Waters v. Wisconsin Steel Works of International Harvester Company Petition for a Writ of Certiorari

    In the

(Emrrt nf live xlnilru 0tato
O ctober T e r m , 1974

No. 74-

W illiam  A. “W aters and D onald  S am u e ls ,

Petitioners,
v.

W isconsin  S teer  W orks of I n te r n a tio n a l  H arvester C om ­
p a n y  and U n ited  O rder of A m erican  B rick layers  and  
S tone M aso ns , L ocal 21.

PETITION FOK A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Petitioners, William A. Waters and Donald Samuels, 
respectfully pray that a Writ of Certiorari issue to review 
the judgment and opinion of the United States Court of 
Appeals for the. Seventh Circuit entered in this proceeding 
on August 26, 1974.

Opinions Below

The opinion of the Court of Appeals, reported at 502 
IN 2d 1302, is reprinted in the Appendix hereto at pp. la- 
20a. The order oi the Court of Appeals denying peti­
tioners’ Petition for Rehearing is set cut in the Appendix 
at pp. 21a-22a. The Findings of Fact. Conclusions of Law, 
and Order of the District Court, which are not reported, 
arc set out in the Appendix at pp. 23u-2Sa.



Jurisdiction

The judgment of the Court of Appeals was entered on 
August. 20, 1974. Petit}oners" timely Petition for Rehear 
ing was denied on November 2G, 1974. This Court’s juris­
diction is invoked under 28 U.S.O. § 1254(1).

Questions Presented

1. Do the limitations of section 703(h) of Title VII 
of the Civil Rights Act of 1964, apply to or restrict the 
remedies available under 42 IT.S.C. § 1981"

2. Does section 703(h) preclude the district courts in 
Title VII actions from providing a remedy for a seniority 
system which perpetuates the effects of rmst discrimination 
and has a discriminatory impact on black employees and 
job applicants"*

3. is an aggrieved employee’s right to additional back 
pay cut off when lie declines to accept a job offer from the 
defendant employer, where (a) the job offered is less 
desirable than the job to which lie is entitled, (b) the job 
offered is less desirable than the job he then holds, and 
(c) the offer is conditioned on a waiver by the employee 
of some or all of his remedies for past discrimination! .

Statutory Provisions Involved

The pertinent sections of Title VII of the Civil Eights 
Act of 1964, 42 TkS.C. §§ 2000e I t seq., as amended, provide

* See Pranks v. Bowman Transportation Company, No. 74-728.



oo

Section 703(a), 42 U.S.C. $2000c-2(a):
It shall be an unlawful employment practice for an 

employer—

(1) to fail or refuse to hire or to discharge, any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

Section 703(c), 42 U.S.C. $2000e-2(c):
It shall be an unlawful employment practice for a 

labor organization—

(1) to exclude or to expel from its membership, or 
otherwise to discriminate against, any individual be­
cause of his race, color, religion, sex, or national 
origin;

(2) to limit, segregate, or classify its membership or
applicants for membership, cr to classify or fail or 
refuse to refer for employment any individual, in any 
way which would deprive or tend to deprive any in­
dividual of employment opportunities, or would limit 
such employment opportunities or otherwise adversely 
affect his status as an employee or as an applicant for 
employment, because of such individual’s race, color, 
religion, sex, or national origin. , ,-v . ; *



-.j  jk «.-J o * - a  i .

Section 703(h), 42 TT.8.C. § 2000e-2(b):

Xotvithstanding any other provision of this title, it 
shali not he an unlawful employment practice for an 
employer to apply different, standards of compensa­
tion, or different terms, conditions, or privileges of 
employment pursuant to a bona tide seniority or merit 
system, or a system which measures earnings by quan- 

- tity or quality of production or to employees who work 
in different locations, provided that such differences 
arc not the result of an intention to discriminate lie- 
cause of race, color, religion, sex, or national origin.

Section 700(g), 42 U.S.C, § 2000b-5(g):

If the court finds that the respondent has inten­
tionally engaged in or. is inten tionally engaging in-an 
unlawful employment practice charged in the com- 
pmiuf, on; court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
oid.ei such affirmative action as may he appropriate, 
which may include, but is not limited to, reinstatement 
or hiring of employees, with or without back pay (pay­
able by tlie employer, employment agency, or labor or­
ganization, as the case may be, responsible for the 
unlawful employment practice), or any other equitable 
relief as the court deems appropriate. . . .  No order of 
the court shall require the admission or reinstatement 
of an individual as a member of a union, or the hiring, 
reinstatement, or promotion of an individual as an em­
ployee, or the payment to him of any back pay, if such 
indh idual was refused admission, suspended, or ex­
pelled, or was refused employment or advancement or 
was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, 
or national origin or in violation of section 704(a).

r, 4t



The Civil Rights Act of I860, 42 U.S.C. §1981, provides:
All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

5

t a lenient of the Cose

This action was tiled in December, 1963, in the United 
States District. Court for the Northern District of Illinois 
by two black bricklayers alleging discrimination on the- 
basis of race by the "Wisconsin ■ Steel Works of the Inter­
national Harvester Company and Order of
American Bricklayers and Stone Masons, Local 21, in viola­
tion of Title VII of the 1964 Civil Rights Act and of 42 
U.S.C. §1981. Plaintiff Waters alleged that he was initially 
denied employment on the basis of race, and that he was 
subsequently hired for a short period of time but then laid 
off because he had less seniority than whites hired during 
the period when Wisconsin Steel refused to hire blacks. 
Plaintiff Samuels alleged that he had been denied employ­
ment because Wisconsin Steel gave preference to appli­
cants who had previously worked for the company during 
the period when it employed ouh whiles.

The District Court1 * upheld plaintiffs’ factual allegations 
regarding the employment practices of Wisconsin Steel

1 The district court had earlier dismissed tire action on proce­
dural grounds; the decision of the district court was reversed 
and the case remanded. Waters v. Wisconsin Steel Works, 427 
F.2d 4.7G (7th Gir. 1970), cert, denied 400 U.S. 911 (1970).

-e y -  •-*. ~ . —s -*e\ ?y»r- r~% .— >, ▼r«V-T';*CT> -yT*'



and Local 21. It held that prior to April, 196-1,2 Wisconsin 
Steel mamf-iined a policy of racial discrimination in the 
hiring of bricklayers and hired only white applicants.3 
The District Court further found that after 19G4 Wiscon­
sin Steel, in laying off and recalling employees, had given 
preferential treatment to employees hired during the “ white 
only” period, including white employees who had no con­
tractual seniority rights because those rights had been 
waived in return for severance pay. The District Court 
concluded that this preferential treatment had the effect of 
continuing the impact of Wisconsin Steel’s past policy of 
discrimination, and directly injured plaintiffs (24a-27a).

’The record revealed that the seniority system and prefer­
ences guaranteed that any black bricklayer at Wisconsin 
Steel would be the first laid off, and that virtually all 
bricklayers hired would be white. Plaintiffs’ qualifications 
were not disputed; Waters and Samuels had twenty and 
thirteen years of experience, respectively, as bricklayers. 
Among the white bricklayers recalled ahead of Waters on 
grounds of seniority were bricklayers hired after Waters 
had been rejected for employment because of his race.

The District Court licit! that these practices constituted 
a violation of Title VII and of section .1981. It ruled that 
the defendants’ seniority system, as well as the preferen-

2 Petitioner Waters liad first sought employment at Wisconsin 
Steel in the Fali, 1957.

3 Specifically, the district court, found that black bricklayers 
had applied unsuccessfully tor work on several occasions "b e ­
ginning as early as 1949, but that Wisconsin Steel, did not hire 
a black bricklayer until April' 19G4; furthermore black laborers 
in Wisconsin Steel’s unison department had sought transfer to 
Wisconsin Steel’s apprentice program but were denied admis­
sion, supposedly on the basis of their age, even though whites 
were admitted into the program who were the same age as some, 
of the black rejected applicants (2hu-27a).



7

tial treatment for whites whose contractual seniority rights 
had been waived, liad its genesis in a period of racial dis­
crimination and was thus not a ‘‘bona fide” seniority sys­
tem under Title VII. The District Court awarded $5,000 
in back pay to Waters and Samuels, and directed Wiscon­
sin Steel to offer both plaintiffs employment (27a-29a).

On appeal the Seventh Circuit upheld the District Court’s 
findings of fact, but reversed on the ground that the district 
court was powerless to award most of the relief granted. 
The Court of Appeals ruled, as a matter of law, (1) that a 
contractual seniority system as well as an informal prefer­
ence for employees whose seniority rights liad expired, 
even though they perpetuated the effect of past discrimina­
tion. were absolutely protected from judicial, scrutiny under 
Title VII by section 703(h), 42 U.S.C. §2000e-2(h), (2) that;

litatioru ;.c-od by section 703(h) on monies LiiiCiOr
Title V 1.1 also applied 1o 42 "U.S.C. §1981, (3) that the 
company, could, give white employees who had waived their 
seniority rights preference over plaintiff Samuels, although 
to do so over Waters was unlawful, and (4) that plaintiff 
Waters forfeited his right to any further hack pay when, 
while his claim was pending, Wisconsin Steel offered him 
a job if lie would waive his claim for retroactive seniority 
and otherwise prejudice his case, and he refused to take it 
(la-20a).

Reasons for  Granting the Writ

This case arises from a problem of discrimination which 
has long obstructed economic opportunity for blacks—-the 
practice of hiring blacks last when employment is rising 
and firing Hacks first when the. workforce is reduced. The 
fact that minority workers were the most recently hired is 
seized upon by employers and unions as a justification for

: *r*'»v* '.'♦.'•-'rifi ‘ "



8

lavino- off those workers before whites with greater com- 
pany°scnioritv. That in many firms most black employees 
were hired only in the last few years is a result of open 
and avowed discrimination prior to l'JGi, and of the con­
tinuation of that discrimination in more subtle but equally 
S i v e  forms thereafter. This “ last hired, first fired” 
form of discrimination is one of the primary reasons for 
the chronically higher level of unemployment among non­
whites compared to white workers.

Under ordinary economic conditions the workforce at 
anv given plant or office expands and contracts in response 
to'seasonal variation in demand and the success or prob­
lems of the particular firm. The abolition of. “ last hired, 
first fired” discrimination against blacks is thus a matter 
of continuing concern. The problem is of particular 
importance now in a time of serious economic dislocation, 
with millions of workers being fired, laid off or furloughed 
due to falling production. In the last month alone unem­
ployment rose by 930,000, and over tbe last year unemploy­
ment. rose' substantially faster among non-whites than 
among whites.4 When the economy begins to recover from 
its present difficulties and employment begins to rise, the 
“last hired, first fired” principle will prevent black workers 
from participating fully in that new prosperity.

The decision of the Seventh Circuit strips the district 
courts of any power to remedy “ last hired, first fired” 
discrimination. The Court of Appeals held that an em­
ployer in laying off employees could ■ give preferential 
treatment to whites because they worked for the firm 
longer, and could in hiring give preference to whites be­
cause they had worked for the firm before. The Court of

4 See generally: Bureau of Labor Statistics, The Employment 
Situation, January, 1975.



9

-Appeals did not deny that this practice served to per­
petuate the effects of past discrimination, hut held that 
such discrimination enjoyed absolute immunity from legal 
attack because of Section 703(b) of Title V II of the 19G4 
Civil Eights Act.. The decision deprives district courts in 
that circuit of any ability to fashion fair and effective 
relief appropriate to the circumstances of each case for 
such ‘“last hired, first fired” discrimination. The decision 
of the Court of Appeals is squarely in conflict with the 
decisions of this Court and other courts of appeals, and 
with the policies and language of Title VII and 42 U.S.C. 
§ 1981.

1 reviously this Court has resolved questions arising 
under Title VII regarding procedure5 6 7 * * and standards of 
proof.1' The critical issues of employment discrimination 
*aw at present involve remedies.T This case presents 
important questions involving the scope of remedial au­
thority vested in the district courts once discrimination 
ha» boon established.5 The Court of Appeals decision

5 See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 3G 
(1 974); and Love v. Pullman Co., 404 U.S. 522 (3972).

6 See, e.g., McDonnell-Douglas Corp. v. Green, 411 U.S. 792 
(1 9 7 3 ); Phillips v. Martin-Marietta Carp., 400 U.S. 542 (1971)" 
and Griggs v. Duke Power Co., 401 .U.S. 424 (1971).

7 See e.g., Albemarle Paper Co. v. Moody, No. 74-389 cert, 
gtanted Decern br,r 1G, 1974; and Franks v Bowman Transporta­
tion Company, No. 74-728 ccrl. pending.

5 This Court lias spoken generally concerning the broad power 
of the federal courts to eliminate employment discrimination: 

Congress enacted Title A J! . . .t o  assure equality of employ­
ment. opportunities by eliminating those practices' and devices 
that discriminate on the basis of race, color, religion sex 
or national origin.

Alexander v. Gardner-Denver Co., supra at 44 ; see also McDon- 
ncll-Douglas Corp. v. Green, supra at 800; Griggs v. Duke Power 
Co., supra at 429-430.



jO

resolved these questions in a manner which not only 
severely limits the district court’s power hut also would 
restrict the ability of the Department of Justice9 and the 
Equal Employment Opportunity Commission10 to obtain 
effective relief for victims of unlawful employment dis­
crimination.

That the use of seniority as a criterion in layoffs and 
hiring is of unusual importance does not, of course,, mean 
that this Court must adopt a per se rule that the applica­
tion of such a standard is always, or never permissible. 
The use of seniority takes a variety of forms—contractual 
labor-management agreements, written or informal com­
pany policies, and ad hoc rules. Different minority em­
ployees present different problems— some were denied iobs> 
on account of race before Title VII became law in 1965, 
other applicants were rejected for this reason after 1965, 
and still others did not apply to work for an employer 
until after the employer had ended such overt discrimina-

9 In several Title V II cases, the United States Department of 
Justice has secured decrees granting compensatory seniority to 
unlawfully rejected applicants. See, e.g., United States v. Road­
way Express, Inc., C.A. No. C-68-321 (N.D. Ohio) (consent decree 
entered September 1, 1970), partially repeated at 2 EPD h 10,235 
p. 1176 affirmed, 457 F.2d 854 (Gtli Cir. 1972); United States v. 
Navajo Freight Lines, Inc,., C.A. No. 72-116-MNL (C.D. Cal.) 
(supplemental order to consent decree entered January 15, 1973) ; 
United States v. Pilot Freight Carriers, Inc., C.A. No. C-143-1VS- 
71 (M .D.N. Car.) (consent decree entered October 31, 1972); 
United States v. Georgia Power Co., 7 EPD 1J9167 (N.D. Ga. 
1974), issuing decree on remand from 174 F.2d 906 (5th Cir. 
1973) ; Jones v. Lee Way Motor Freight, Inc., 7 EPD ft9066. 
p. 6500 (W .D . Okla. 1973).

10 EE O C ’s authority derives solely from Title V II . Thus, a 
limitation read into Title V II  may hamstring EEO C in all its 
proceedings. The EEOC lias filed 306 pending lawsuits, 174 of 
which seek relief from discrimination in hiring [information sup­
plied by EEOC Litigation Services Branch, December 5, 1974]. 
And EEOC has thousands of pending administrative charges of 
discrimination involving refusals to hire.



31

lion. Tlie instant case involves several different types of 
problems.11 Different situations may require different 
answers, but the decision below would prevent the district 
courts from fashioning remedies appropriate to the par- 
ticulai circumstances of each case. The very complexity 
of the possible legal situations accentuates the need for 
guidance from this Court.

I.

The Decision of the Court of Appeals That Section 
703(h) of Title VII Limits the Remedies Provided bi­
section 1981 Is Inconsistent With the Decision of This 
Court in Alexander v. Gardncr-Denvcr Co.

The allegations of plaintiffs’ complaint, and the facts 
found by the District Court, clearly established a violation 
of 42 U.S.C. §1981 and mandated an award of back pay 
as well as an injunction requiring the company to hire 
both Waters and Samuels with retroactive seniority. 
Section 1983, which forbids racial discrimination in the 
making of contracts, includes within its prohibition anv 
racial discrimination in employment.12 Waters first sought * •

11 Wisconsin Steel had three sets of seniority rules: a written 
agreement with Local 21, an unwritten policy'regarding laid-off 
employees whose recall rights had expired, and a special ad hoc 
rule for ejgut white employees who had waived their recall rights 
m return for severance pay. Plaintiff Waters was rejected^for 
employment by V  ueonsin Steel because of his race in 3957 before 
the adoption of Title V II. Plaintiff Samuels had not applied for 
employment, '" 'i f ' Wisconsin Steel until April, 19Gb when lie ap- 
plied and was rejected because the company gave preference to 
former employees.

• ” T ^ . ava,il?b51.ity 42 U.S.C. Section 1981 as an alternative 
jumcuetiona basis for employment discrimination litigation free 
of the procedures incorporated in Title V II has been unanimously 
recognized by the Circuits, llackcit v. McGuire Brothers lie  
445 F.2d 442 (3rd Cir. 19 7 1 ); Brown v. Gaston 7)yeing£Machine



12

a job at Wisconsin Steel during the fall of 1957. Had lie 
been white he would have been hired at that time, would 
have been laid off only infrequently in the following years, 
and would by now have accumulated IS years of seniority. 
Instead, Waters was not hired until 19G4, actually worked 
at Wisconsin Steel for less than three months; Waters 
was Hum not recalled until March, 1967, when he was once 
again laid off within three months. The Company’s refusal 
to accord Waters the seniority to which he was entitled, 
in conjunction with its seniority system for layoff's and 
recalls, has clearly perpetuated the effects of its past 
discrimination. Similarly, when Samuels applied to Wis­
consin Steel in 1966, he was rejected, not because he had
less skill or less experience,-but because he had not worked 
at Wisconsin Steel before, and the former employees hired 
instead were, because of the company’s previous policy of 
discrimination, all white. As to Samuels as well, the com­
pany’s seniority system served to continue into the future 
the effects of discrimination of years past.

The Court of Appeals did not deny that the facts found 
by the District Court would, prior to 1964, have established 
a violation of § 19S1 and entitled plaintiffs to the relief 
they sought. The Court held, rather, that to the extent that 
section 1981 afforded plaintiffs any remedy, it had been 
repealed by Title VII of. the 1964 Civil Rights Act. The 
Seventh Circuit concluded that the company’s practices 
did not violate title "\ 11 because of a loophole for certain 
seniority provisions contained in section 703(h), and then 
summarily rejected plaintiffs’ section 1981 claim with the

Co., 457 F.2d 1377 (4th Cir. 1972), cert, denied 409 U.S. 9S2 
(1972); Guerra v. Manchester Terminal Co., 498 F.2d 641 (5th 
Cir. 1974); Long v. Ford Motor Company, 496 F.2d 500 (6th 
Cir. 1974) ; Brady v. Bristol-Myers Co., 459 F.2d 621 (8th Cir. 
1972); Mac kirn v. Spcctor Motor Freight Systems, Inc., 478 F  2d 
979 (D.C. 1973).



13

words “having passed scrutiny under the substantive re­
quirements of Title VII, the employment seniority system 
utilized by. Wisconsin Steel is not violative of 42 U.S.C. 
Section 1981.” (Ida n.4). The Seventh Circuit apparently 
concluded that if a disputed employment practice was not 
forbidden under Title VII it was ipso facto legal under all 
other statutes prohibiting discrimination, and that any pre­
existing remedy for such discrimination broader than Title 
VII had been tacitly repealed by the 1964 Civil Eights Act.

This summary rejection of plaintiffs’ section 1981 claim 
is squarely in conflict with this Court’s decision in 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). In 
Alexander this Court rejected the contention that ag­
grieved employees were limited to any single remedial 
provision.

. . . (L)egislativc enactments in this area have long 
evinced a general intent to accord parallel or over­
lapping remedies against discrimination7 . . . (T)lie 
legislative history of Title VII manifests a congres­
sional intent to allow an individual to pursue inde­
pendently Ids rights under both Title VII and other 
applicable state and federal statutes. The clear infer­
ence is that Title V II was designed to supplement, 
rather than supplant, existing laws and institutions 
relating to employment discrimination.

7 c-g- 42 U.S.C. Section 19S1 (Civil Eights Act of 
19(iG) ; 42 U.S.C. Section 1983 (Civil Eights Act of 1871).

id. at 47-49; see also Morton v. Mancari, 417 U.S. 535, 545- 
a49 (1974).13 It is the very essence of “ overlapping 
remedies” that discrimination not covered by one remedy

33 Cf. •Johnson v. Railway Express Agency, 
No. 73-1543.

Inc., O.T. 1974,

l



34

may be forbidden by another. This Court has repeatedly 
rejected the argument that other sections of the Civil 
Rights Act of 3964 or the Civil Rights Act of 3968 limit 
or repeal, substantively or procednrally, the provisions 
of the earlier Civil Rights Acts. Jones v. Moyer, 392 U.S. 
409, 416 n. 20 (1968); Sullivan v. Little Hunting Pari:, Inc., 
396 U.S. 229, 405 (1969); Swann v. Charlolte-Mecldenburg 
Bel. of Education, 402 U.S. 1, 17 (1971).

That section 703(h) could have limited section 1983: is 
inconsistent with the established principle that repeals by 
implication are not favored. Morton v. Mancari, 417 U.S. 
535, 549-550 (3974); United Stales v. Borden Co., 308 U.S. 
188, 39S (1939). In the area of employment discrimination 
the intention of Congress not to repeal or limit pre-existing 
or parallel remedies is ' ‘clear and manifest” .14 In both 
1964 and 1972 Congress expressly rejected proposals to 
make Title V II the exclusive remedy for employment 
discrimination.15

Other circuits have, consistent with Alexander, uniformly 
rejected attempts to impose on other remedies the limita­
tions applicable to Title VII. See e.g., Contractors Associa­
tion of Eastern Pennsylvania v. Secretary of Labor, 442 
F.2d- 159, 172 (3rd Cir. 1973), ccri. denied 404 U.S. 859 
(3973 ) (Section 703(j ) of Title VII could not limit ihc 
remedial scope of Executive Order 11246); Guerra v. Man­
chester Terminal Co., 498 F.2d 641, 653-4 (5th Cir. 1974) 
(Title VIPs failure to prohibit discrimination in favor of 
citizens does not limit the protection afforded aliens by 
section 19S1) ; Watkins v. United Steel Workers of America, 
369 F. Supp. 3223, 1230-31 (E.D. La. 1974).

14 United Packinghouse, de. Union v. N.L.F.B., 416 F.2d 1120, 
1133, n.l 1 (D.C. Cir. 1969), cert, denied 396 U.S. 903 (1969).

15 See 110 Cong. Rec. 13650-13652 (1964) : Alexander v. Gard- 
ncr Denver Co., 435 U.S. 48, n.9.



15

The Seventh Circuit’s decision imposing on section 1981 
the limitations which it believed to exist under Title VII is 
precisely the approach Congress rejected when it refused 
to make Title VII the exclusive remedy for racial dis­
crimination in employment, and warrants summary 
reversal in the light of Alexander v. Gardner-Denver Co.

II.
The Decision of the Court of Appeals That Section 

703(h) Protects Seniority Systems V Inch Perpetuate 
the Effects of Past Discrimination Is In Conflict With 
the Decisions of Other Circuits.

The District Court awarded both plaintiffs injunctive 
and monetary lelief under Title VII because defendants’ 
seniority system had operated to perpetuate the effects of 
past discrimination. The Court of Appeals did not deny 
that the company had discriminated in the past, or that the 
seniority system had the effect of continuing the discrim­
inatory impact of that prior misconduct. The Seventh Cir­
cuit overturned the awarded relief solely on the ground 
that section 703(h) placed this discriminatory impact out­
side the scope of Title VIPs prohibition or remedies.

Section 703(h) provides
II]t shall not be an unlawful employment practice for 
an employer to apply . . . different terms and condi­
tions, or privileges of employment pursuant to a bona 
fide seniority . . . system . . . provided that such differ­
ences are not the result of an intention to discriminate 
because of race.

42 TI.S.C. §2000e-2(h). The Court of Appeals read 703(h) 
as establishing a per sc rule that any contractual seniority



16

system, ami as to mm- applicants any informal or 
seniority rule,16 is o * «  the reads f »
regardless of whether it lias a discriminators impact.

Tim decision of Hie Seventh Circuit is the. latest develop­
ment in a controversy noiv dividing, and confounding, th 
lover courts as to ml.ether section 703(h) protects a senior­
ity system oven if the system perpetuates the effee s 
past discrimination and, solely because of then- race gim- 
preferential treatment to whites in layoffs and recalls, hat 
e n -ersv appears in the guise of one of three quest.on 
1 ( 1 )  Can such a seniority system be used to do cnn.no the 
order of layoffs and recalls? (2) Can minority ''o .kers 
rvho wore or would have been denied employment m 11 
past be given “ retroactive”  seniority to overcome the dis­
criminatory impact of such a system ? (3) Is a sys cm t i 
such ar. impact lone /Me? In most cases these questions 
as a practical matter yield identical answers as to -u 
impact of section 703(h); it is a measure of the confusion 
wrought by this problem that the answers to these * e - 
questions ‘within a single circuit have not always been
consistent.17

. .  m  addition to the rout.actual seniority a s r ^ *

w W ^ h S d S l j S  » "  former employeeilke 
^ c fl 'V h is  ai lice rule

« * * »  V H . The logic of this
distinction is not irresistible.

n Thus the position advocated by petitioners might be stated to
. n\  that the seniority system was covered by section 703(h) 
liv.. (1) t. cvs  ̂ xi.p wstem when it litis such <m
hut coverage docs not pi .  bar giving minority employees

which question is asked.



17

In the instant case the Seventh Circuit cast the issue in 
the form of the first question and concluded that section 
703(h) protects the use of seniority in hiring and layoffs 
regardless of its discriminatory impact. The same posi­
tion lias been tab on by the Third Circuit in Jersey Central
Poire,■ cO Light Co. v. Electrical Workers. Local 327,------
F. 2 d ____, 9 FEP cases 117 (3d Cir. 1975). The Third
Circuit, ruled that a labor agreement which provided for 
the use of company seniority to determine layoits and , e- 
calls would have to be adhered to even though it might 
continue the effects of past race and sex discrimination 
and even though it might negate the affirmative steps “which, 
had been taken to eradicate the effects of discrimination 
pursuant to an agreement that had been entered into by 
the company, union, and the EEOC. Id. at 130-32.

The contrary position was taken by the Sixth. Circuit in 
Meadows v. Ford Motor Company, —  F .2d ------ , 9 EPD

0907, pp. 0771 -72 (Gth Cir. 1975). In that case the de­
fendant company had refused to hire women because of 
their sex. The Sixth Circuit held that, in order to afford 
relief to the victims of discrimination,'the plant seniority 
system governing layoffs and recalls would have to be 
changed since that system violated Title VI1 by7 continuing 
the effects of past discrimination.1* Similarly, in Watkins 
v. United Steel Workers, 3G.9 F.Supp. 1221 (E.l). La. 1974) 
the court prohibited the use ox seniority7 in determining 
which employees would be laid off and recalled. The dis­
trict court held that it was a clear violation, of litte V II 
to make employment decisions on the length of service, 18

18 The Sixth Circuit in Meadows remanded the case back to the 
district court for a consideration of balancing the equitable factors 
concerning the victims of the hiring discrimination with the in­
terests of the incumbents. The Sixth Circuit stated that recon­
ciliation of these competing interests would be difficult, but not 
impossible. This is the traditional function of a district court in 
equity; howevei, it is exactly what the broad prohibition of Waters 
would prohibit.



18

Avhore blacks had been, by virtue of prior discrimination, 
prevented from accumulating seniority. 3G9 F.Supp. at 
1226-27.

Although unions may technically be “ employers” under 
Title VII, and thus hiring hall preferences for union mem­
bers of long standing are seniority systems, the Eighth 
Circuit has forbidden the use o1 such seniority in giving 
preferences in hiring hall referrals. United States Sheet 
Metal Workers, Local 36, 416 F.2d 123, 131, 133-34 n.20 
(Stli Cir. 1969), rev’ing 2S0 F.Supp. 719, 728-730 (E.D. Mo. 
1969).19 Similarly, Fourth, Fifth and Sixth Circuits have 
forbidden the use- of seniority as a factor in promotions 
iii cases where the employer had in the past discriminated 
in hiring on account of race/0

TPr. disunite regarding the use of retroactive seniority to 
overcome the discriminatory' effect of seniority systems has 
also divided the circuits. In Franks v. Bowman Transpor­
tation Co., 495 F.2d 398, 414 (5th Cir. 1974), cert, denied,
A O trOLW  3330 (1974)' 3 the Fifth Circuit held such relief was
precluded hy section 703 (h) :

19 8ec also Dobbins v. Electrical Workers Local 212, 292 F.Supp. 
413 (S.D. Ohio 1963), afi’d as later modified, 472 F.2d 634 (6th 
Cir 1973) ; EEOC v. Plumbers, Loral Union No. 189, 311 F.Supp. 
468. 474-476 (S.D. Ohio 1970), vae’d on other grounds 433 F.2d  
408 (Ctli Cir. 3971, cert.-denied, 40-1 U.S. 832 (3971 ).

20 Tiou'c v. General Motors Corp., 457 F.2d 34S, 358 (5th Oh.
3 9 7 2 ) ; Alien v. City of Mobile, 331 F.Supp. 3331, 1142-1143 (S.D. 
Ala. 3971), off’el per curiam 466 F.2d 122 (5th Cir. 1972 ;, cat. 
denied 432 U S  909 (3 9 7 3 ); Afro-Arncrican Patrolmen’s League 
v Duck, 366 F.Supp. 3095, 3102 (N.D. Ohio 1973), aff’d in perti­
nent part 503 F.2d 294 (6th Cir. 3 9 7 4 ); Harper v. Mayor end 
City Council of Baltimore, 359 F.Supp. 1187, 1203-1204 (D. Md.
3973) , affd sub nom Harper v. Kloster, 486 F.2d 1134 (4th Cir.
3 9 7 3 ) ; Lay v. City of Cleveland, 8 F E P  Cases 614 (N .D. Ohio
3974) ' see also Bridgeport Guardians, Inc. v. Members of Civil 
Service Corn’ll, 497 F.2d 1313, 1115 (2nd Cir. 1974).

21 A  second petition for certiorari which presents the question 
of whether district courts have the authority to award retroactive 
seniority as a remedy for hiring discrimination is pending. Franks 
v. Bowman Transportation Company, No. 74-728.



If)

. . . We do not believe that Title V II permits the exten­
sion of constructive seniority to them [the black vic­
tims of discrimination] as a remedy, section 703(h).

. . The discrimination which has taken place in a 
refusal to hire does not affect the bona tides of the 
seniority system.

In Juriuhn v. Edwin L. Wiegand Co., 477 F.2d 1038, vacated 
and remanded on other grounds, 414 U.S. 070, reinstated 
497 F.2u 403 (3rd Cir. 1974), the Third Circuit reached the 
opposite conclusion:

We can perceive no basis for the tiial court to have 
refused to award back seniority or tor its conclusion 
that “ the plaintiffs are to be offered employment in 
production with the company, of course, as new em­
ployees” . Seniority is, of course, of great importance 
to production workers for it determines both oppor­
tunities for job advancement and the order of layoff 
in the case of a reduction in a company’s operating 
forces. It is our view that the plaintiffs are entitled 
to seniority and hack pay dating from the time of the 
discriminatory employment practice up to the time 
they are actually reinstated. Only in this way will the 
present effects of the past discrimination be eliminated.

477 F.2d at 1046. The Sixth and Eighth Circuits have also 
sanctioned the award of retroactive seniority. Meadows \.
Ford Motor Company,------F.2d --------, 9 EPD 1(9907 (6th
Cir. 1975). United Slates v. Sheet Metal Workers. Local 36, 
416 F.2d 123, 131, 133-34, n.20 (8th Cir. 1969).22

22 Several district courts , have also specifically held that Title 
V II permits the district courts to provide retroactive seniority 
or some olher relief for discrimination which results from a last 
hired, first fired seniority system. Watkins v. United Steelworkers 
of America, Local 2369,'Mb F.Supp. 1221 (D .C. La. 1974); Delay



20

Similar conflict exists as to whether a seniority system 
with a discriminatory impact is “ bona fide”  within the 
moaning of section 703(h). Jersey Central Cower d; Light 
Co. v. Electrical Workers, Local 327 concluded that such 
a system could qualify as bona fide and thus falls under the 
protection of §703(h).

“We thus conclude in light of the legislative history 
that on balance a facially neutral company-wide se­
niority system, without more, is a bona fide seniority 
system and will he sustained even though it may oper­
ate to the disadvantage of females and minority groups 
as a result of past employment practices” .

9 FEP Cases at 131. In Quarles v. Phillip Morris, Inc.. 
279 F.Supp. 505 (E.D. Va. 1969), however, the court 
reached the opposite conclusion:

Obviously one characteristic of a bona fide seniority 
system must he lack of discrimination. Nothing in 
$703(k), or in its legislative history, suggests that a 
racially discriminatory system established before the 
Act is a bona fide seniority system under the Act.

279 F.Supp. at 517.23 See also Local 189, United Paper- 
makers and Paperworkers v. United States, 416 F.2d 980,

v. Curling Brewing Company, 9 EPD '[9877 (N .D. Ga. 3 9 7 4 ); see 
Chance v. Board of Examiners, No. 70 Civ. 4141 (S.D .N .Y. Feb. 
7, 1975). See eases cited in Fn.9, supra, and Cooper and Sobol. 
Seniority and Testing Under Pair Employment Laws: A General 
Approach to Objective• Criteria of Hiring and Promotion, 82 Harv. 
L.liev. 1589, 2029 (1909) (hereinafter cited as Cooper and Sobol).

53 In these cases the courts have required the substitution of 
date-of-hire (“ Company” or “ plant” ) seniority for unit seniority 
to allow black employees equal access to jobs in formerly all-white 
unhs. These decisions adopt employment date as a noudiscrimina-



925-97 (5th Cir. 3969) cert, denied 397 U.S. 919 
(1970)2*

21

tory seniority standard not because it is per se valid but because 
accomplishes the remedial purpose of Title 'VIT. The instant 

case requires a different remedy under the same principles be­
cause of a crucial factual difference— the existence of an all-white 
v °m " .-2 * : •,*?'* -?Is0’ Uvitcd Siaic* v- Bethlehem Steel Corp., 446
7 cndM4dr  i “ 1Kl f-iYi 19 /1 ) : ]io'!nn™" v. Lorillnrd Corp., 444 F.2d 
/J M 4 th  (nr. 19(1), cert, dismissed 404 U.S. 1006 (3 971) • Uvitcd 
Suites v. Chesapeake d Ohio 10,., 471 F.2d 582 (4th Cir 1 9 7 9 3  
cert, denied 4131 IbS1. 939 (1973); United Stoics v. Jacksonville

,F ‘2d^ Jbi (0th Cir- 1!i71)> C(r[- denied 406 U.S. 
V.- ‘ ,A-iTva<L v- ltmkcn Holler Hearing Co., 486 F.2d 870

354 (8th ^  479 ™

, “  T!,c dcPcis!°.n °| the Court of Appeals conflicts with labor law 
decisions of this Court which establish appropriate relief under
ficr1?1* 1 l c 1 ° L V.ie tvatl01ial Labor Relations Act. 29 U.S.O.

Cciii i) oecuusti sectionslou (e). Tiie conflict is psrticr.larfy si'-nif]
' v n "  n ° ^ el  *o';' Section 700(g ), the remedial pro-

hir o o f  V■ Gcor(-na Power Co., 474 F.2d
4 o i V o V o i f  o -o  ‘ ? S P^ y  v' A ," cricaK Cast Iron 2 % e  Co., 494 F.2d 211, 2o2 (5th Cir. 3 974).

In NJ.KA cases this Court has consistently held that a victim 
.o. a,l l a w f u l  employment practice must be placed in the posi- 
V 7 ' . W» l1?. haI e oeeiipied but for the discriminatory practice 
iN 7,Ab a . L inter-Lex Mfg. Co., 396 U.S. 25S, 268 (1969) \ rom.
ody tnat leaves him “worse off” is inadequate, id; Golden State
lCCtt(W  CC- V‘ a8 L Ev 2d 383 <1&73)> 267 F.2d 164,
•° i V- Si1'- Accordingly, reinstatement to full status
including alt seniority benefits, is necessary relief for an employee 
subjected to an unfair labor practice, including unlawfully rejected 
job appbeants.^ Victims of unlawful hiring discrimination should 

^  T estified  7 1 Lie same basis as those unlawfully dis­
charged. ) mips Podge Corp. v. A LRB, 313 U.S. 177 188 ( m m .  
Southport Co. v.NLllB, 315 U.S. 100, 196 n.4 (1942) • NLPB v 
Hockmj Radio & leUgraph Co., 304 U.S. 333, 341. 348 (1938)' 
2.- ° Atlantic Maintenance Co. v. NLRB, 305 F  2d 604 (3rd
f y  962! , l 3t N, ^ B > * *  o * D , n l r b v . i w c 2 r
d g -F :' d A f  »  w , Mh, c,r- n r ,  n s  nlrb  m 3
/ - i ■’ J ' '  Lf'ue Brothers Contracting Co., 317 F  2d 3 7 
(oth Cir. 1963). ’

t



Wisconsin Sit'd rejected Samuels’ application sold} 
because it decided to rehire former white employees wlio 
bad no contractual rights to recall and who had been hired 
during a period when the Company only hired white biicL- 
layers. The Seventh Circuit rejected Samuels’ claim that 
tliis preference for former employees was unlawful with 
the following blanket statement:

We do not doubt that a policy favoring recall of a 
former employee with experience even though white 
before considering a new black applicant without ex­
perience comports with the requirements of Title V II 
and Section 1981.

(3 6a) The Ninth Circuit took a contrary position in 
Gales v. Georgia Pacific C o r p 492 l'-2d 292 (1974). In 

oaSp the defendant, in hiring for an accountant’s job, 
gave a prefc.ence to present company employees. Since 
the firm had few, if any, eligible black employees, the pref­
erence had the effect of discriminating on the basis of race. 
The Ninth Circuit enjoined the use of such a preference 
reasoning that the policy “ as applied”  in the context of a 
past practice of excluding blacks was in violation of Title 
YJT 27 id. at 290. When an employer with a history of 
racially discriminatory hiring practices gives preference 
to its former employees, it does more than create a built-

fj A t tie  time Samuels applied for work at Wisconsin Steel in 
April, 1966, he was an experienced bricklayer.

:r'The Seventh Circuit, while not expressly so stating consid­
ered in all likelihood, the informal or ad hoc recall of former 
white employees who had no contractual rights, as no^a violation 
of Title Y l l  because of its interpretation ot Section <od(h;.

n The Ninth Circuit, unlike the Seventh Circuit, properly 
mal v / . d  the business reasons tor the promotion-from-within policy 
in light of the "business necessity” test. Gates v. Georgia 1 acxjic 
Corp., supra at ‘296.



in headwind” to the equal employment opportunities of 
black applicants, see Griggs v. Duke- Power Co., supra al; 
4112; it erects an insurmountable barrier to employment 
to those previously excluded on the basis of raced8

Ike limitation that the Seventh Circuit imposed on 
Title VII is inconsistent with the breadth of remedy con­
templated by other provisions of that statute. Section 
/03(a)(2) delines as an unlawful employment practice any 
practice which would merely “ tend to” deprive individuals 
of equal employment opportunities or adversely affect them 
because of race. 42 U.S.C. $2000e-2(a). This Court, noting 
the broad sweep of this section, explained in Griggs v. 
Dvhe Power Co., 401 U.S. 424, 430 (1970):

Under the Act, practices, procedures or tests neutral
on their face, and even neutral in terms of intent, 
cannot he maintained if they operate to “freeze” the
status quo of prior 
tices.

disi einployment prae-

Similarly, Section 706(g) grants broad powers to the fed­
eral courts to remedy any discrimination they find. 42 
U.S.C. §2000e-5(g). In 1972, the Conference Committee 
Report explained that Section 706(g)

‘ 1 he legislative history of Title V II supports the position of 
the Isinth Circuit. The passage of the Clark-Case Memorandum 
dealing with recall preferences stales:

. . . .  AV here waiting lists for employment or training are, 
prior to the effective date of the Title, maintained on a dis­
criminatory basis, the use of such lists after the Title takes 
effect may be held an. unlawful subterfuge to accomplish 
discrimination.

? 0"? -  ? ec- 6992 (April 8. 1964); see United States v. Sheet 
Metal Workers, supra at 133-34, n.20. The recall on the basis of 
length of service of former employees who have no contractual 
rights to recall is just such a “waiting list(s) for employment.”



requires that persons aggrieved by the consequences 
and effects of the unlawful employment practices be, 
so far as possible, restored to a position where they 
would have been were it not for the unlawful discrim­
ination.

US Cong. Rec. 3462 (daily ed., March 6, 1972).23 * * * * * 29 30 * The con­
struction of Section 103(h) suggested by Gales, Meadows, 
Sheet Metal Workers, and Jurlnko limiting that provision 
to seniority systems which do not have a discriminatory 
effect is more consistent with the broadly remedial pur­
pose of Title VII and avoids any conflict between that 
provision and Sections.703(a)(2) and 706(g).

The Seventh Circuit’s reading of the legislative history 
of Title V II is clearly erroneous. The Seventh Circuit did 
not deny that, but for section 703(h), Wisconsin Steel’ s

J U lO iU ' > hu-CUu \v i j u i l l  V lO ia U J U i lie VII. When Title
VII was reported out by the House Judiciary Committee 
on November 20, 1963, it contained no such provision 
regarding seniority. Conservatives on (lie Committee criti­
cized the bill on the ground that it would require a revision 
oi seniority practices by employers who had discriminated 
on the basis of race.50 The same objection to Title VII

23 Sec also United States v. Louisiana, 380 U.S. 145. 154 (1065) ;
Griggs \. Duke Dower Co., supra at 429-430 (1 9 7 1 ); Vo pier v.
McCarty, Inc., 451 F.2d 1236. 123S (5th Cir. 1 9 7 1 ); Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211, 243 (5th Cir. 1974) ;
Rock x. Norfolk & V/cstcrn Runj. Co., 473 F.2d 1344 ( 4th Cir.
1973), cert, denied 412 U.S. 933 (1973). Cf. Corning Glass Works
x. Brennan, 41 L.Ed.2d 1 (1974).

30 “ If the proposed legislation is enacted, the President of the 
United States and his appointees— particularly the Attorney Gen­
eral—would.be granted the power to seriously impair . . . the 
seniority rights of employees in corporate and other employment 
(and] the seniority rights of labor union members within their 
locals and in their apprenticeship program. . . .

‘G he provisions of this act grant the poiver to destroy union 
seniority . . . .  with the full statutory powrers granted by this



::o

was voiced on the floor of the House,31 and proponents of 
the bill did not deny this would be its effect. Congress­
man Dowdy proposed an amendment to exempt completely 
from coverage by Title VII any employment decision based 
on a seniority system;3' the House rejected the amend­
ment.33 The House on February 4, 1904 adopted Title VII 
without any special language regarding seniority.34

The original Senate bill, reported out of the Commerce 
Committee on February 10, 1964, was similar to the House 
bill, and contained no provision similar to section 703(h). 
The initial Senate bill was also criticized on the ground 
that it would affect seniority rights. In response to this 
criticism Senator Clark, on a single occasion on April 8, 
3908, before a nearly empty chamber, placed into ilie record 
the documents relied on by the Seventh Circuit suggesting 
th'd Title VII' would have no effect whatever on seniority 
rights.35 By the Seventh Circuit’s own reasoning the Clark 
materials were erroneous, for, on April 8, the proposed civil 
rights bill did not contain section 703(h) or any comparable 
provision. On May 26, 1964, the Senate leadership offered 
a new civil rights bill of their own, containing §703(h). The 
language of this new provision, which bore no resemblance

bill, the extent of actions which would he taken to destroy the 
seniority system is unknown and unknowable” . II. Rep. No. 914, 
8Sth Cong., 1st Sess. G4-66, 71 72.

31 110 Cong. lice. 2726 (1964) (Remarks of Rep. Dowdy).

33 Tbe proposed amendment provided “ ftlbe provisions of this 
title shall not be applicable to any employer whose hiring and 
employment practices are pursuant to (1) a seniority system 
. . . 110 Cong. Roc. 2727 (1964).

32110 Cong. Ilee, 2728 (1964).

34110 Cong. Roc. 2S04 (1964).

36 See 110 Cong. Ree. 7207 cl scq. (1964).  The Clark construc­
tion also appears mistaken in the light of the bill’s history in the 
House.



?6

to the rejected Dowdy amendment, was explained by Sen­
ator Humphrey, one of the sponsors of the leadership bill :3C

[Tjliis provision makes clear that it is only discrim­
ination on account of race, color, religion, sex or na­
tional origin that is forbidden by the title. The change 
does not narrow application of the Title, but merely 
clarities its present intent and effect.

Neither Senator Clark, Senator Case, nor the Department 
of Justice ever offered any construction of or comment on 
section 703(h), which was adopted along with the rest 
of the leadership bill on June 19, 186-1.87 Congressman 
Cellar, in explaining to the House the changes contained 
in the Senate bill, noted the provisions in section 703(h) 
regarding job-related testing but, apparently agreeing with 
Senator Humphrey’s construction, did not mention the se­
niority language.36 37 38 Under these circumstances the deci­
sion of the Seventh Circuit, construing section 703(h) on 
the basis of comments made by Senator Clark weeks be­
fore that section was ever written or proposed, was clearly 
mistaken.

36110 Cong. Rec. 12,723 (1964).

37110 Cong. Rec. 14,o i l  (1964).

38 110 Cong. Rec. 15896 (1964). Celler did mention such in­
significant changes as those regarding corporations owned by 
Indian tribes and discrimination against atheists.



iSLOn ° f t ie C° ' ,ri of Appeals Limiting 
?VRiers' Rl=hf to Back Pay Is In Conflict With DedU 
810,18 of t5‘e Third and Fourth Circuits

The Seventh Circuit upheld the decision of the Bis 
inch Court that Wisconsin Steel discriminated against 
plamam ’Waters when on January 17, 1967 it gave recall 
preference to a former white employee who had waived 
...is recaJI rights in return for back pay. Waters main- 
.aincd that ne continued to suffer monetary loss from that 
o.ate until the present time and neither court below found 
otienvise. The Court of Appeals,, however, ruled that as 
a matter of law Waters was only entitled to back pay 
tor thê  period prior to September 5, 1967, when Waters 
declined an otter of employment at Wisconsin. Steel.

-three critical facts, set out in the record, bear on the 
legal significance of this offer. First, the Company in­
sisted that as a condition of returning to work Waters 
execute a waiver abandoning his then pending claim to 
be restored to the seniority he would have had but for 
(he Company’s initial refusal to hire him because of his 
race. Second,. Waters was concerned that it. would be 
argued that he had waived some or all of his rights merely 
by accepting the Company’s offer and lie so advised the 
Company in writing. The Company responded, not bv as­
suring him it would not so argue, but by insisting he 
was entitled to neither back pay nor seniority.39 Third, * *

33 Waters wrote:

* ,l}ial International Harvester Company, Wisconsin
o.ee, Division lias discriminated against me because of ray 
race and I believe that I would lose some of my rights 
privileges or immunities secured anil protected bv the Con­
stitution and laws of the United States if I came back to



sinee Wisconsin Steel '.could accord him no seniority, 
Waters had every reason to believe he would promptly 
be laid off soon after starring work as he had been twice 
before, do take such a position and give up a more 
secure job he had with another firm would have been 
inconsistent with bolh common sense and Waters’ obliga­
tion to mitigate his damages. The district court found 
that Waters had declined the September, 1967 offer of 
employment because it might prejudice his pending Title 
VII claim.

The Court of Appeals held that: despite these conditions 
Waters had an absolute legal obligation to accept the job 
offered by Y\ iseonsin Steel and forfeited any right to fur­
ther back pay when he declined to do so. The Seventh 
Circuit’s decision is in direct conflict with the decision of 
the Third Circuit m J-uruiko v. Edwin L. TViegand Com­
pany, -.177 F .2d 1038 (3rd Cir. 1973) and the en banc deci­
sion of the Fourth Circuit in Williams v. Albemarle City
Hoard of Educaiiov, ------ F.2d ——, S EP.D ft 9820 (4th
Cir. 1974). In Jvrinko, the employer had refused in 1966
to 3lire the plaintiffs because of their sex, but in February, 
1969 offered them jobs with neither back pay nor the se­
niority to which they were entitled. The district court held 
their refusal to accept the jobs ended plaintiffs’ right to 
further back pay. The Third Circuit reversed, reasoning:

work before the Equal Employment Opportunity Commission 
render their decision in this case.
1 would like 1o know if Wisconsin 'Steel "Works is prepared 
to pay me my lost time and place me on the seniority list 
in the position I should be in ?

The Company responded:
W e find that no monies are due you.
We reject your request that you be placed on the seniority 
list when, in fact,, you have no accrued seniority, on the 
ground that such action would be in direct violation of our 
labor agreement.



Tin* terms of the 1969 job offers were, ayithin Wiegand’s 
control, and it did not offer plaintiffs seniority or back 
pay. The offer that was made did not rectify the effect 
of its past discrimination, and the plaintiffs wore under 
no duty to accept sncli an offer.

477 E.2d at 1098. In Williams, the plaintiff Lad been re­
moved from his job as a school principal because of Ins 
race, but the defendants contended he had no right to back 
pay because he had rejected its offer of employment as a. 
teacher. The h'ouvth Circuit rejected that contention, and 
held the principal had no obligation to accept p. position 
less titan that to which lie ay as entitled. 8 EPI) at p. 0439.40

The decision of the Seventh Circuit on the facts of this
U w u tjcl a ic \ v j S>-

consin Steel io sabotage Waters' pending claim by forcing 
him to choose between waiving his claim for seniority and 
back pay (if lie accepted the job) and waiving any future 
back pay (if he did not). Such a legal maneuver is not 
consistent with the requirement that all waivers must he 
voluntary, Johnson v. Zerbst, 304 U.S. 458 (1938), or with 
the public policy against any waivers of rights involving 
the public interest. Brooklyn Savings Bank v. O’Neil, 324 
U.S. 697 (1945). I f such job offers can have the effect 
claimed by the Court of Appeals, they will afford recal­
citrant employers a ready means to prevent the enforce­
ment of Title VII.

40 “ [T]here can be little question that the alternative employ­
ment was of a kind inferior to 1 hat- previously .followed by the 
appellee . . . .  More importantly, the acceptance of the alterna­
tive employment in this case cotlld well have been regarded as 
an acquiescence by tpe appellee in his racially discriminatory de­
m otion" Id.



30

CONCLUSION
For these reasons, a 'Writ of Certiorari should issue to 

review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

Prt !lu< B. K n.L-A:%'j»

JUDPON H. MiXER 
Charles Barxhilt,, Jr.

Davis, Miner & Barnhill 
Id West Erie Siv'et 
Chicago, Illinois fiOGlO

Jack Greenberg 
JAMES M. NaVKTT III 
Baerv Jj. Goi.rsxeik 
Morris J. Baller 
Fare Sci::::.rr

10 Culuinotio Circle 
Suite 2030
New York, New York 10019 

Course! for Petitioners

Rothschild, Barry & Myers 
Two First National Plasa 
Chicago, Illinois <10670

Of Counsel

A