TRIAL TESTIMONY CON­
CERNING INDIVIDUAL ACTS OF DISCRIMINATION, THAT 
T.I.M.E.—D.C. HAD ENGAGED IN A PATTERN OF DISCRIMI­
NATORY EMPLOYMENT PRACTICES AGAINST BLACKS AND 
SPANISH-SURNAMED AMERICANS IN VIOLATION OF TITLE 
VII OF THE CIVIL RIGHTS ACT OF 19 64

A “ seasoned and wise” rule of this Court is that, in 
the absence of an “exceptional showing of error,” the 
concurrent factual findings of two lower courts will be 
considered final. Comstock v. Group of Institutional 
Investors, 335 U.S. 211, 214. The presence of statis­
tical as well as testimonial evidence in the decision­
making record hardly provides a reason to diverge 
from that prudential rule. The use of statistics in 
proving racial discrimination is long established in 
this Court (Norris v. Alabama, 294 U.S. 587), and 
frequent usage in the court of appeals 29 has demon­

39 Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (C.A. 
10), certiorari denied, 401 U.S. 954. See cases cited at A.P. 23, 
n. 27. The Company suggests that the Sixth Circuit has taken a 
different view of statistical evidence in Senter v. General Motors 
G o r y 532 F.2d 511, 527 (Br., p. 14, n. 28). While the 8 enter 
court did state that the statistics there were “not conclusive,” 
it also pointed out that the Sixth Circuit “generally acknowl­
edge [s] the value of statistical evidence in establishing a prima 
facie case of discrimination under Title V II.” 532 F.2d at 527.



26

strated their utility in Title V II litigation. Statistical 
evidence, indicative of a recurring quality in the acts 
charged, is especially pertinent in a pattern and 
practice suit in which the court must determine 
whether a company has regularly engaged in dis­
criminatory acts.30 By challenging the significance of 
statistical comparisons and the adequacy of the data 
base, in light of the alleged implications of various 
disqualifying factors (T.I.M.E.-D.C. Br., p. 14-25), 
T.I.M.E.-D.C.31 seeks to involve this Court in the fact­
finders’ function of evaluating the adequacy of evi­
dence and drawing appropriate and reasonable 
inferences. Moreover, the testimonial and statistical 
evidence here was tellingly probative, and indeed com­
pelled the finding of a Title V II violation. These 
essentially factual conclusions unanimously reached 
by the judges below should not be disturbed.

The courts below correctly held that the largely un­
disputed statistical and anecdotal evidence established 
a prima facie case of discrimination. With one excep­
tion, no black was ever employed on a regular basis 
as a line driver by T.I.M.E.-D.C. or any of its prede­
cessors until 1969.32 As late as March 1971, almost

30 The legislative history of Section 707 indicates that a “pat~ 
tem or practice” suit is appropriate when a company has regu­
larly engaged in prohibited acts. See, e.g., 110 Cong. Rec. 14270 
(1964) (remarks of Senator Humphrey). In 'Washington v. 
Davis, No. 74-1492, decided June 7, 1976, this Court described 
the rigorous standard of review that follows from an appro­
priate statistical showing in a Title V II case.

31 Notably only petitioner T.I.M.E.-D.C. questions the suffi­
ciency of the eyidence.

32 One black ^employed as a line driver at the Chicago termi­
nal from 1950 to 1959 (A.P. 20).



27

three years after the original Nashville suit had been 
initiated, and five years after the effective date of 
Title VII, there were only 8 (0.4%) blacks and 5 
(0.3%) Spanish-surnamed Americans working in the 
pool of 1,828 line drivers employed by T.I.M.E.-D.C. 
At the same time, the great majority of black (83%) 
and Spanish-surnamed American (78%) employees 
were assigned to city operation and serviceman jobs, 
while only 39 percent of other employees held jobs in 
those categories.33 Indeed, in 1971, when less than one 
percent of the line driver jobs wTere filled by blacks 
and Spanish-surnamed Americans,34 several terminals

33 See pp. 8-9, supra. While the most pervasive discrimination 
found was in keeping blacks and Spanish-surnamed Americans 
out of line driver jobs, at some terminals they have also been 
excluded from less desirable jobs. The district court found, for 
example, that black employees at the Nashville terminal were 
denied training to become mechanics, partsmen, or shop super­
visors (A.P. 61). See also p. 10, supra.

34 T.I.M.E.-D.C. appears to attack the district court’s finding 
(A.P. 59), affirmed by the court of appeals, that line driver, 
which pays as much as $1,300 to $5,500 more per year than city 
driver and does not involve loading and unloading trucks, is a 
more desirable job than city driver (T.I.M.E.-D.C. Br., p. 19). 
The record amply supports the court’s finding (see A. 898, 
339-340). While the Company introduced exhibits indicating 
that, in 1971, city drivers at two terminals averaged more pay 
than line drivers (Defs’ Exs. MMM, PPP, A. 986, 987, 635- 
636), there is no such evidence respecting any other terminals. 
Moreover, the Company’s exhibits also show that systemwide, 
in 1971, line drivers earned more than city drivers (line one 
of Defs’ Exs. MMM, PPP, A. 986, 987). Further, Charles 
F. Hutchinson, T.I.M.E.-D.C.’s Personnel Manager, testified 
that studies done by the Company which compared the earnings 
of line drivers and city drivers for the years 1969 and 1970, in 
which the earnings of those drivers making less than $3,000 
were excluded, disclosed no instances where line drivers earned 
less than city drivers (A. 626). In any event, the discrimi­

225-829 0  -  76 - 3



28

located in areas with a large percentage of blacks in 
the population still had no black line drivers.35 I t is 
clear that blacks and Spanish-surnamed Americans 
were available, because they were employed by the 
company in less desirable jobs, including city driver 
jobs requiring qualifications similar to those of line 
drivers. In 1971, blacks and Spanish-surnamed Amer­
icans constituted 15% of the employees in city opera­
tion jobs for T.I.M.E.-D.C.36 In these circumstances, 
the prima facie inference that the exclusion of quali­
fied blacks and Spanish-surnamed Americans from 
more desirable jobs was a result of invidious dis­
crimination is compelling. As Mr. Justice Frankfurter 
observed more than twenty years ago: “The mind of 
justice, not merely its eyes, would have to be blind to 
attribute such an occurrence to mere fortuity.” Avery 
v. Georgia, 345 U.S. 559, 564 (concurring opinion).

Petitioner offered no explanation for the great sta­
tistical disparity in the employment of black and 
Spanish-surnamed Americans in line driver jobs and 
their employment in city driver and less desirable
natory exclusion of a protected class from any job category 
would violate Section 703(a)(2). See, e.g., United States v. 
Hayes International Corp., 456 F.2d 112, 118 (C.A. 5).

35 Compare line driver statistics for Atlanta, Dallas, Los 
Angeles, and Memphis terminals (A.P. 70-72) with popu­
lation statistics for those areas (A.P. 68-69); see also A.P. 25, 
n. 29. According to 1970 Census data, blacks comprise 13.4% 
of all “truck drivers.” U.S. Bureau of Census, Census of Popu­
lation, 1970. Characteristics of Population, Yol. I, Part 1, P. 
1-392, Table 91: “Occupation of Employed Persons by Race, for 
Urban and Rural Residence.”

36 See p. 9, supra.



29

jobs, other than the general statement that it hired the 
best qualified applicants (T.I.M.E.-D.C. Br., p, 21). 
Cf. Norris v. Alabama, supra, 294 U.S. at 598; Her­
nandez v. Texas, 347 U.S. 475, 480-481. There was no 
evidence that the exclusion of minority employees 
from line driver jobs was due to any valid job require­
ment ; 37 the only significant requirement for a line 
driver position was experience driving tractor-trailer 
equipment,38 39 experience which many of the city drivers 
either had when they applied for a job at T.I.M.E.- 
D.C. (A. 325-327, 370), or acquired as a result of city 
driving.30 Even where it was asserted that there was a 
minimum driving requirement, that requirement was 
not applied uniformly, and there is evidence that it 
was waived for white applicants.40 Both courts below 
suggested that unexplained statistical disparities of 
the magnitude present in this case (A.P. 18-22) can 
shift the burden of proof. On this point, the court of 
appeals specifically referred to its prior ruling in 
Rowe v. General Motors Gorp., 457 P. 2d 348, 358 
(C.A. 5), that “figures of this kind while not neces­
sarily satisfying the whole case, have critical, if not 
decisive, significance—certainly, at least in putting on

37 Had such a requirement been asserted as the reason for dis­
parate job assignment statistics, petitioner T.I.M.E.-D.C. would 
have been required, to show that the requirement was supported 
by business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 
432. No such evidence was adduced.

38 See, e.g., deps. of Ned M. Rockwell, May 17, 1971, at 7-8, 
Kenneth N. Gibbs, Jr., pp. 27, 70-72; D. N. Champlin, pp. 15, 18, 
64; Robert C. Cathey, pp. 22-23; and p. 8, supra.

39 A .'325-327, 370-71.
40 See, e.g., deps. of Kenneth N. Gibbs, Jr., pp. 27, 70-72; Don 

Capshaw, pp. 294-295.



30

the employer the operational burden of demonstrating 
why, on acceptable reasons, the apparent disparity is 
not the real one” (A.P. 23). That statement is correct.

While the use of statistics to shift the evidentiary 
burden is most familiar to this Court in jury selection 
cases (see, e.g., Norris v. Alabama, supra; Hernandez 
v. Texas, 347 U.S. 475; Turner v. Fouche, 396 U.S. 
346),41 the burden-shifting inference is equally appro­
priate in a Title V II pattern of discrimination suit 
which similarly requires more than isolated rejections 
of qualified individuals. As in a jury selection case, 
statistical disparities of sufficient magnitude may show 
that a pattern exists and, in the absence of satisfactory 
explanation, compel the common sense conclusion that 
the disparities are not fortuitous.

The intensity of the statistical showing here vitiates 
petitioner’s quibbles with the precision of the govern­
ment’s statistics. In the face of a showing that less 
than one percent of petitioner’s 1,800 line driver posi­
tions were filled by minority employees, the courts be­
low were entitled to reject the attempts of petitioner’s 
witnesses to undermine the impact of the statistics. As 
the court of appeals stated, “the inability to rebut 
came not from lack of an informed standard. Rather, 
in most instances for LDs [line driver], the inability 
came from the inexorable zero” (A.P. 25).

Indeed, most of petitioner’s statistical points are 
deficient on their face. For example, petitioner chal­
lenges the use of the S.M.S.A. as a basis of compari­

41 The disproportions in the present case greatly exceed that 
found in Turner, su/pra, 396 U.S. at 359 (37% blacks on a grand 
jury as compared to 60% of the total population) to warrant 
corrective action by the courts.



31

son of minorities employed to minorities available in 
the community (T.I.M.E.-D.C. Br., p. 18) ; however, 
the order under review here provided class relief only 
for incumbent employees and relied principally on the 
statistical disparity between employment of incum­
bent whites and employment of incumbent blacks and 
Spanish-sumamed Americans in more desirable jobs 
(A.P. 18-22). Petitioner does not even address the 
evidence of statistical disparity in the concentration 
of these minority employees in the less desirable jobs. 
Similarly, petitioner 'cites statistics indicating hiring 
practice improvements in 1971 (T.I.M.E.-D.C. Br., p. 
18), but the violations found occurred prior to 1971 
and the relief afforded was limited to the pre-1971 
period (A.P. 12, 29-30, n. 33). Moreover, petitioner’s 
overall work force statistics do not indicate the jobs to 
which minority employees were assigned, a pivotal 
point in this litigation.

Thus, this is not a case where “ fine tuning” of 
statistics to reflect those portions of the minority com­
munity suited by age and health to a job (T.I.M.E.- 
D.C. Br., pp. 19-20) would have any effect on the out­
come. Where, as here, the job requirements were rela­
tively minimal, the incumbent statistics egregious, and 
the testimonial evidence compelling, no useful purpose 
would be served by a requirement (involving substan­
tial costs) to develop more precisely the statistics 
comparing minority hiring to minority availability in 
the area.42 To prohibit the use, for prima facie pur­

42 Petitioner attacks the use of Standard Metropolitan Statis­
tical Area and Urban Place statistics (Br., p. 18 and n. 39). City 
statistics were also introduced (see A.P. 68-69). I f  the avail­



32

poses, of obviously helpful and reliable, available 
statistics because more sophisticated statistics could 
be created would be counterproductive to Title V II 
goals, without advancing the cause of judicious resolu­
tion of Title V II disputes.

The use of statistics by the courts below to draw 
simple, prima facie evidentiary inferences is not, as 
petitioner argues, an attempt to impose a racial bal­
ance standard for violations of Title V II ; nor is it an 
attempt to force “ preferential treatment” of minori­
ties as a requirement of law in derogation of Section 
703(j) (T.I.M.E.-D.C. Br., pp. 14-16). The eviden­
tiary inferences that arise from the statistics are based, 
not upon failure to achieve racial balance, but rather 
upon “ flagrant statistical deviations” (A.P. 23) from 
employment patterns which presumably would reflect 
an unbiased hiring process. Such evidentiary show­
ings are clearly, within the contemplation of the 
statute. Here, where the employer charged with dis­
crimination has more than 6,000 employees located at 
51 terminals in 26 states, and the class of alleged dis­
ability of prospective minority employees is to be determined 
by any other geographical standard, petitioner has not indi­
cated what it might be.

Citing the testimony of one of its trial witnesses, a professor 
of psychology, T.I.M.E.-D.C. asserts that he demonstrated re­
spondent’s statistics to be unreliable to predict the availability 
of blacks and Spanish-surnamed Americans to join the work­
force at the respective terminals (Br., pp. 19-20). Neither of 
the courts below found this witness’s testimony adequate to 
undermine respondent’s proof. Moreover, the witness acknowl­
edged that the only information available respecting black and. 
Spanish-surnamed American population was that utilized by 
the government (A. 564).



33

criminatees numbers more than 300, the use of statis­
tics is essential in establishing a pattern and practice 
of discrimination. Far from reflecting a standard of 
racial preference which Section 703 (j) prohibits, the 
use of these statistics is in an effort to determine 
whether the employer utilized legitimate and objective 
considerations in hiring in accordance with the Title 
Y II standard.43 That Section 703(j) is not intended to 
preclude such evidentiary showings is made clear in 
the legislative history of the 1972 Amendments to the 
Act, which indicates that Congress both knew and ap­
proved of court reliance on statistical evidence to 
draw inferences and, in appropriate cases, to shift the 
burden of proof.44 *

While the statistical evidence of gross disparities 
in the allocation of line driver jobs to minority and 
non-minority employees could alone have supported a

43 See remarks of Senator Humphrey, 110 Cong. Rec. 12723 
(1964) (A. 190); remarks of Congressman Celler, 110 Cong. Rec. 
1518 (1964) (A. 189).

44 Congress, in passing the 1972 Amendments to Title YII, 
was fully aware that the appellate courts were using severe 
statistical disparities as a basis for shifting the burden of proof. 
An amendment was introduced by Senator Ervin wdiich would 
have amended Section 703(j) to bar use by any federal agency 
or federal court of quotas, goals or other numerical ratios. Sen­
ator Ervin argued that Section 703(j) was being misconstrued 
to permit use of numerical ratios. The floor managers of the 
bill, Senators Williams and Javits, cited and relied inter alia 
upon United States v. Ironworkers Local 86,443 F.2d 544 (C.A. 9), 
and reprinted that opinion in full in the Congressional Record, 
118 Cong. Rec. 1665, 1671-1675 (1972). That opinion contains 
a classic statement of the courts’ reliance on statistical evidence 
to draw inferences and to shift the burden of proof, 443 F.2d at
551; 118 Cong. Rec. 1673, 1675 (1972). The Senate accepted the 
Williams/Javits position and voted to reject Senator Ervin’s 
amendment by a vote of 22-44 (118 Cong. Rec. 1676 (1972).



34

prima facie case, the statistical showing was also 
matched by compelling testimonial evidence.45 Numer­
ous experienced and qualified black and Spanish- 
sumamed drivers who applied for line driver posi­
tions, or who asked to transfer to such positions, had 
their requests ignored, or otherwise were denied the 
opportunity, after being given false information.46 
Moreover, there was substantial evidence that the 
practice of denying those minorities such positions 
was motivated by considerations of race and national 
origin.47

While both courts below noted that statistics may 
establish a prima facie case, both went on to consider 
the testimonial evidence and neither based its conclu­

46 Petitioner T.I.M.E.-D.C. also attacks the testimonial evi­
dence as involving incidents “too isolated in number and in time 
to serve as a basis for a finding of a systemwide pattern or 
practice of discrimination” (Br., p. 20). Testimony was taken 
from approximately ten percent of the members of the class 
for whom relief was sought. As the court of appeals noted: 
“The [ten] terminals at which the Government took depositions 
are spread throughout the entire T.I.M.E.-D.C. system”, and con­
tain seven of the ten largest line driver operations, domiciling 
1,171 line drivers (A.P. 26 and n. 30).

Petitioner’s reference to the period of time over which the 
incidents occurred appears to be intended as an attack upon 
the relevance of discriminatory acts occurring prior to the effec­
tive date of Title VII. Evidence of such pre-Act discrimination 
is relevant in two ways. First, it is evidence that there was a 
long-standing practice which may have continued past the Act’s 
effective date. Second, since part of respondent’s case charges 
that the seniority system perpetuates the effects of past discrim­
ination, evidence of pre-Act discrimination lays part of the 
ground work for that claim.

46 See pp. 9-10, supra.
47 See pp. 9-11, supra.



35

sion that a pattern of discrimination had been estab­
lished on the statistics alone (A.P. 60-61, 23-24; 
compare T.I.M.E.-D.C. Br., pp. 14-25). Thus, the 
court of appeals observed (A.P. 26) that there was 
evidence of more than 40 specific instances of discrim­
ination throughout the system of T.I.M.E.-D.C.—in­
stances often egregious and viewed as a whole quite 
definitely supporting the finding that a pattern and 
practice of discrimination occurred.

This confirmed the district court’s findings (A.P. 
60-61) that:

(a) Numerous qualified black and Spanish- 
surnamed American applicants who sought line 
driving jobs at the company over the years 
either had their requests ignored, were given 
false or misleading information about require­
ments, opportunities, and application proce­
dures, or were not considered and hired on the 
same basis that whites were considered and 
hired.

(b) Numerous qualified black and Spanish- 
sumamed American employees who have sought 
transfer to line driving jobs at the company 
have either been denied the opportunity to do 
so, or have not been permitted to transfer on 
the same basis as whites.

Because of the strong evidence of individual instances 
of discrimination,48 the inferences that would ordi­

48 Examples of race and national origin motivation include:
(a). R. D. Parker, a black city driver at the Memphis ter­

minal. When Parker was first hired in 1949, he was told by 
the terminal manager that “he didn’t  have any colored road 
drivers” but that Parker could work in the city. In 1956, when 
white city drivers at the terminal were allowed to drive extra 
road runs and Parker also requested them, Parker was in­



36

narily arise from the statistical evidence gain added 
force. I t was on the basis of “ [a]ll of the evidence” 
(A.P. 61), including that presented by petitioners in 
attempted rebuttal, that both courts below concluded 
that petitioners had engaged in a pattern of dis­
crimination against blacks and Spanish-sumamed 
Americans (A.P. 60-61).

Thus the issue petitioner attempts to raise (T.I.M.E.- 
D.C. Br., p. 14), whether, in the absence of testimonial 
evidence, statistics alone could be “ dispositive”, 
simply does not arise in this case. Rather this case 
presents the typical situation, where the court utilizes 
a combination of statistical and testimonial evidence 
to reach a reasoned conclusion regarding pattern and 
practice. Indeed, findings of discrimination against 
minorities in opportunities for line driver positions 
have been made and upheld based on similar testi­
formed by the terminal manager that the general office “was 
not going to let no colored drive the rigs up and down the 
highway.” (Summary of dep. of R. D. Parker, pp. 1-2, in 
P i’s Ex. 240 (A. 277-278).)

(b) . Feliberto Trujillo, a Spanish-surnamed American dock- 
man (checker) at the Denver terminal. When Trujillo applied 
for a line driver job in 1967, he was told by a terminal per­
sonnel officer that he had one strike against him. Trujillo asked 
what that was and was informed: “You’re a Chicano, and as 
far as we know, there isn’t  a Chicano driver in the system.” 
(Dep. of Feliberto Trujillo, pp. 6-7.)

(c) . Thomas W. White, a black city driver at the Los An­
geles terminal. After White filed a complaint with the State of 
California in 1961 over his inability to get a line driver job 
at the Company, he was assigned exclusively to the task of un­
loading blocks of rubber, a heavy, dusty and dirty job, for an 
eight to ten month period, although it was normal practice for 
the dispatcher to rotate such undesirable assignments among 
all the city drivers (A. 333-335).



37

monial and statistical showings in numerous appellate 
and district court decisions concerning the trucking 
industry.49 * 51

The carefully based findings below are not deficient 
because the courts rejected in this context the stand­
ards of proof which may be typical in an individual 
action for discrimination. In McDonnell Douglas Cor­
poration v. Green, 111 U.S. 792, this Court considered 
the ‘ ‘order and allocation of proof in a private, non­
class action challenging employment discrimination” 
(411 U.S. at 800). The Court held that an individual 
claiming that his application for reemployment was 
rejected because of his race must show as part of his 
prima facie case not only that discrimination appar­
ently occurred, but also that he was a victim of the 
alleged discrimination—including proof that a va­
cancy existed for which he was qualified and from 
which he was excluded.60 Only then would the burden 
shift to the employer to show a legitimate non- 
diseriminatory reason for the employee’s rejection.1

49 An extensive list of cases is collected in Teamsters Pet. 
16, n. 26.

60 The Court stated (111 U.S. at 802) : “The complainant m a 
Title V II trial must carry the initial burden under the statute 
of establishing a prima facie case of racial discrimination. This 
may be done by showing (i) that he belongs to a racial mi­
nority; (ii) that he applied and was qualified for a job for 
which the employer was seeking applicants; (iii) that, despite 
his qualifications, he was rejected; and (iv) that, after his re­
jection, the position remained open and the employer continued 
to seek applicants from persons of complainant’s qualifications.’

51 The Court, however, pointed out (411 U.S. at 802, n. 13) : 
“The facts necessarily will vary in Title V II cases, and the 
specification above of the prima facie proof required from re­
spondent is not necessarily applicable in every respect to differ­
ing factual situations.”



38

As this Court held in Franks v. Bowman Transpor­
tation Gosupra,  the order and allocation of proof 
are substantially different in a case alleging a pattern 
and practice of discrimination against a class of indi­
viduals. In a class action suit (or its counterpart in 
litigation by the government—a pattern and practice 
suit) the liability and remedy stages are typically 
split. The purpose of testimony at the liability stage 
is not to show that any particular individual would 
have obtained a specific job but for discrimination, 
but rather to support the inference of a pattern and 
practice of discrimination created by statistical evi­
dence. Consequently, not all individuals discriminated 
against need testify at the liability stage. As the court 
of appeals stated, “ [i]t would be contrary to a claim 
of this structure to have to offer testimony concern­
ing every member of the affected class” (A.P. 34),52 
Since the issue of whether a particular individual has 
a valid claim to relief is left to determination during

52 Petitioner T.I.M.E.-D.C. appeal’s to argue that the failure 
to apply the McDonnell-Douglas standard deprived it of an 
opportunity to rebut the testimonial evidence (Br., p. 22-25). 
That contention is without foundation. Petitioner cross-examined 
respondents’ witnesses and put on witnesses of its own. Despite 
this opportunity, the district court found that there were nu­
merous instances of discrimination by the Company against 
blacks and Spanish-surnamed Americans.

The district court further held that a case of individual dis­
crimination. had been made out with respect to thirty of the 
witnesses and that, as a result, they were entitled to relief (A.P. 
73-76). Those findings demonstrate the weight of the testimo­
nial evidence. While the court of appeals ruled that such a 
determination was not necessary at the liability stage of a 
pattern and practice suit, it upheld the district court’s findings 
(A.P. 33-34, 38).



39

the remedy stage, the pattern and practice finding 
cannot be challenged now on the basis that petitioner 
has not yet had the opportunity to demonstrate that 
individual class members were not victims of dis­
crimination. In Franks, the district court had denied 
seniority relief because of a lack of evidence regard­
ing vacancies and qualifications of individual class 
members and its “concern that some of the unnamed 
class members * * * may not in fact have been actual 
victims of racial discrimination.” 424 U.S. at 772. 
This Court ruled that seniority relief should be af­
forded to the class and that evidence as to individual 
injury would become material to defendant’s burden 
at the remedy stage when individual members sought 
to avail themselves of class relief. Thus the court of 
appeals here merely anticipated Franks in holding 
that “ [w] hat ever evidentiary hearings are required 
for individuals can well be postponed to the remedy” 
(A.P. 34).

Petitioners had the opportunity to introduce all 
their evidence as to the pattern and practice violation 
in the district court. They argued the significance of 
that evidence in that court and again in the court of 
appeals. Both courts found the evidence of a violation 
to be overwhelming. Finally, petitioners will have 
their opportunity in accordance with Franks to rebut 
the prima facie case as to individual claimants when 
class members seek their remedy. There is, accord­
ingly, nothing in this case warranting this Court’s 
reexamination of the concurrent findings of the two 
courts below.



40

II.

A SENIORITY SYSTEM THAT PENALIZES INCUMBENT EM­
PLOYEES WHO TRANSFER TO HIGHER PAYING, MORE 
ATTRACTIVE, TRADITIONALLY WHITE JOB CLASSIFICA­
TIONS FROM WHICH THEY PREVIOUSLY WERE EXCLUDED 
PERPETUATES THE EFFECTS OF A PATTERN AND PRACTICE 
OF RACIAL DISCRIMINATION AND VIOLATES TITLE VII

A. A SENIORITY SYSTEM W H ICH  REQUIRES VICTIMS OF RACIAL DIS­
CRIMINATION TO FORFEIT THEIR ACCRUED COMPETITIVE STATUS SE­
NIORITY IN  ORDER TO TRANSFER TO A JOB PREVIOUSLY SEGREGATED 
ON THE BASIS OF RACE, PERPETUATES THE EFFECTS OF PRIOR 
DISCRIMINATION

I t is the policy and practice of T.I.M.E.-D.C., pur­
suant to its agreements with the Teamsters, that an 
employee who moves between jobs covered by sep­
arate collective bargaining agreements forfeits his 
seniority for all purposes except fringe benefits (A. 
48, #15). The job of line driver, from which incum­
bent blacks and Spanish-surnamed Americans have 
been excluded, is covered by collective bargaining 
agreements separate from those which govern the less 
desirable jobs to which these minority employees were 
assigned. The Teamsters argue that the system evolved 
without racial intent (Br., pp. 19-33). Nevertheless, in 
order to claim a line driver opportunity that has been 
denied because of race, minority employees must be 
willing to forego the seniority that is already theirs 
because of service to the Company. Thus, the applica­
tion of the challenged seniority system to classes of 
T.I.M.E.-D.C. employees previously discriminatorily



41

excluded from line driver jobs perpetuates the effects 
of past discrimination.

The practical penalties attached to transfer by this 
policy operate to perpetuate the exclusion of incum­
bent minority employees from the position of line 
driver by requiring them to give up earned bidding 
rights and protection against layoff. Preservation of 
seniority may be essential to an employee’s economic 
survival; if employment decreases, he may find him­
self jobless. Thus, the loss of seniority becomes almost 
an absolute impediment to transfer. Even if he trans­
fers, he will never catch up to the level of his contem­
porary who was not subject to discrimination. He is 
locked into a less desirable job, in terms of working 
conditions and pay, than that obtained by his non­
minority counterpart, who was hired at the same time. 
The city or shop employee who transfers to a line 
driver position is treated as the junior-most person on 
the line driver list and placed forever behind his non­
minority contemporaries or juniors in company serv­
ice. For example, a black employee who was qualified 
to be a line driver in 1958, but because of discrimina­
tion was not given an opportunity to transfer to such 
a job until 1971, is placed in a competitive position 
j u n ior  to tha t' of a white hired in 1970. Under the 
seniority system, he continues to suffer the effects of 
discrimination, even after transfer, by being denied 
credit for the seniority he acquired while working in 
the only job he was able to obtain. By conditioning 
present and future advancement in line driver jobs 
on the basis of a qualification—line driver seniority— 
which blacks and Spanish-surnamed Americans have



42

been precluded from obtaining, this aspect of the seni­
ority system transforms past discrimination into pres­
ent and future discrimination. As the Fifth Circuit 
noted in a case involving facts similar to those here:

Every time a Negro worker hired under the old 
segregated system bids against a white worker 
in his job slot, the old racial classification 
reasserts itself, and the Negro suffers anew 
for his employer’s previous bias. [Local 189, 
United Papermakers v. United States, 416 F.2d 
980, 988, certiorari denied, 397 U.S. 919.]

By ensuring that the “compensation, terms, condi­
tions, or privileges of employment” will continue to be 
distributed on the basis of a prior racial classification, 
application of the seniority system to incumbent em­
ployees who are the victims of prior discrimination 
violates the explicit language of Section 703(a)(1) of 
Title VII.

Both before and after Griggs, every court of appeals 
confronting the issue has held that a “job” or depart­
ment seniority system is itself a violation of Title V II 
insofar as it applies to an affected class of incumbent 
minority employees who were assigned to less desira­
ble positions at a time when race or national origin 
precluded their consideration for better paying tradi­
tionally white jobs.53 Similarly, each of the appellate 
courts that has considered this issue has ruled that the

53 See, e.g., Local 189, United Papermakers v. United States, 
416 F.2d 980 (C.A. 5), certiorari denied, 397 U.S. 919; United 
States v. Navajo Freight Lines, Inc., 525 F.2d 1318 (C.A. 
9); Bowe v. Colgate - Palmolive Co., 416 F.2d 711 (C.A. 7); Rob- 
inson v. Lorillard Corp., 444 F.2d 791 (C.A. 4), certiorari dis­
missed, 404 U.S. 1006; Head v. Timken Roller Bearing Co., 486 
F.2d 870 (C.A. 6); United States v. N.L. Industries, Inc., 479
F.2d 354 (C.A. 8).



43

seniority system in the trucking industry perpetuates 
traditional practices of excluding minorities from line 
(or road) driver positions and, therefore, is unlaw­
ful as applied to those minority employees as­
signed to non-line jobs during the period of 
discrimination. Hairston v. McLean Trucking Co-, 520 
F.2d 226 (C.A. 4); Sabala v. Western Gillette, Inc., 
516 F.2d 1251 (C.A. 5), petitions for certiorari pend­
ing, Nos. 75-781, 75-788; Thornton v. Last Texas 
Motor Freight, 497 F.2d 416 (C.A. 6) ; United States 
v. Navajo Freight Lines, Inc., 525 F.2d 1318 (C.A. 9). 
The court of appeals below was correct in holding 
application of the seniority system to affected class 
members violative of Title V II once it found that “the 
minority employees were locked-in to the positions 
where they were initially discriminatorily assigned” 
(A.P. 24).

The Teamsters raise two “equitable” arguments 
challenging the finding that the seniority system that 
they negotiated violates Title VII. First they argue 
that since the Teamsters have no intent to discrimi­
nate, the fact that the seniority system perpetuates 
discrimination should not constitute a violation of the 
Act. However, as this Court stated in Griggs v. Duke 
Power Co., supra, 401 U.S. at 432, Congress directed 
the Act at the consequences of employment practices 
and “good intent * * * does not redeem employment 
procedures * * * that operate as ‘built-in headwinds 
for minority groups.” Since the challenged appli­
cation of the seniority system to which the union is a 
party continues the effects of past discrimination on 
members of the affected class and the union has

225-829 0 - 7 6 - 4



44

taken no steps to correct the practice, they have inten­
tionally engaged in an unlawful employment practice 
within the meaning of Title V II.54

The Teamsters’ second argument is that there is no 
need for the courts to order any relief with respect 
to the seniority system, since the contract grievance 
procedure is theoretically available for victims of dis­
crimination to use in obtaining their rights. However, 
as this Court made clear in Alexander v. Gardner - 
Denver Co., 415 U.S. 36, even where contract rights 
closely approximate statutory rights, a private collec­
tively controlled grievance procedure cannot serve as 
a replacement for court enforcement of the individual 
rights that Congress has established in Title VII. A 
fortiori, here, where the collective agreement to be en­
forced in the grievance procedure is itself the source 
of the challenged discriminatory practice, that proce­
dure could hardly serve as a substitute for the statu­
tory remedy.

B. SECTION 703 ( ll)  DOES NOT SAFEGUARD APPLICATIONS OF A SENIOR­
ITY SYSTEM W HICH DISCRIMINATE BETWEEN INCUMBENT WORKERS 
ON THE BASIS OF PRIOR DISCRIMINATORY' JOB CATEGORY ASSIGN­

MENTS

Section 703(h) of Title V II makes lawful differing 
conditions of employment “pursuant to a bona fide

54 “Under the Act, practices, procedures, or tests neutral on 
their face, and even neutral in terms of intent, cannot be main­
tained if they operate to ‘freeze’ the status quo of prior dis­
criminatory employment practices.” Griggs v. Duke Power Co., 
supra, 401 U.S. at 430; Local 189, United Papermakers v. 
United States, supra, 416 F.2d at 996-997; Robinson v. Loril- 
lard Corp., supra, 444 F.2d at 796; United States v. Central Motor 
Lines, Inc., 338 F. Supp. 532, 559 (W.D. N.C.) ; Cathey v. John­
son Motor Lines, Inc., 398 F. Supp. 1107, 1116 (W.D. N.C.).



45

seniority or merit system * * * provided that such 
differences are not the result of an intention to dis­
criminate because of race * * Since the purpose 
of Title V II is to eliminate all discriminatory employ­
ment practices in whatever form which create in­
equity through the mechanism of employment discrim­
ination (Alexander v. Gardner-Denver Co., 415 ILS. 
36, 44), Section 703(h) must be properly limited to 
accomplish its purposes without frustrating the per­
vasive remedial goals of the statutory scheme. Last 
Term in Franks v. Bowman Transportation Co., su­
pra, this Court refused to hold, in the absence of ex­
plicit language or a compelling legislative history, that 
Section 703(h) qualified or proscribed relief otherwise 
appropriate under the remedial provisions of Title 
VII, “ once an illegal discriminatory practice occur­
ring after the effective date of the Act is proved.” 
424 U.S. at 762. Instead, the Court held that Section 
703(h) is fully consistent with the awarding of relief 
designed to restore victims of employment discrimina­
tion to their rightful place in the seniority system and, 
indeed, that under the Act “rightful-place seniority, 
implicating an employee’s future earnings, job se­
curity, and advancement prospects, is absolutely es­
sential to obtaining this congressionally mandated 
goal.” 424 U.S. at 764-765 n. 21 (emphasis in orig­
inal) ; see also 424 U.S. at 767-768 and n. 28. As that 
holding indicates, neither the language of the statute 
nor its legislative history requires, or even suggests, 
that Section 703(h) should be read as protecting those 
applications of a seniority scheme which maintain 
discriminatorily segregated categories of incumbent



46

employees and sustain conditions of employment 
which result solely and directly from intentional racial 
discrimination.

The cloudy legislative history of Section 703(h), 
which is set out in Franks and will not he fully re­
peated here, does little in itself to illuminate the pre­
cise range of the protection provided by it.55 The 
purpose of the section, to the extent that it can be 
gleaned from the legislative history, was to protect 
the seniority system as a governing principle in labor- 
management relations and to preserve the seniority 
credit concepts of employee advancement from com­
plete overhaul as a result of passage of Title V II.56 
A requirement of preferential treatment based upon 
a history of pre-Act discrimination, it was feared, 
would mandate the immediate hiring of minority per­
sons and the awarding of preferences for blacks solely 
on account of their race.57 In order to allay such fears,

55 I t  should be recalled that most of the debate preceded the 
introduction of the substitute bill containing Section 703(h).

56'While there were some general statements that senioiity 
rights would not be affected, the discussions there were con­
cerned with the situation in which an employer had excluded 
blacks altogether from its work force, and with protecting pre­
viously accrued layoff rights of “white workers who were hired 
earlier” against later hired blacks.

Thus, the Clark-Case Interpretive Memorandum stated “if a 
business has been discriminating in the past and as a result 
has an all-white working force”, the employer “would not be 
obliged—or indeed, permitted—to fire whites in order to hire 
Negroes”, or “once Negroes are hired, to give them special 
seniority rights at the expense of the white workers hired 
earlier.” 110 Cong. Rec. 7213 (1964), quoted in full in Franks v. 
Bowman Transportation Go., supra, 424 U.S. at 759, n. 15. See, 
also, n. 62, infra.

57 See remarks of Senator Hill, 110 Cong. Rec. 468—488(1964).



47

the Act’s supporters pointed out that it would not 
require preferential treatment, such as the discharge 
of whites in favor of minorities or the award of fic­
tional seniority to newly hired minority employees.58

As the holding in Franks suggests, nothing in this 
history indicates that Section 703(h) was intended 
to protect those applications of a seniority system 
which would perpetuate the effects on incumbent em­
ployees of prior discriminatory job assignments; and 
the courts have unanimously held that Section 703(h) 
does not do so.59 The purpose expressed in the legisla­
tive history of protecting the seniority system as a 
governing principle is fully consistent with conferring 
their rightful place within a seniority system on in­
cumbent minority employees who would otherwise be 
locked-in to less desirable jobs by an application of 
the seniority system which perpetuates the effects of 
an original discriminatory assignment.60

58 I t was in this context that they stated that it would oper­
ate prospectively and would protect existing seniority lists. See 
questions and answers to questions propounded by Senator 
Dirksen, quoted in Franks, supra, 424 U.S. at 760-761, n. 16; 
Note, Title V I I , Seniority Discrimination, and the Incumbent 
Negro, 80 Harv. L. Rev. 1260, 1271 (1967).

59 United States v. Chesapeake and Ohio Ry. Co., 471 F.2d 
582, 587-588 (C.A. 4); United States v. Jacksonville Terminal Co., 
451 F.2d 418, 453 (C.A. 5), certiorari denied, 406 U.S. 906; United 
States v. Bethlshem Steel Gorp., 446 F.2d 652, 661-662 (C.A. 2), 
Local 189, United Papermakers v. United States, supra, 416 F.2d 
at 987-988, 994-995; Quarles v. Philip Morris, Inc., 279 F. Supp. 
505,515-517 (E.D. Va.).

60 The discussion in the legislative history of Section 703(h) 
was not directed at segregated work forces or the effect of 
denying to blacks who had been excluded from consideration 
for the more desirable, higher paying jobs because of their race 
the right to use their accumulated seniority or any portion



48

Where seniority has been earned, albeit in a less 
desirable job category, application of that seniority 
(within the existing seniority system) in another, 
more desirable job category, for an individual quali­
fied to fill the more desirable job, neither abrogates the 
existing seniority system nor threatens the continued 
vitality of seniority systems generally. Note, supra, 80 
Harv. L. Rev. at 1271. See, Local 189, United Paper- 
makers v. United States, supra, 416 F.2d at 995. 
Rather than making seniority illegal, Title V II en­
forcement merely means that earned seniority will 
be protected within the established seniority system 
when the victims of discrimination take their rightful 
place in job categories from which they previously 
were excluded.

Indeed, seniority systems which perpetuate cate­
gories of employment which were filled on a racially 
discriminatory basis fall within the express proviso to 
Section 703(h) excluding from that section’s protec­
tion “ differences” in conditions of employment that 
are “ the result of an intention to discriminate because 
of race, color, religion, sex, or national origin * * 
Where the minority employee was hired into a system 
embodying discriminatoiily segregated lines of pro­
gression, job categories, or departments and accrues 
years of seniority, the continued application of sepa­
rate seniority systems to him is at the crux of his dis­
crimination injury because it perpetuates the effects of
thereof as the basis for competing in those jobs. Note, -supra, 
80 Harv. L. Rev. at 1271; Gould, Seniority and the Blank Worker: 
Reflections on Quarles and Its  Implications, 47 Tex. L. Rev. 1039, 
1042 (1969); Note, Civil Rights-—Racially Discriminatory Em ­
ployment Practices Under Title V I I , 46 N.C.L. Rev. 891, 895 
(1968).



49

the intentionally discriminatory job assignment 
pattern.

As to such employees, the separate conditions of 
employment caused by the seniority system are Tin- 
protected by Section 703(h) because they “ are the 
result, of an intention to discriminate because of 
race.” 61 Indeed, it would be anomalous for Title VII 
to prohibit the exclusion of minorities from certain 
job categories and then insulate the seniority mecha­
nism which implements and gives continuing effect to 
prior intentional discrimination involving precisely 
that exclusion.

Indeed, as the court below held, the rightful-place 
rationale subsequently adopted by this Court in 
Franks, although applied in that case only to pro­
viding a seniority remedy for employment discrimina­
tion which occurred after the effective date of Title 
VII, applies as well to the post-Act application of 
seniority mechanisms to deny to the victims of dis­
crimination their full earned seniority (post-Act and 
pre-Aet, from the time they were—or absent discrimi­
nation would have been—qualified for the job) in the 
job from which they previously were discrimi- 
natorily excluded.62 In the present case, not only does

01 “The act does not condone present differences that are the 
result of intention to discriminate before the effective date of 
the act, although such a provision could have been included in 
the act had Congress so intended) Quarles v. Philip Morris, Inc., 
279 F. Supp. 505, 518 (E.D. Va.). See Cooper and Sobol, Seniority 
And Testing Under Fair Employment Laws: A General A p­
proach To Objective Criteria Of Hiring And Promotion., 82 Harv. 
L. Rev. 1598,1613 (1969).

62 Smilarly, the Interpretive Memorandum introduced into the 
Congressional Record by Senators Clark and Case in re-



50

the post-Act application of the seniority system to 
perpetuate discrimination, itself constitute the req­
uisite statutory violation,* 63 * but, in addition, the pat­
tern and practice of discriminatory refusal to trans­
fer to be remedied here is a continuing violation 
which (with respect to some individuals) extends over 
both a pre-Act and post-Act period.61

Finally, as this Court recognized in F ra n k s  (424 
U.S. at 764-765 n. 21), any doubt that Section 703(h) 
was not intended to protect particular applications of 
a seniority system of the sort involved in this case was 
resolved by the legislative history of the amendments 
to Title V II contained in the Equal Employment 
Opportunity Act of 1972. That legislative history is 
replete with references to the lower court cases hold­
ing that Section 703(h) did not protect such applica­
tions of seniority systems, including Q uarles v. P h ilip  
M orris, In c ., su p ra ; Local 189, U n ited  Paper-w orkers 
v. U nited  S ta te s , su p ra ;  and B ow e  v. C olgate-P alm ­
olive Co., 416 F. 2d 711 (C.A. 7), e.g., S. Rep. No. 92-

sponse to attacks on the bill’s effect on employee hiring and 
seniority rights, noted that: “ [WJhere waiting lists for employ­
ment or training are, prior to the effective date of the title, 
maintained on a discriminatory basis, the use of such lists after 
the title takes effect may be held an unlawful subterfuge to 
accomplish discrimination” 110 Cong. Rec. 7213 (1964).

63 The district court has not yet established the qualification 
date, if any, for each member of the affected class.

s* Local 189, United Paper-makers v. United States supra, 416 
F. 2d at 995; Quarles v. Philip Morris, Inc., supra, 279 F. Supp. 
at 517; Note, supra, 80 Harv. L. Rev. at 1270.



51

415, 92d Cong., 1st Sess. 5, 8 (1971). Congress not only 
left the substantive provisions of Title V II un­
changed, but specifically endorsed the interpretation 
which had prevailed in the courts:

In any area where the new law does not ad­
dress itself, or in any areas where a specific 
contrary intention is not indicated, it was 
assumed that the present case law as developed 
by the courts would continue to govern the 
applicability and construction of Title VII. 
[Section-By-Section Analysis of H.R. 1746, 
accompanying the Equal Employment Oppor­
tunity Act of 1972-Conference Report, 118 
Cong. Rec. 7166 (1972)].

Congress’ endorsement of court decisions treating 
applications of seniority systems which perpetuate the 
effects of prior discrimination on incumbent employees 
as subject to the prohibitions of Title V II illuminates 
the meaning of Section 703(h) and is entitled to sub­
stantial weight. See National Labor Relations Board 
v. Bell Aerospace Co., 416 U.S. 267, 275; Red, Lion 
Broadcasting Co. v. Federal Communications Com­
mission, 395 U.S. 367, 380-381. Especially in light of 
this congressional reconfirmation of the broad purpose 
of Title V II to root out “practices that are fair in 
form, but discriminatory in operation” (Griggs v. 
Duke Power Co., supra, 401 U.S. at 431), there is no 
reason to interpret Section 703(h) so as to deny pro­
tection to a generation of incumbent minority work­
ers, who have worked under a discriminatory system.65

65 The seniority cases cited in the legislative history involved 
perpetuation of discriminatory exclusion from traditionally 
white jobs by the application of a racially neutral seniority 
system, rather than discrimination in initial hiring. See Franks 
v. Bowman Transportation Co., supra, 424 U.S. at 764-765 
n. 21.



52

I I I

THE COURT OF APPEALS CORRECTLY RULED THAT IN A 
CASE WHERE A PATTERN AND PRACTICE OF DISCRIMINA­
TION BEEN PROVED AN INCUMBENT MINORITY EMPLOYEE 
SEEKING RIGHTFUL PLACE SENIORITY RELIEF WHO IS A 
MEMBER OF THE AFFECTED CLASS (1) IS ENTITLED TO A 
REBUTTABLE PRESUMPTION THAT HE WAS A VICTIM OF 
DISCRIMINATION, AND (2) NEED NOT NECESSARILY HAVE 
UNSUCCESSFULLY APPLIED FOR A VACANT, RIGHTFUL 
PLACE JOB TO BE ENTITLED TO RELIEF

Petitioners do not appear to challenge the princi­
ple, established by this Court’s decision in Franks v. 
Bowman Transportation Go., supra, that rightful- 
place relief for the victims of discrimination may in­
volve full seniority transfer based on accrued company 
seniority. Nevertheless, they object to the court of ap­
peals’ decision on two grounds. First, they argue that 
the district court had discretion to award relief based 
upon the degree of injury demonstrated by evidence 
introduced in making the pattern and practice case 
(T.I.M.E.-D.C. Br., pp. 25-27; Teamsters Br., pp. 
43-46). Second, they claim that by not applying the 
McDonnell Douglas standards for proof of injury, the 
court of appeals awarded preferential relief to all 
minority employees irrespective of injury, in effect 
creating a racial preference system (T.I.M.E.-D.C. 
Br., pp. 28-32; Teamsters Br., pp. 47-54). Petitioners 
are wrong on both counts.

There is no doubt that the fashioning of Title VII 
remedies ordinarily lies within the discretion of the 
district court. But that discretion must be governed by 
sound legal principles and when a district court’s lim­



53

itations on remedy, if applied generally, would “frus­
trate the central statutory purposes of eradicating dis­
crimination throughout the economy and making per­
sons whole for injuries suffered through past discrimi­
nation,” the district court must be reversed. Albe­
marle Paper Co. v. Moody, supra, 422 U.S. at 421 
(footnote omitted). As this Court reiterated in revers­
ing a district court’s remedial order in Franks, that 
discretion is vested, not for the purpose of limiting 
appellate review of trial courts, but “ rather to allow 
the most complete achievement of the objectives of 
Title Y II that is attainable under the facts and cir­
cumstances of the specific case” (424 U.S. at 770-771).

1. The court of appeals correctly rejected the dis­
trict court’s allocation of relief based upon evidence 
of “degree of injury” submitted during the liability 
stage of this pattern and practice case. That allocation 
was inconsistent with Title V II’s proper enforcement 
in two ways. First, it would require the government 
in proving a pattern and practice case to introduce 
testimony as to every alleged victim of discrimination 
in order to make the required showing that individual 
injury occurred in every instance. That requirement 
would essentially destroy the class-action nature of a 
pattern and practice suit and transform it into a mere 
aggregation of individual claims as to which a pattern 
and practice finding would have little, or no, signifi­
cance. As the court of appeals stated, “ [i]t would be 
contrary to- a claim of this structure to have to offer 
testimony concerning every member of the affected 
class” (A.P. 34). Such a requirement would place an 
enormous practical burden on the government, and



54

consume immense judicial time without warrant. “ [I]t 
would defy reason and waste precious judicial re­
sources for the Court either to require or permit in­
dividualized proof for every member of a class here 
numbering nearly 400 but frequently involving thou­
sands” (A.P. 34).

The district court’s limitation on relief based on 
proof of injury at the pattern and practice trial stage 
was improper for a second and at least equally im­
portant reason. The district court placed the burden 
of identifying who was a victim of discrimination on 
the wrong party, denying relief where members of the 
affected class could not provide “clear and convinc­
ing” evidence that they were victims of individual 
discrimination (A.P. 64r-65). This is precisely contrary 
to this Court’s subsequent specification in Franks of 
the proper allocation of proof in such a case. There 
this Court explicitly held that once a pattern and 
practice case has been made out in a case seeking class 
relief, the burden shifts to the defendants to prove 
that the members of the injured class were not vic­
tims: “But petitioners here have carried their burden 
of demonstrating the existence of a discriminatory 
hiring pattern and practice by the respondents and, 
therefore, the burden will be upon respondents to 
prove that individuals who reapply were not in fact 
victims of previous hiring discrimination” (424 U.S. 
at 772).66 Absent such proof at the remedy stage, here,

66 See, also, United States v. Bethlehem Steel Corp., supra, 
446 F.2d at 660; United States v. Jacksonville Terminal Go., 
supra, 451 F.2d at 453; United States v. Chesapeake and Ohio 
Ry. Co., supra, 471 F.2d at 593; United States v. St. Louis-San 
Francisco Ry. Go., 464 F,2d 301, 310 (C.A. 8), certiorari denied, 
409 U.S. 1116; United States v. Central Motor Lines, Inc., supra, 
338 F. Supp. at 560.



55

as in Franks, each member of the affected class is 
“presumptively entitled” to relief (ibid.).

Thus, as the court of appeals implicitly recognized, 
the restructuring of the case accomplished by award­
ing full class relief, once plaintiffs demonstrate a pat­
tern and practice of discrimination, involves not 
simply the question of when proof will be intro­
duced, but by whom the subsequent evidentiary burden 
will be carried. Contrary to petitioner’s contention 
(T.I.M.E.-D.C. Br., p. 32), they must do more than 
simply return to the district court to retry the evi­
dence ; they must decide whether they possess evidence 
to rebut the presumption that each member of the 
affected class is a victim. Thus, the shifting of the 
evidentiary burden may either substantially limit, or 
eliminate altogether, the necessity for further proceed­
ings. Only in those instances where petitioners believe 
they have that rebuttal evidence will an evidentiary 
hearing be required at the remedy stage.67

2. Assuming that the determination of who is to be a 
recipient of the full class relief is thus to be decided 
at the remedy stage in accordance with the Franks 
presumption, the petitioners urge that the rule estab­
lished by the court of appeals will not properly 
identify the victims of discrimination. Petitioners

67 The references to the court’s opinion cited by petitioner 
T.I.M.E.-D.C. (Br., p. 25) to support its allegation that the 
court of appeals has foreclosed such proof relate only to the 
inappropriateness of introducing such evidence at the liability 
stage and of limiting seniority relief to those who have carried 
the burden of proving that they have suffered discrimination 
(A.P. 34, 39).



56

appear to believe that McDonnell Douglas and Franks 
established standards for identifying the victims of 
discrimination in all Title V II cases which, if aban­
doned, would allow every minority employee to obtain 
a “preference” regardless of actual injury.

In McDonnell Douglas a minority individual, who 
claimed that his job application was rejected for racial 
reasons, was required to prove that he applied, that he 
was qualified, and that other applicants were sought 
for the vacancy after he was rejected. The Court care­
fully noted that it was addressing the “ issue * * * 
[of] the order and allocation of proof in a private, 
non-class action challenging employment discrimina­
tion” (411 U.S. at 800; emphasis added), and that 
even in that context this showing “is not necessarily 
applicable in every respect to differing factual situa­
tions” (411 U.S. at 802, n. 13). Franks, however, in­
volved a finding of a pattern and practice of dis­
crimination in a suit by class plaintiffs; and the Court 
in that context stated that, should defendant attempt 
to prove that a minority individual was not “in fact 
discriminatorily refused employment”, evidence of a 
lack of vacancies or a lack of qualifications “would 
of course be relevant” (424 U.S. at 733, n. 32). Here 
the court of appeals held, in the presence of a pattern 
and practice finding, and a seniority system which 
perpetuates the discrimination, that incumbent em­
ployees could not be excluded from relief merely be­
cause they had not applied for a vacant job 
(which would have been, and generally have been per­
ceived to be, discriminatorily unavailable to them



57

under the Company’s practice), as long as they were 
qualified and have a present desire to transfer.

This Court has never established an immutable rule 
for identifying the victims of discrimination in a Title 
V II suit; nor should it. The propriety of various 
logical inferences and the necessity for various kinds 
of specific proof must necessarily depend on the type 
of proceeding (class or individual), the employment 
practice discriminatorily exercised (new employment 
or transfer) and the particular factual circumstances 
of each case. Cf. McDonnell Douglas Corporation v. 
Green, supra, 411 U.S. at 802, n. 13; McDonald v. 
Santa F. Trail Transportation Co., No. 75-260, decided 
June 25, 1976, slip op. 5, n. 6. Tor example, requir­
ing an actual application for a vacant position may in 
some factual situations be unreasonable and defeat the 
congressional mandate to provide a “ whole remedy” 
to discrimination. Three factors combine to make the 
vacancy and application requirement unnecessary 
here: (1) the presence of a pattern and practice of 
discrimination over an extended period of time in 
which numerous vacancies normally would occur, (2) 
the fact that the class is limited to a specific category 
of incumbents, not all of whom necessarily will desire 
or qualify for a transfer when an appropriate vacancy 
occurs, and (3) the presence of a seniority system 
perpetuating the discriminatory pattern.

The application and vacancy requirements may 
often be inappropriate in a Title V II pattern and 
practice suit even though both requirements may be 
entirely necessary in an individual discrimination 
claim. In an individual claim, the inquiry as to in­



58

jury focuses on a particular point in time where the 
presence of an application and a vacancy from which 
the applicant was excluded is the typical indication 
of the fact of injury. By contrast, a pattern or prac­
tice suit is not fixed at any temporal point, but by its 
nature refers to regularized behavior over time. The 
repetitious and continuing quality of the pattern and 
practice has the practical effect of deterring both 
initial and follow-up applications which in turn makes 
it more unlikely to match an application with an open­
ing.

The courts have recognized that a practice of sys­
tematically excluding minorities from consideration 
for certain categories of jobs inevitably deters those 
minorities from applying for those jobs even though 
they are desirous of obtaining them.68 As the Fifth 
Circuit explained in Bing v. Roadway Express, Inc., 
485 F. 2d 441, 451:

If  an employee realizes full well that blacks 
simply are not hired as road drivers, why 
should he bother to apply? Certainly a few, 
such as Bing, have the courage to fight “the 
system”, but it is equally certain that others

68 Bing v. Roadway Express, Inc., 485 F. 2d 441, 451 (C.A. 
5); United States v. N. L. Industries, Inc., 479 F. 2d 354, 369 
(C.A. 8) ; Jones v. Lee Way Motor Freight, Inc., supra, 431 F.2d 
at 247; Hairston v. McLean Trucking Co., supra, 520 F. 2d at 
231-232; Equal Employment Opportunity Commission v. Detroit 
Edison Co., 515 F. 2d 301, 316 (C.A. 6), petitions for certiorari 
pending, Nos. 75-220, 75-221, 75-239, 75-393; Rodriguez v. East 
Texas Motor Freight, 505 F. 2d 40, 55 (C.A. 5), certiorari granted, 
May 24, 1976, Nos. 75-651, 75-715, 75-718; Sagers v. Yellow 
Freight System, Inc., 529 F. 2d 721, 731 (C.A. 5) ; United States v. 
Pilot Freight Carriers, Inc., 6 EPD ([8766, p. 5344, 6 FE P  Cases 
280, 284 (M.D. N .C.); Love v. Pullman Co., 11 EPD ([10,858, 
p. 7621,12 FE P  Cases 332,343 (D. Colo.).



59

must have been intimidated and discouraged by 
Roadway’s discriminatory practices.

To require that minority employees have applied for 
transfer in order to qualify for relief penalizes them 
for failing to perform what, as they knew and the 
proof demonstrates, would have been a vain and use­
less act.

The fact that the class of affected individuals is 
composed of incumbent minority employees makes it 
especially likely that they both knew of, and re­
sponded to, the pattern of segregated jobs; indeed 
there is evidence in the record to that effect.69 The 
fact that the case is limited to incumbents has other 
obvious implications. Absent discrimination, it is rea­
sonable to assume that vacant line driver jobs would 
have been offered first to this qualified pool of avail­
able, experienced individuals without any necessity 
that they apply; hence, they may properly be treated 
as constructive applicants for all job vacancies which 
became available after they were hired. The presence 
of a limited incumbent class eliminates the need for 
sifting out the affected class from the minority public 
at large, one of the functions that the application

69 For example, John Batchelor, a black city operations em­
ployee at the Atlanta terminal, testified that he did not seek 
extra line driver runs even though he was interested in such 
work because he was aware that other black city operation em­
ployees had sought such runs and had been refused (summary 
of dep. of John Batchelor, p. 2 in P i’s Ex. 240 (A. 277-278)). 
Extra line driver runs at the Atlanta terminal led to regular 
line driver positions for white city operation employees, includ­
ing employees with less seniority than Batchelor (summary of 
dep. of John Batchelor, supra, p. 2; P i’s Exs. 102,104 (to Atlanta 
deps.); summary of dep. of Jackson B. Stroud, Operations 
Manager (Atlanta), pp. 4—5 in P i’s Ex. 240 (A. 277-278)).

2 2 5 - 8 2 9  0 - 7 6 - 5



60

requirement normally performs. In a case like Franks 
where hiring discrimination is claimed by non-incum­
bents, applications by members of the excluded 
minority group serve to distinguish them from all 
other members of that group. Here there is no 
difficulty in identifying the members of the class 
subject to discrimination; they are incumbent em­
ployees employed by the company in less desirable 
jobs during the period of discrimination.

Finally, the presence of a seniority system reinforc­
ing the discriminatory hiring practice is an additional 
factor making a vacancy and application requirement 
inappropriate here. Once the incumbents began to 
accrue time at the company, the seniority system acted 
as an added deterrent to any transfer application. 
Even when the pattern of discrimination had ceased, 
incumbent minority employees would be unlikely to 
apply for transfer to traditionally white jobs because 
they would forfeit all of their competitive status 
seniority and therefore their job security.70

The court’s ruling does not establish an automatic 
racial preference for all minority employees. The 
class is pared down at the outset to incumbents rather 
than non-employed applicants, or potential applicants, 
from the community. To obtain the class relief, the 
incumbent must also have been qualified for a line

70 Sabala v. Western Gillette, Inc., supra, 516 F.2d at 1264; 
Hairston v. McLean Trucking Go., supra, 520 F.2d at 231-232; 
United States v. N. L. Industries, Inc,., supra, 479 F.2d at 360.



61

driver job during the time the Company was discrim­
inating in the employment of line drivers. In addition, 
he must presently be qualified and possess a present 
desire to transfer to his rightful place job (A.P. 95- 
96) .71

Finally, the Company must have been unable to 
prove through relevant evidence, other than the lack 
of an application, that he was not, in fact, a victim 
of racial discrimination. Admittedly, the standard that 
the court of appeals found proper for this case does 
not provide the precision in the identification of a vic­
tim that may be required in an individual discrimina­
tion suit, but it is identification with a fair degree of 
specificity. More importantly, it may be the fairest 
approximation of fact of injury that can be obtained 
in the context of the pattern of discrimination demon­
strated here. The contrary rule, requiring actual ap­
plications for vacancies, would permit the discrimi­
nating party to benefit from a pattern and practice 
so pervasive that it discouraged applications by qual­
ified incumbents.

The burden required of affected minority individ­
uals who seek the benefits of class relief should be 
judged in light of the limited practical impact on the 
Company and innocent non-minority employees should 
an enlarged number of incumbents achieve designa­
tion as victims of discrimination. The Company’s back

71 I t  is unlikely that an employee with a present desire to 
transfer would not have transferred to a line driver position in 
the past had he not been precluded by discrimination and by 
penalties imposed on transfer by the seniority system.



62

pay financial burden was set by tne consent decree 
and will not be affected by the number of individuals 
obtaining relief (A.P. 91-92). The legitimate busi­
ness interests of the Company will not be interfered 
with, since no individual will be permitted to transfer 
to a line driver position unless he is presently quali­
fied under objective standards established by the con­
sent decree (A.P. 96-97, 34-35). See Franks, supra, 
424 U.S. at 772, n. 31. Nor will innocent non-minority 
employees suffer substantial injury. No non-minority 
employee loses any seniority which he has already 
gained; no non-minority employee is bumped from his 
job. They and minority employees who obtain relief 
will simply compete for future vacancies utilizing neu­
tral seniority principles.72

While it may be time that not all members of the 
affected class would have bid for and obtained line 
driver jobs, it is also true that not all members of the 
affected class will wish to transfer or will be found 
qualified for such jobs even after modification of the 
seniority system. United, States v. Bethlehem Steel 
Corp., supra. As this Court has recognized, it is not 
probable in instances of class-based relief that all 
members of the class will actually apply for and ob­
tain relief. Franks v. Bowman Transportation Co., 
supra, 424 U.S. at 776, n. 36. Extensive experience 
with modifications of seniority systems strongly sug­

72 In this regard, the seniority carryover date for the minor­
ity transfers is designed to approximate the seniority the mi­
nority employees would have had absent discrimination; they 
will not be given any seniority for time worked at the Company 
prior to their (actual or constructive, if delayed by discrimina­
tion) obtaining of the requisite qualifications for line driver.



63

gests that advancing age and other problems may 
cause many fewer members of the affected class to be 
able to transfer than would have been expected had 
such positions initially been available to all regardless 
of race and national origin.

The absence of concrete indicators like applications 
for specified vacancies, of course, forces reliance upon 
inferences drawn from the full range of facts before 
the court. As a result, various courts have utilized di­
verse qualification date formulae in implementing 
rightful-place principles within the particular factual 
context that each faces (T.I.M.E.-D.C. Br., pp. 28- 
29). A violation of Title Y II may itself be proven 
from evidence that implies, rather than explicitly 
demonstrates, the existence of unlawful discrimina­
tion. Once a pattern of discrimination against a class 
has been established, there is greater reason to permit 
reasonable inferences to be drawn from the evidence, 
in order to accord an effective remedy.

The court of appeals concluded from the facts of 
this case that it would be reasonable to infer that 
those incumbents who express a present desire to 
transfer would have chosen to do so when they became 
qualified, and would, absent discrimination, have ob­
tained such a position when the next vacancy arose in 
that category. This is as sound a conclusion as the 
reasonable inferences recognized by this Court in 
constructing seniority relief in Franks, notwithstand­
ing the dissenting observation that such an award was 
based upon the fiction that the discrimination victim 
had worked since he was denied employment, and upon 
the “ assumption that nothing would have interrupted



64

his employment, and that his performance would have 
justified a progression up the seniority ladder.” 424 
U.S. at 792 (Mr. Justice Powell, dissenting); see also 
424 U.S. at 767-768. Where, as in this case, adequate 
Title Y II relief cannot be accorded without the fair 
use of inferences informed by the entire factual con­
text, the court of appeals was correct in holding that in­
jury should reasonably be inferred in the absence of an 
actual application for a vacancy.

IY
THE COURT OP APPEALS CORRECTLY HELD THAT THE 

RIGHTS OP MEMBERS OF THE AFFECTED CLASS TO COM­
PETE FOR FUTURE VACANCIES AT THEIR HOME TERMI­
NALS OR ELSEWHERE SHOULD NOT BE SUBORDINATE 
EITHER TO THE RIGHTS OF EMPLOYEES TRANSFERRING 
FROM OTHER TERMINALS, OR TO THE RIGHTS OF EM­
PLOYEES WITH LESS SENIORITY WHO ARE ON LAYOFF

Petitioners challenge two additional rulings by the 
court of appeals applying rightful-place principles to 
this factual record, both of which concern the rights of 
members of the affected class to compete against line 
drivers (Teamsters Br., pp. 5U55; T.I.M.E.-D.C. Br., 
pp. 34-35). The first ruling establishes a preference 
for individual discriminatees awarded carryover se­
niority over employees from other terminals for the 
purpose of filling future vacancies at the discrimina- 
tee’s home terminal (A.P. 42). The second directs that 
members of the affected class may compete against 
any line driver on layoff for a particular vacancy 
(other than a purely temporary vacancy) on the 
basis of carry-over seniority (A.P. 41). Both decisions



65

require temporary modification of collective bargain­
ing agreements (A.P. 81, para. Y, 99 #10) with 
respect to member of the affected class in an effort 
to make relief more effective in terms of what the 
court of appeals found to be “the practical realities 
and necessities inescapably involved in reconciling 
competing interests * * * Franks v. Bowman Trans­
portation Go., supra, 424 TJ.S. at 777-778, n. 39.

The court of appeals provided a preference for 
members of the affected class seeking to bid on home 
terminal vacancies, as against drivers from other ter­
minals, as the most appropriate way to approximate 
rightful-place relief without needless delay.73 A home 
terminal preference simply permits members of the 
affected class a better chance to obtain a line driver 
position at their home terminals—the places where 
they would have been hired in the absence of discrimi­
nation. While this home terminal preference repre­
sents a modification of the Southern Conference

73 At the Atlanta terminal, for example, approximately 22 
line drivers, more than 1/3 °f the 57-person line driver comple­
ment there as of January 1970, had transferred in from other 
terminals pursuant to the modified seniority system (summary 
of dep. of Jackson B. Stroud, Operations Manager (Atlanta), 
pp. 6-7, in P i’s Ex. 240 (A. 277-278); P i’s Ex. 99 (to Atlanta 
deps.) (line driver seniority roster)). Although no new line 
drivers had been hired “off the street” in Atlanta since 1966, 
a number of the line drivers who transferred in filled actual 
job openings (summary of dep. of Jackson B. Stroud, supra, 
pp. 4, 7-8). Thus, if members of the affected class at Atlanta 
were not given as part of their relief preference in filling future 
vacancies there ahead of line drivers transferring in from other 
terminals, it could well be many years before they would have 
an opportunity to fill a future vacancy at that terminal.



66

seniority system, it is, in fact, consistent with the 
general rules of bidding at home terminals.74 Appli­
cation of the Southern Conference rule might prevent 
discrirninatees from ever exercising their seniority 
rights to obtain line driver jobs. While the home 
terminal preference relief implicates the interest of 
non-minority (and perhaps even of some minority) 
drivers who may wish to take advantage of what 
would otherwise be their Southern Conference trans­
fer rights, it properly applies to the circumstances 
here, the principle that “a sharing of the burden of 
the past discrimination is presumptively necessary.” 
Franks v. Bowman Transportation Cos upr a ,  424 
U.S. at 777.

Similarly, application of rightful-place principles 
requires that laid-off non-minority employees with 
less seniority not be given priority over discrirninatees 
with longer accrued seniority.75 If  a member of the

74 While we recognize that affected class members in the 
Southern Conference, under the court’s ruling (A.P. 43), may 
exercise carryover seniority rights at other terminals, that 
right is subordinated to the rights of class members already at 
those terminals, and is likely to have little practical effect. I t 
does, however, provide some prospect for ultimate relief for 
individuals whose relief at their home terminals may be long 
delayed for lack of vacancies (possibly due to the previous 
transfer in of line drivers from other terminals under the 
Southern Conference rule).

75 The court’s decision to grant affected minority employees 
rightful-place seniority relief does not involve “bumping” of 
incumbent white line drivers. In  accordance with applicable 
collective bargaining agreements, currently employed line drivers 
bid on regular runs and runs off the extra board at least once 
every 12 months (A. 825-826). Under this system permanent 
vacancies occur only when a road driver must be replaced or



67

affected class is senior to the laid-off non-minority 
employee, he should surely have a right to bid for the 
vacancy which absent discrimination he might previ­
ously have filled. To deny those bidding opportunities 
to members of the affected class in favor of their less 
senior white competitors on layoff would needlessly 
perpetuate past discrimination by limiting the number 
of job openings for which victims of discrimination 
may compete, thereby depriving them of the oppor­
tunity to reach their rightful place within a reason­
able period.76

when an increase in operations creates a new position. A minor­
ity employee who obtains class relief will be able to bid for 
jobs only where a vacancy has occurred, and then he must 
compete with all other drivers on the basis of their seniority 
(A. 825). Moreover, minority class members will not be per­
mitted to bid against drivers who have been only temporarily 
laid off. While the court of appeals has not specified the 
definition of temporary lay offs, that can properly be accom­
plished on remand. See Freeman v. Motor Convoy, Inc., 409 
F. Supp. 1100, 1126 (N.D. G a.); United States v. Florida East 
Coast Railway Co., 7 EPD 1)9218, p. 7067, 7 FE P  Cases 540, 
556 (M.D. Fla.).

76 United States v. Hayes International Cory., 456 F. 2d 112,118 
(C.A. 5); United States v. Jacksonville Terminal Co., supra, 
451 F. 2d at 450-451; Roioe v. General Motors Corp., 457 F. 2d 
348, 358 (C.A. 5); United States v. Chesapeake and Ohio Ry. 
Co., supra, 471 F. 2d at 589. See also Williamson v. Bethlehem 
Steel Corp., 468 F. 2d 1201, 1205 (C.A. 2), certiorari denied, 
411 U.S. 931.



68

There is, in sum, no reason to modify the court of 
appeals’ careful determination as to the “ ‘special 
blend of what is necessary, what is fair, and what is 
workable,’ ” in this case. Franks v. Bowman Trans­
portation Co., supra, 424 U.S. at 778, n. 39.”

77 The Teamsters do not pursue one of the questions it pre­
sented in its petition for a writ of certiorari, i.e., whether it 
was proper to award seniority relief in the absence of the 
Teamsters locals which formally signed the collective bargain­
ing contracts with the Company, contending that it is prema­
ture at this time (Teamsters Br. 3, n. 3.) The record (see 
pp. 11-13, supra.) and the case law amply support the deter­
mination of both courts below that the Teamsters International 
was a proper party to represent and defend the seniority status 
of its members and that the locals were not indispensable par­
ties. United States v. Navajo Freight Lines, Inc., supra, 525 
F.2d at 1321-1322; Sagers v. Yellow Freight System , Inc., supra, 
529 F.2d at 737-738; United States v. Pilot Freight Carriers, 
Inc., 54 F.R.D. 519, 521-522 (M.D. N .C.); United States v. East 
Texas Motor Freight System, Inc., supra, 10 EPD 1(10,345, 
p. 5416, 10 F E P  Cases 973, appeal pending, No. 75-3332 
(C.A. 5); Johnson v. Ryder Truck Lines, Inc., 10 EPD [̂10,535, 
pp. 6240-6241,12 F E P  Cases 895, 903 (W.D. N .C.); United States 
v. Terminal Transport Go., 11 EPD 1(10,704, pp. 6936-6937 
(N.D. G a.); Cathey v. Johnson Motor Lines, Inc., supra, 398 
F. Supp. at 1116; Freeman v. Motor Convoy, Inc., supra, 409 
F. Supp. at 1108-1112; United States v. Lee Way Motor Freight, 
Inc., 7 EPD 1(9066, pp. 6497-6498, 7 FE P  Cases 710, '747 
(W.D. Okl.). See also United States v. Roadway Express, Inc., 
457 F.2d 854, 857 (C.A. 6).



69

CONCLUSION

For the foregoing reasons the judgment of the 
court of appeals should be affirmed.

Respectfully submitted.
R obert H . B ork ,

Solicitor General.
J. S ta n ley  P o ttin g er , 
Assistant Attorney General. 
L a w ren ce  G . W allace , 

Deputy Solicitor General. 
T h o m a s  S . M a r t in ,

Assistant to the Solicitor General. 
B r ia n  K . L andsberg,
D ayid L . R ose,
W il l ia m  B . F e n t o n ,
J essica  D u n s  ay S ilver ,

Attorneys.
A b n er  W . S ib a l ,

General Counsel,
Equal Employment Opportunity 
Commission.

D ecem b er  1976.

U . S .  G O V E R N M E N T  P R I N T I N G  O F F I C E  : 1 9 7 6  O  -  2 2 5 - 8 2 9