American Tobacco Company v. Patterson and American Brands, Inc. v. Equal Employment Opportunity Commission Brief for Respondents John Patterson

    1

No. 80-1199 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

THE AMERICAN TOBACCO COMPANY,
etr"aX77

Petitioners,
v.

JOHN PATTERSON, et al.

AMERICAN BRANDS, INC.,
Petitioner,

v. •
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

On Writ Of Certiorari To The United States Court of Appeals 
For The Fourth Circuit

BRIEF FOR RESPONDENTS JOHN PATTERSON, ET AL.

JACK GREENBERG JAMES M. NABRIT, III* 
PATRICK 0. PATTERSON 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

*Counsel of Record

BARRY L. GOLDSTEIN 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005
HENRY L. MARSH, III JOHN W. SCOTT, JR. 
RANDALL G. JOHNSON 
Hill, Tucker & Marsh 
P.O. Box 27363 
Richmond, Virginia 23261



QUESTIONS PRESENTED

1. Whether a seniority system insti­
tuted by an employer and union after the 
effective date of Title VII is protected by 
§ 703(h) where the system perpetuates the 
employer's and the union's own prior 
intentional discrimination.

2. Whether a requirement of prior 
service in a line of progression, imposed 
as a prerequisite for eligibility to bid on 
higher-rated jobs in the line, is part of a 
"seniority system" within the meaning of 
§ 703(h) where satisfaction of the require­
ment is not determined by any measure of 
time served in employment.



TABLE OF CONTENTS

Page
Questions Presented ................. i
Table of Authorities ................ v
Statement of the Case ............... 1
A. Proceedings Below ............  2
B. Discriminatory Practices .....  8

Summary of the Argument ............  28
Argument ............................  31

I. Section 703(h) of Title VII 
Does Not Authorize the Post- 
Act Adoption of Seniority 
Systems Which Perpetuate In­
tentional Discrimination and 
Segregation ................... 31
A. Section 703(h) Should be 

Read in the Context of 
the Relevant Legislative 
Materials, the Prior De­
cisions of this Court, 
and the History and 
Purpose of Title VII 31



Page

B. The Legislative History
of § 703(h), Analyzed 
in Prior Decisions of 
this Court, Establishes 
that the Statute Does 
Not Exempt Post-Act 
Seniority Systems Which 
Perpetuate Intentional 
Discrimination and 
Segregation .................. 35

C. The Historical Context 
and the Purpose of 
Title VII Confirm this 
Court's Prior Analysis 
of the Language and 
Legislative History of
§ 703 (h) ..................... 59
1. The Historical Context:

The Lines of Progres­
sion Instituted in 1968 
Were Superimposed on a 
Pre-Existing Structure 
of Intentional Discrim­
ination and Segregation .. 59

2. The Purpose of Title
VII: Section 703(h)
Provides a Narrow Ex­
emption from Title VII's 
Broad Prohibition of 
Discriminatory Employment 
Practices ................ 73

iii-



Page

D. The Policies Underlying 
Title VII Support the 
Conclusion that § 703(h) 
Does Not Immunize Post- 
Act Seniority Systems 
which Perpetuate Inten­
tional Discrimination and
Segregation ............... 84

II. The Lines of Progression Are 
Not Part of a "Seniority 
System" Within the Meaning of 
§ 703(h) ......................  97

Conclusion ..........................  109

—-i v—



TABLE OF AUTHORITIES
Cases; Page
Abbott Laboratories v.

Portland Retail Druggists 
Association, 425 U.S.
1 (1976) ....................  80

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)   83

Alexander v. Aero Lodge 735,
565 F.2d 1364 (6th Cir.
1977), cert, denied,
436 U.S. 946 (1978) ..........  35

Alexander v. Gardner-Denver
Co. , 415 U.S. 36 (1974) .....  *85

California Brewers Association 
v. Bryant, 444 U.S. 598
(1980) .......................  Passim

County of Washington v. Gunther,
49 U.S.L.W. 4623 (1981) .....  78, 79, 81

Emporium Capwell Co. v. Western 
Addition Community Organiza­
tion, 420 U.S. 50 (1975) ....  84, 85

Franks v. Bowman Transportation
Co., 424 U.S. 727 (1976)   Passim

Griggs v. Duke Power Co., 401
U.S. 424 (1971) ......... 52, 97, 106 - 107

Group Life and Health Insurance 
Co. v. Royal Drug Co.,
440 U.S. 205 (1979)   80

-v-



Page
Guiseppi v. Walling, 144 

F. 2d 608 (2d Cir. 1944) , 
aff'd sub. nom. Gemsco 
Inc. v. Walling, 324
U.S. 244 (1945) .............  33

Hazelwood School District
v. United States, 433 U.S.
299 (1977) ................... 5

Hameed v. Iron Workers
Local 396, 637 F.2d 506
(8th Cir. 1980)     36

International Brotherhood of 
Teamsters v. United States,
•431 U.S. 324 (1977)   Passim

Myers v. Gilman Paper Co., 25 
FEP Cases 468 (S.D. Ga.
1981) ........................  100

Payton v. Rowe, 391 U.S.
54 (1968)   80

Piedmont & Northern Railroad 
Co. v. ICC, 286 U.S.
299 (1932) ................... 80

Phelps Dodge Corp. v. NLRB,
313 U.S. 177 (1941)   34

Quarles v. Philip Morris, Inc.,
279 F. Supp. 505 (E.D. Va.
1968) ........................  69, 70, 72

-vi-



Page
Steele v. Louisville &

Nashville Railroad Co.,
323 U.S. 192 (1944) ........  93

Train v. Colorado Public 
Interest Research Group,
Inc., 426 U.S. 1 (1976) ....  33

Trans World Airlines, Inc. 
v. Hardison, 432 U.S.
63 (1977) ................... 57 - 58, 85

United Air Lines, Inc. v.
Evans, 431 U.S. 553 (1977) .. 5, 55-56

United States v. Public 
Utilities Commission,
345 U.S. 295 (1953) ........  81

United Steelworkers of 
America v. Weber,
443 U.S. 193 (1979) ........  Passim

Statutes:
42 U.S.C. § 1981, the

Civil Rights Act of 1866
42 U.S.C. § 2000e et seq., 

Title VII of the 
Civil Rights Act of 1964

3

Passim

~vii



Page
Legislative History:

H.R. 7152, 88th Cong.,
1st Sess. (1963) ...........  39, 41, 50

H.R. Rep. No. 914, 88th Cong.,
1st Sess. (1963), reprinted 
in [1964] U.S. Code Cong.
& Ad. News 2391 ............. 39, 75

110 Cong. Rec. 486-88 (1964) ... 42
110 Cong. Rec. 2557 (1964) .... 40
110 Cong. Rec. 2560 (1964) .... > 40
110 Cong. Rec. 2725-28 (1964) .. 40 - 41
110 Cong. Rec. 2804-05 (1964) .. 41
110 Cong. Rec. 5094 (1964) .... 42
110 Cong. Rec. 5423 (1964) .... 36
110 Cong. Rec. 6528 (1964) .... 43
110 Cong. Rec..7091 (1964) .... 43
110 Cong. Rec. 7206-07 (1964) .. 36, 45- 47
110 Cong. Rec. 7212-15 (1964) .. 46 - 48
110 Cong. Rec. 7215-17 (1964) .. 47 - 49
110 Cong. Rec. 11926 (1964) ___ 50

viii-



Page

110 Cong. Rec. 11930- 37 (1964) . 50
110 Cong. Rec. 12706- 07 (1964) . 50
110 Cong. Rec. 12723 (1964) ___ 51
110 Cong. Rec. 12813 (1964) ___ 50
110 Cong. Rec. 12818- 19 (1964) . 51
110 Cong. Rec. 14511 (1964) ___ 51
110 Cong. Rec. 15896 (1964) ___ 53
110 Cong. Rec. 15897 (1964) ___ 52
110 Cong. Rec. 16002 (1964) ___ 53
110 Cong. Rec. 17783 (1964) ___ 52
Hearings on Civil Rights 

Before Subcomm. No. 5 
of the House Comm, on 
the Judiciary, 83th
Cong., 1st Sess. (1963) ....  74

Hearings on Equal Employment 
Opportunity Before the 
General Subcomm. on 
Labor of the House Comm, 
on Education and Labor,
88th Cong., 1st Sess,
(1963) ......................  74

-ix-



Page

Hearings on Equal Employment 
Opportunity.Before The 
Subcomm. on Employment 
and Manpower of the Senate 
Comm, on Labor and Public 
Welfare, 88th Cong.,
1st Sess. (1963) ...........  74

Administrative Decisions:
Matter of American Tobacco

Co., 9 NLRB 579 (1938)   67
Matter of American Tobacco

Co., 10 NLRB 1171 (1939)   67

Other Authorities:
Cooper and Sobol, Seniority 

and Testing Under Fair 
Employment Laws:
A General Approach to 
Objective Criteria of 
Hiring and Promotion,
82 Har.v.L. Rev. 1598
(1969) ......................  8

Frankfurter, Some Reflections 
on the Reading of Statutes,
47 Colum. L. Rev. 527 (1947). 34

-x-



Page
W. Gould, Black Workers in White

Unions ( 1 977 ).................. 61
H. Hill, Black Labor and the 

American Legal System: Race,
Work and the Law ( 1 977) ........ 61

Johnson, The Conflict of Caste and Class in an American 
Industry, 42 Am. J. Soc.55 ( 1 936 ) ................... 61 , 62, 65

R. Marshall, Labor in the South( 1 967) ..................... 61
R. Marshall, The Negro and

Organized Labor (1965) .....  60
R. Marshall and V. Briggs, The 

Negro and Apprenticeship 
(1967) ..................... 60

Murphy, Old Maxims Never Die:The "Plain-Meaning Rule" 
and Statutory Interpreta­
tion in the "Modern"
Federal Courts, 75 Colum.
L. Rev. 1299 ( 1975) ......  33, 34

G. Myrdal, An American Dilemma 
(1944) (Harper & Row ed.
1962 ) ..................... 60

H. Northrup, The Negro in the
Tobacco Industry (1970) ... 61, 62-69

H. Northrup, Organized Laborand the Negro ( 1944) .....  61

-xi-



Page
S. Spero and A. Harris,

The Black Worker (1931)
(Atheneum ed. 1974) ........  60 , 61 , 66

M. Sovern, Legal Restraints on 
Racial Discrimination in
Employment (1966)...........  73

G. Starnes and J. Hamm,
Some Phases of Labor
Relations In Virginia (1937). 61, 62-65

Vaas, Legislative History:
Title VII, 7 B.C. Ind. &
Com. L. Rev. 431 (1966) ....  41, 43, 50

R. Weaver, Negro Labor,
A National Problem (1946) ... 60

9

- X l l -



No. 80-1199
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

THE AMERICAN TOBACCO COMPANY, 
et al.,

Petitioners,
v.

JOHN PATTERSON, et al.

AMERICAN BRANDS, INC.,
Petitioner,

v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

On Writ Of Certiorari To The 
United States Court of Appeals 

For The Fourth Circuit

BRIEF FOR RESPONDENTS JOHN PATTERSON, ET AL.

STATEMENT OF THE CASE

These consolidated employment discrim­
ination cases concern the application of



2

§ 703(h) of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e-2(h), to 
seniority systems or lines of progression 
instituted after the effective date of the 
Act.

A. Proceedings'Below

This litigation began in 1969, when
John Patterson and other black employees
filed administrative charges alleging

1/discrimination by the company and the
2/

union at three American Tobacco Company

1/ In this brief, "company" refers col­
lectively to the American Tobacco Company, 
a Division of American Brands, Inc., and to 
American Brands, Inc.
2/ In this brief, "union” refers collec­
tively to the Tobacco Workers Interna­
tional Union and Local 182, Tobacco Workers 
International Union. The brief for the 
union petitioners states that, in 1978, the 
Tobacco Workers International Union merged 
with the Bakery and Confectionary Workers 
International Union to form the present



3

facilities in Richmond, Virginia. (App.
3/6). In 1973, the employees filed a 

class action in the district court, charg­
ing the company and the union with racial 
discrimination in violation of Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and the Civil Rights Act 
of 1866, 42 U.S.C. § 1981. (App. 2-3).
This action was consolidated for trial with 
a subsequent Title VII action, filed by the 
Equal Employment Opportunity Commission, 
alleging both race and sex discrimination.

2/ cont'd.
Bakery, Confectionary and Tobacco Workers 
International Union. Brief at 1 n.l.
3/ In this brief, "App." refers to the 
joint appendix filed in this Court; "J.A." 
refers to the joint appendix filed in the 
court of appeals; "Ex. App." refers to the 
joint exhibit appendix filed in the court 
of appeals; "Tr." refers to the trial 
transcript; and "PI. Ex." refers to plain­
tiffs' trial exhibits.



4

(App. 3).
Following the trial in 1974, the dis­

trict court found that the company and the 
union engaged in intentional race and sex 
discrimination until 1968; that thereafter 
they continued to discriminate against 
black and female employees in seniority, 
promotions, and job classifications; and 
that the company also discriminated 
against blacks and women in the selection 
of supervisors. (App. 7-11). The Fourth
Circuit affirmed these findings in 1976

4/(App. 75-78 , 93-94 , 96-97 ), and this
Court denied certiorari. (App. 108).

4/ The Fourth Circuit also affirmed, with some modifications, the relief ordered by 
the district court (App. 78-92, 94, 97-
104), but held that the EEOC's complaint 
against the union for sex discrimination 
should be dismissed due to the EEOC's 
failure to attempt conciliation before 
filing suit. (App. 94-96).



5
A

On remand, the company and the union 
filed a motion to vacate the district 
court's 1974 orders and to dismiss the 
complaints on the basis of this Court's 
1977 decision in International Brotherhood
of Teamsters v. United States, 431 U.S.

5/324. On appeal from the district court's 
denial of this motion, a majority of the 
Fourth Circuit panel held in 1978 that 
the case should be remanded for further 
findings on whether the seniority system 
was protected from Title VII liability 
by § 703(h) as interpreted in Teamsters.

5/ The motion also sought dismissal of the complaints on the basis of United Air Lines, 
Inc, v. Evans, 431 U.S. 553 (1977), and
Hazelwood School Dist. v. United States, 
433 U.S. 299 (1977). The Fourth Circuit en 
banc affirmed the district court's denial 
of the motion on the Evans issue and re­
manded the Hazelwood issue for further con­
sideration. (App. 146-53). No petition 
for certiorari was filed with respect to 
these issues.



6

(App. 117-18). The panel majority excluded 
from the scope of this remand all non­
seniority aspects of the challenged promo­
tional practices, including the use of 
lines of progression. The panel held that 
§ 703(h) could not immunize these lines 
of progression from liability because they 
were not part of a "seniority system" 
within the meaning of the statute. (App. 
116).

On rehearing er\ banc, the majority 
agreed with the panel that Teamsters re­
quired a remand for additional proof
and a new determination on the bona fides

6/of the seniority system. (App. 145-46). 
However, the en banc majority did not reach 
the question whether the lines of progres-

6/ No petition for certiorari was filed with respect to this issue.



7

sion were part of a "seniority system." 
Instead, the en banc court focused on the 
fact that the lines of progression were 
instituted in 1968 and held that, even if 
the lines were considered part of a senior­
ity system, § 703(h) did not apply because
the system was established after the effec-

7/tive date of Title VII. (App. 142-45). 
The question now before the Court therefore 
concerns the application of § 703(h) to
seniority systems or lines of progression/
which were instituted after July 2, 1965,
and which perpetuate prior intentional 
discrimination.

1_/ This issue was not briefed or argued by 
any party in the district court or before 
either the panel or the en banc court of 
appeals.



8

B. Discriminatory Practices

1. Before 1963; Rigid Segrega- t ion

These cases involve employment 
practices at three interrelated American 
Tobacco Company facilities in Richmond, 
Virginia: the "Virginia branch," which 
manufactures cigarettes; the "Richmond
branch," which manufactures pipe tobacco;

|and the "Richmond office," which maintains
accounts and records for both branches.

8/(App. 16-17, 75). The Virginia branch
and the Richmond branch are each divided 
into two production departments, largely

8/ The district court held that the 
company discriminated on the basis of race 
and sex in filling supervisory positions in 
the Richmond office (App. 8-9), and the 
Fourth Circuit affirmed this ruling. (App. 
96-97). The company did not challenge this 
ruling in its second appeal (see App. 125) 
or in the present petition for certiorari.



9

along racial lines: the predominantly black 
prefabrication departments blend and 
prepare tobacco for further processing, and 
the predominantly white fabrication depart­
ments manufacture the finished products.

£/(App. 18, 34, 75 ). The Tobacco Workers
Union is the bargaining agent for non-craft 
hourly production and maintenance employees 
in both departments of both branches.

W(App. 17).
Until 1963, the company and the union 

maintained an overt policy of job and

9/ The branches are also racially iden­
tifiable. The Richmond branch has a 
substantially larger percentage of black 
employees and lower wage rates than the 
Virginia branch. (App. 34-35).
10/ Other employees are represented by local unions affiliated with the Interna­
tional Brotherhood of Electrical Workers 
and the International Association of 
Machinists and Aerospace Workers. (App. 
17). Those unions are not parties to this 
lawsuit.



10

departmental segregation on the basis of 
race. As the Fourth Circuit stated:

Before 1963 the union and the company overtly segregated employees 
by race with respect to job assign­
ments, cafeterias, restrooms, lockers, 
and plant entrances. White employees 
were represented by Local 182 of the 
Tobacco Workers International Union, 
while black employees were repre­
sented by Local 216.

(App. 75). Blacks were assigned to the
lower paying prefabrication departments,
while jobs in fabrication were largely11/reserved for whites. Promotions were 
made on the basis of departmental seniority, 
and employees could not transfer from one

11/ White employees held a small number of tKe best paid jobs in the prefabrication 
departments (App. 34), while black employ­
ees held some low paid manual labor and 
cleaning jobs in the fabrication depart­
ments. (Ex. App. 46-48). Until 1963, 
there was a separate miscellaneous depart­
ment at the Virginia branch containing two 
job classifications held only by blacks: 
cleaner and elevator operator. (App. 
33).



department to another without forfeiting 
seniority. (App. 75). Job classifications 
were segregated by sex as well as race. 
(App. 43-46). The company appointed only 
white males to supervisory posts. (App. 
96).

2. 1963-1968; Continuing Inten­
tional Discrimination

In 1963, under government pres-11/sure, the segregated locals were merged 
and the departmental seniority system was 
replaced with a branch seniority system. 
(App. 75). However, • as the district court-

12/ The president of Local 182 testified that "we were informed by the Defense 
Supply Agency that if we continued to 
maintain segregated local unions, then the 
Defense Supply Agency may have to step in 
and say we will cancel all government 
contracts with the American Tobacco 
Company, which if this would have happened 
would have meant detrimental loss to our 
membership." (J.A. 202).



12

and the court of appeals held, intentional
discrimination continued. Although
the departmental seniority system was no
longer in effect at the Virginia branch,
blacks were now denied access to better
jobs on the basis of unwritten, subjective
selection procedures administered by white

11/supervisors. (App. 75-76). Despite
the change in the form of the seniority 
system, employees with the greatest branch 
seniority were not promoted to automatic 
machinery jobs in the fabrication depart­
ment unless the supervisors determined they 
were "qualified." (App. 28, 76). Super­
visors canvassed employees to determine 
their interest in potential vacancies.

13/ There were 71 supervisory employees at the Virginia branch in 1969. The number of 
black supervisors increased from only one 
in 1963 to only three in 1969. (App. 34).



13

(App. 28). An employee was deemed "quali­
fied" if he or she "had filled a particular 
job before and was, in the opinion of 
supervisory personnel, familiar with it." 
(App. 28). Since all but a token number of 
blacks had not been permitted to hold these
jobs on either a permanent or a temporary11/basis up to that time, very few black 
employees were deemed "qualified" for these 
promotions under the procedures instituted 
in 1963. (Tr. 108-13). Not surprisingly, 
there was an increase of only four black 
employees in the fabrication department of

11/ Prior to 1963, black employees were not permitted to fill temporary vacancies 
in job classifications restricted to 
whites. (App. 33). Since 1963, employees 
in the predominantly black prefabrication 
departments have generally filled temporary 
vacancies in those departments, and employ­
ees in the predominantly white fabrication 
departments have generally filled temporary 
vacancies in those departments. (App. 28 ).



14

the Virginia branch between 1963 and 1968. 
15/(App. 76).

At the Richmond branch, the white
• 11/supervisors canvassed employees to

determine their "interest" in each vacancy.
A supervisor then selected the most senior 
employee deemed by the supervisor to be 
willing to fill the vacancy. Vacancies 
were not posted, and there were no written 
job descriptions. (App. 76). Despite the'

15/ In 1963, 11.8 percent of the employees 
at the Virginia branch (196 of 1,653 
employees) were black. (App. 34). The 
number of blacks in the fabrication depart­
ment increased only from 82 in 1963 to 86 
in 1968. (Ex. App. 46-47 ). In both 1963 
and 1968, the great majority of black 
employees in the fabrication department 
were assigned to manual labor, cleaning, 
and other non-machine operator jobs. (Ex. 
App. 46-47).
16/ There were 31 supervisory employees at tEe Richmond branch in 1973. The first 
black supervisor was appointed in 1966; the 
second was not appointed until 1971. (App. 
35).



15

formal change in 1963 from departmental to
branch seniority, there was an increase of
only six black employees in the fabrication
department of the Richmond branch between11/1963 and 1968. Throughout this period, 
the company also discriminated against fe­
male employees at both branches. (App. 
93-94).

The continuing discrimination against 
black and female employees was intentional. 
The courts below held that, while there 
was no discrimination in hiring after 1965, 
it was not until 1968 that the company and

17/ In 1967, 32.1 percent of the employees 
at the Richmond branch (79 of 246 employ­
ees) were black. (App. 35). The number of 
blacks in the fabrication department 
increased only from 6 in 1963 to 12 
in 1968. (Ex. App. 48). In both 1963 and 
1968, most of the black employees in the 
fabrication department were assigned to 
general labor and'other non-machine oper­
ator jobs. (Ex. App. 48).



16

the union instituted promotional policies 
which were fair even in form. (App. 7, 
75-76, 114).

3. 1968 and After; The Lines of Pro­gression —

On January 15, 1968, the company 
instituted a posting and_ bidding system 
for filling vacancies in the Tobacco
Workers bargaining unit. Under this>
system, vacancies, were posted on plant 
bulletin boards for employee bids. The job 
was awarded to the bidder with the most 
branch seniority in the branch containing 
the vacancy. {App. 21-23). The district 
court found that this system was fair but 
that it needed further implementation 
through the posting of written job descrip­
tions, and the Fourth Circuit affirmed this 
finding. (App. 8-9, 76-78).



17

The district court also found that 
after January 1968 the company and the 
union engaged in two other discriminatory 
practices: (1) continuation of the previous 
practice of maintaining a separate senior­
ity roster for each branch and conditioning 
inter-branch transfers upon forfeiture of 
accrued seniority; and (2) institution of 
lines of progression which perpetuated the 
effects of the prior intentional discrimi­
nation and segregation. (App. 7, 31-32,
76-77). The Fourth Circuit en banc has 
remanded this case to the district court 
for further findings concerning the 
first practice. (App. 145-46). Only the 
second practice is before this Court.

The lines of progression which are at11/issue here were not included in the Jan-

21/ The nine lines of progression are as 
follows: (1) packing or making machine



18

uary 1968 collective bargaining agreement. 
(See PI. Ex. 35FF-4). Rather, these lines 
were established by the company in November 
1968 (J.A. 570 ), and were ratified by the 
union in 1969. (J.A. 245-47).— ^ Two-thirds

18/ cont'd.
operator or Schmermund boxer operator to 
learner adjuster; (2) catcher to examiner­
making; (3) line searcher-Schmermund boxer 
to examiner-packing; (4) boiler operator 
to turbine operator; (5) learner adjuster 
to adjuster; (6) making or packing ad­
juster to overhaul adjuster; (7) adjuster 
helper-prefabrication to adjuster-prefabri­
cation; (8) assistant adt dryer operator to 
adt dryer operator; (9) assistant textile 
dryer operator to textile dryer operator. 
(App. 21-22). The courts below held that 
the lines leading to adjuster, overhaul 
adjuster, and adjuster-prefabrication are 
justified by business necessity and there­
fore are lawful despite their discrimina­
tory effect on blacks and women. (App. 31-32, 79).
19/ Both the company and the union stipu­lated in their joint petition for cer­
tiorari that, " [sjolely for purposes of 
this petition, petitioners treat the lines 
of progression as having come into exis-



19

of all hourly paid non-craft employees at
the two branches hold jobs in the lines of

20/progression. Each line is composed of

19/ cont'd.
tence after Title VII's effective date." 
Pet. at 5 n.5. The majority opinion of 
the en banc court below stated that the 
line-of-progression policy was adopted in 
January 1968. (App. 143). The dissenting 
opinion questioned whether the record was 
complete on this factual issue but acknowl­
edged that "the majority holding as to the 
effect of § 703 (h) on the lines of pro­
gression within the seniority system is 
based entirely on the fact that the lines 
did not exist in 1965." (App. 177). The 
dissenting judges would have remanded the 
case for factual findings on the origins of 
the lines of progression. (App. 161-62).
20/ Each line of progression involves only 
two or three job classifications. See 
Company Brief at 4 n.7. However, out of a 
combined total of 952 hourly paid non-craft employees at the Virginia and Richmond 
branches, approximately 646 hold jobs in 
the relatively small number of classifica­
tions included in the lines of progression. 
These 646 employees hold the vast majority 
of the highest paid jobs at both branches. 
(Ex. App. 158-62).



20

traditionally segregated jobs: there are
2J_/

seven white lines of progression and
22/

two black lines of progression. The
jobs in the white lines pay substantially

23/
more than the jobs in the black lines.

21/ The lines leading to learner adjuster, 
examiner-making, examiner-packing, turbine 
operator, adjuster, overhaul adjuster, and 
adjuster-prefabrication are composed of 
jobs held almost exclusively by whites. 
In 1968, only one black employee held a 
top job in any of these lines. (Ex. App. 
46-48). By 1973, there was still only one 
black employee in a top job, but there were 
120 white employees in top jobs in these 
lines of progression. A total of approxi­
mately 641 employees held all jobs in these 
lines in 1973. (Ex. App. 158-62).
22/ The jobs of assistant adt dryer oper­
ator, adt dryer operator, assistant tex­
tile dryer operator, and textile dryer 
operator have never been held by white employees. (Ex. App. 171-74). In 1973, a 
total of five black employees at the Vir­
ginia branch held all the jobs in these two 
lines of progression. (Ex. App. 158-62 ).
23/ The top jobs in the white lines are 
among the highest paid hourly production 
jobs at both branches. The jobs in the 
black lines pay substantially less. (Ex. 
App. 155-62).



21

The great majority of the jobs included in
the lines of progression are held by white
employees at the top of the wage scale in
the fabrication department of the Virginia

24/
branch. (App. 78-79).

When a vacancy occurs in one of the
top jobs in a line of progression, only
employees who have held a lower job in that
line are eligible to bid on the vacancy.
(App. 21-22). Among the eligible bidders,
promotion is not determined by either
seniority in the lower job or seniority in
the line of progression; rather, branch

25/
seniority controls. The requirement

24/ As late as 1973, line-of-progression 
jobs were held by approximately 585 whites 
and only 61 blacks. Approximately 619 of 
these jobs were at the Virginia branch, 
while only 27 of the jobs were at the 
Richmond branch. (Ex. App. 158-62).
25/ The company and the union have repeat­
edly acknowledged that branch seniority is 
used for advancement within the lines of



22

of prior service in 
of progression thus

a job within a line 
operates as a pre-

25/ cont'd.
progression. For example, in briefs filed 
in the court of appeals, the company 
described the operation of the lines of 
progression in the following terms: "In
these lines of progression, only those 
employees in the job classification immedi­
ately below .the vacancy may bid. The 
employee with the greatest plant-wide 
[i.e., branch] seniority receives the pro­
motion. " Joint Brief of American Tobacco 
Co. and American Brands, Inc., Nos.75-1259/ 
1263, at 13. See also id. at 10; Joint 
Reply Brief of American Tobacco Co.and 
American Brands, Inc., Nos. 75-1259/1263, 
at 18 ("employees move through the lines 
of progression based on plant-wide senior­
ity, not date of entry into the line of 
progression"); Joint Petition for Rehear­
ing of American Tobacco Co. and American 
Brands, Inc., Nos. 75-1259/1263, at 10 
("plant-wide seniority is used both to 
obtain an entry level job in any line 
of progression and to progress up each 
line"); Joint Brief of American Tobacco 
Co., American Brands, Inc., Tobacco Workers 
International Union, and Local 182, TWIU, 
Nos. 78-1083/1084, at 7 ("[w]ithin the 
line, only those employees in the job 
classification immediately below a vacancy 
could bid, although plant-wide seniority



23

requisite for the application of the 
seniority system. Among the limited 
number of employees who satisfy this 
prerequisite and are therefore eligible 
to bid on a vacancy, branch seniority is 
applied to determine the successful bidder.

The lines of progression, superimposed 
on the rigidly segregated employment pat­
tern of the past, denied black and female

25/ cont'd.
and not seniority within the line control­
led"). However, the company and the union 
have also made the contradictory assertion 
that, for promotion to a permanent vacancy 
above the entry level within most lines of 
progression, job seniority in the immedi­
ately preceding job is controlling. Joint 
Reply of American Tobacco Co., American 
Brands, Inc., Tobacco Workers International 
Onion, and Local 182, TWIU, to Plaintiffs' 
Responses to Petition for Rehearing, Nos. 
78-1083/1084, at 4-5. While finding "con­
siderable support" for the position that 
branch seniority is used for advancement 
within the lines of progression, the en 
banc majority below concluded that the 
record is ambiguous on this question. 
(App. 142-43 n.3).



24

employees the opportunity to advance 
to traditionally white male jobs. The 
intentionally discriminatory policy of 
promotions based on subjective supervisory 
determinations of "interest" and "qualifi­
cations,” which had replaced overt job and

»

departmental segregation in 1963, was in 
turn replaced in 1968 by the lines of 
progression. Blacks who were previously 
excluded from white jobs on the basis of 
race now were told that, because they had 
not held these jobs in the past, they would 
not be permitted to move up to higher pay­
ing white jobs in the new lines of progres­
sion. (App. 78-79). Women were similarly 
denied equal access to male jobs. (App. 
93). The district court accordingly found 
that the lines of progression perpetuated 
past discrimination on the basis of race 
and sex. (App. 31-32). While three of the



25

lines were justified by business necessity
and therefore were upheld despite their

26/perpetuation of past discrimination, the 
remaining lines were not supported by 
any adequate business justification and 
were unlawful. (App. 31-32). As the 
Fourth Circuit stated in affirming these 
findings:

Most of these jobs [in the lines 
of progression] were in the 
fabrication departments. Since 
black employees had been largely 
excluded from the fabrication 
departments, they held few jobs in most of these lines and could 
not advance despite their senior­
ity. In this respect, the lines 
of progression perpetuated the 
effects of past discrimination in 
a manner similar to the formerly 
segregated departmental seniority 
rosters. On the basis of its

26/ The court held that the lines- leading 
to adjuster, overhaul adjuster, and ad­
juster-prefabrication were justified by business necessity. (App. 31-32). in 
1 973, the top jobs in these lines were 
held by 80 employees, all of whom were white. (Ex. App. 158-62).



26

evaluation of conflicting expert 
testimony, the district court
held that only three of the
nine lines are justified by
business necessity. For the 
others, alternative means such 
as on-the-job training are 
available to provide competent 
workers.

(App. 78-79) (footnote omitted).
The record provides ample support for 

these findings. By 1973 —  five years after 
the lines of progression were instituted
—  rigid segregation of job classifi­
cations continued to characterize both 
branches. (App. 78). Whites still held 
all but one of 121 jobs at the top of the 
seven white lines of progression; the lone 
exception was a single black learner ad­
juster. (Ex. App. 158-62). White employ­
ees also continued to dominate the lower 
jobs in these lines: whites held approxi­
mately 465 of these jobs, while blacks held 
only 55. (Ex. App. 158-62). Moreover, of



27

approximately 200 hourly paid non-craft job 
classifications at the Virginia branch, 18 
had never been held by whites and 10 
had never been held by blacks. Of approxi­
mately 43 such classifications at the 
Richmond branch, 21 had never been held by 
whites and nine had never been held by 
blacks. (App. 78). Finally, the prefab­
rication department at the Virginia branch 
remained more than 80 percent black, while 
the fabrication department was still 86 
percent white. The prefabrication depart­
ment at the Richmond branch remained 
92 percent black, while the fabrication 
department was 62 percent white. (App. 
77). It is therefore clear from the record 
that the lines of progression and other 
post-1968 practices perpetuated the overt 
segregation and intentional discrimination 
of the past.



28

SUMMARY OF THE ARGUMENT

The historical evidence establishes a 
longstanding pattern of segregation and 
discrimination against black workers in 
the tobacco industry. In keeping with the 
racial policies of the industry, both the 
company and the union in this case were 
operated on a strictly segregated basis 
until 1 963. The system of overt job and 
departmental segregation was then replaced 
by a system of intentional discrimination 
in promotions. Under the guise of evalu­
ating "interest" in vacancies and "qualifi­
cations" for promotions, white supervisors 
restricted black employees to historically 
black jobs. This intentionally discrimi­
natory promotional system continued until 
1968, three years after the effective date 
of Title VII, when it was replaced by a



29

system based on lines of progression. The 
line-of-progression system, superimposed on 
the pre-existing pattern of rigid segrega­
tion and intentional discrimination, has 
perpetuated the racially exclusionary poli­
cies of the past by continuing to deny 
black workers access to historically white 
jobs at the top of the pay scale.

The legislative history of Title VII 
' and the prior decisions of this Court 
establish that § 703(h) was not intended 
to protect such post-Act systems. Rather, 
§ 703(h) provides a narrow exemption which 
was specifically designed to protect bona 
fide seniority systems which were in exis­
tence before the effective date of Title 
VII. Where, as here, an employer and a 
union have instituted a system after the 
effective date of Title VII which perpe­
tuates their own prior intentional discrim-



30

ination, the system is prohibited. This 
interpretation of Title VII and § 703(h) 
accords with the fundamental purpose and 
underlying policies of the Civil Rights Act 
of 1964.

In addition, the lines of progression 
are not part of a "seniority system" within 
the meaning of § 703(h). Instead, the re­
quirement of prior service in a line of 
progression operates as a prerequisite for 
eligibility to bid on higher-rated jobs in 
the line. Satisfaction of this prerequi­
site is not determined by seniority in any 
job, or by seniority in the line of pro­
gression, or by any other measure of time 
served in employment. Rather, the mere 
fact of service in a line-of-progression 
job determines eligibility for advancement. 
Among the limited group of employees who 
satisfy this non-seniority eligibility re-



31

quirement, branch seniority is applied to 
determine the successful bidder. Since the 
line-of-progression requirement is not part 
of a "seniority system," it is not protect­
ed by § 703(h).

ARGUMENT

I. SECTION 703 (h) OF TITLE VII DOES NOT 
AUTHORIZE THE POST-ACT ADOPTION OF 
SENIORITY SYSTEMS WHICH PERPETUATE 
INTENTIONAL DISCRIMINATION AND 
SEGREGATION.

A. Section 703 (h) Should Be Read in
the Context of the Relevant Leq-
islative Materials, the Prior• De-
c is ions of this Court, and theHistory and Purpose of Title VII.

Section 703(h) of Title VII provides 
in pertinent part as follows:

Notwithstanding any other 
provision of this subchapter, it 
shall not be an unlawful employ­
ment practice for an employer to



32

apply different standards of com­
pensation, or different terms, 
conditions, or privileges of em­
ployment pursuant to a bona fide 
seniority or merit system, ... 
provided that such differences 
are not the result of an inten­
tion to discriminate because of 
race ....

42 U.S.C. § 2000e-2(h).
Petitioners argue that the "plain lan­

guage" of the statute applies to post-Act
27/

as well as pre-Act seniority systems. 
This Court, however, has rejected the sim­
plistic notion that statutory language can 
have a fixed meaning apart from the context 
in which it is used. "It is a 'familiar 
rule, that a thing may be within the letter

27/ Respondents submit that the lines of progression instituted in 1 968 are not a 
"seniority system" or part of a "seniority 
system” within the meaning of § 703(h). 
See Argument II, infra. For the purposes 
of the present discussion, however, respon­
dents will refer to the lines of progres­
sion as a "seniority system."



33

of the statute and yet not within the stat­
ute, because not within its spirit, nor 
within the intention of its makers. 
United Steelworkers of America v. Weber, 
443 U.S. 193, 201 (1979), quoting Holy
Trinity Church v. United States, 143 U.S. 
457, 459 (1892). See also Guiseppi v. Wal­
ling, 144 F. 2d .608, 624 (2d Cir. 1944), 
aff'd sub nom. Gemsco Inc, v. Walling, 324 
U.S. 244 (1945).

Thus, "'[w]hen aid to construction of 
the meaning of words, as used in the sta­
tute, is available, there certainly can 
be no "rule of law" which forbids its use, 
however clear the words may appear on 
"superficial examination."'" Train v . 
Colorado Public Interest Research Group, 
Inc., 426 U.S. 1, 10 (1976), quoting United 
States v. American Trucking Associations, 
310 U.S. 534, 543-44 (1940 ). See Murphy,



34

Old Maxims Never Die; The "Plain-Meaning 
Rule" and Statutory Interpretation in the 
"Modern" Federal Courts, 75 Colum. L. Rev. 
1299 (1975); Frankfurter, Some Reflections 
on the Reading of Statutes, 47 Colum. L. 
Rev. 527 (1947). As Justice Frankfurter 
stated in analyzing a provision of the 
National Labor Relations Act:

Unlike mathematical symbols, 
the phrasing of such social leg­
islation as this seldom attains 
more than approximate precision 
of definition. That is why all 
relevant aids are summoned to 
determine meaning. Of compelling 
consideration is the fact that 
words acquire scope and function 
from the history of the events 
which they summarize.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 
185-86 (1941).

Section 703(h) must therefore be read 
"against the background of the legislative 
history of Title VII and the historical 
context from which the Act arose." United



35

Steelworkers v. Weber, 443 U.S. at 201. 
The relevant aids to the construction of 
§ 703(h) —  the legislative materials con­
cerning the statute, the prior decisions 
of this Court, and the history and purpose 
of Title VII —  all demonstrate that, in 
the circumstances of this case, § 703(h)
does not immunize a post-Act seniority sys­
tem which perpetuates intentional discrimi- 

28/
nation. *

B. The Legislative History of 
§ 703(h), Analyzed in Prior Deci­
sions of this Court, Establishes 
that the Statute Does Not Exempt 
Post-Act Seniority Systems which 
Perpetuate Intentional Discrimi­
nation and Segregation.

Petitioners argue that, in enacting 
§ 703(h), Congress sought to assure that 
Title VII would "not interfere with job

28/ Neither Alexander v. Aero Lodge 735, 
565 F.2d 1364 (6th Cir.1977), cert, denied,



36

seniority," 110 Cong. Rec. 5423 (1964)
(remarks of Sen. Humphrey), and that it 
"would not affect seniority at all." Id̂ . at 
7207 (remarks of Sen. Clark). See Company 
Brief at 15-20; Union Brief at 25-27. In 
relying on these and similar isolated 
statements in the legislative record, peti­
tioners have proved too much. As this 
Court held in Franks v. Bowman Transporta­
tion Co. , 424 U.S. 727 (1976 ), Title VII
does affect seniority rights accrued after 
the effective date of the Act. The Court

28/ cont'd.
436 U.S. 946 (1978), nor Hameed v. Iron
Workers Local 396, 637 F.2d 506 (8th Cir.
1980), nor any of the other lower court 
decisions cited by the company (Brief at 
25-26 n.32) and the union (Brief at 9 n.5) 
discusses the relevant legislative mate­
rials or the history and purpose of 
Title VII. Those cases simply do not 
address the question presented here.



37

in Franks held that, in enacting § 703(h), 
Congress did not intend to bar an award 
of retroactive seniority to the identifi­
able victims of unlawful discrimination. 
424 U.S. at 757-62. To the contrary, such 
relief ordinarily is required under Title 
VII, and it may go back as far as the 
effective date of the Act, notwithstanding 
its effect of diminishing the seniority 
rights of other, arguably innocent, employ­
ees. Id. at 762-70. See also Teamsters, 
431 U.S. at 346-48, 356-57. "'If relief
under Title VII can be denied merely be­
cause the majority group of employees, who 
have not suffered discrimination, will be 
unhappy about it, there will be little hope 
of correcting the wrongs to which the Act 
is directed.'" Franks, 424 U.S. at 775,
quoting United States v. Bethlehem Steel
Corp. , 446 F. 2d 652, 663 (2d Cir. 1971).



38

Thus, despite the isolated statements 
quoted by petitioners, Congress clearly did 
not intend to enact an impenetrable barrier 
of protection for all seniority systems. 
When read in the context of the history and 
purpose of Title VII, these statements and 
the other legislative materials concerning 
§ 703(h) demonstrate that Congress did not 
intend to immunize post-Act seniority, sys­
tems which perpetuate past intentional 
discrimination.

As the petitioners appear to concede, 
there is no indication in the legislative 
history that Congress directly addressed 
the question presented by this case. 
Rather, congressional concern and debate 
were focused on the question whether 
"established" or "existing" seniority 
rights would be affected.

In its opinions in Franks and Team-



39

sters, this Court extensively reviewed the
legislative history of § 703(h). As the
Court noted in Franks, the initial bill
reported by the House Judiciary Committee, 

29/
H.R. 7152, did not contain § 703 (h) or
any other reference to seniority. 424 U.S. 
at 759. Although the majority Judiciary 
Committee report did not mention the sub­
ject of seniority, the minority report 
"charged that [the bill] would destroy 
existing seniority rights." Teamsters, 431 
U.S. at 350 (emphasis added) (footnote 
omitted). See H.R. Rep. No. 914, 88th 
Cong., 1st Sess. 65-66, 71 (1963) (minority 
report). Representative Dowdy, a member of 
the Judiciary Committee minority, argued on 
the House floor that the bill would require

29/ H.R. 7152, 88th Cong., 1st Sess. 
(1963). See H.R. Rep. No. 914, 88th Cong., 
1st Sess. (1963). -



40

revision of "established seniority" rights.
30/110 Cong. Rec. 2726 (1964). He there­

fore offered an amendment whose purpose was 
to "make the seniority system or merit 
system of hiring an exception to the rule 
of race, color, creed, and so on, in order 
that an employer may make a hiring decision
or determination based on the merit system

31/or seniority system ...." Ic3. at 2725.

30/ Other members of the House expressed 
similar concerns. See 110 Cong. Rec. 2557 
(1964) (remarks of Reps. Winstead and Ash­
more); id. at 2560 (remarks of Rep. Alger).
31 / The Dowdy amendment provided as fol­
lows:

The provisions of this title shall 
not be applicable to any employer 
whose hiring and employment practices 
are pursuant to (1) a seniority sys­
tem; (2) a merit system; (3) a system 
which predicates its practices upon 
ability to produce, either in quantity 
or quality; or (4) a determination 
based on any factor other than race, 
color, religion, or national origin.

110 Cong. Rec. 2727-28 (1964).



41

The Dowdy amendment was defeated without 
discussion or debate, id. at 2728, and on 
February 10, 1964, H.R. 7152 passed the 
House. I_d. at 2804-05.

When the bill went to the Senate, it 
still did not contain § 703(h) or any other 
reference to seniority systems. Since the 
bill was not referred to any standing com­
mittee but instead went directly to the 
Senate floor, there is no Senate committee 
report providing any insight into legisla­
tive intent. See Vaas, Legislative History: 
Title VII, 7 B.C. Ind. & Com. L. Rev. 431, 
443-44 (1966) (hereinafter "Vaas"). How­
ever, the bill was extensively debated on 
the floor of the Senate in the course of 
a prolonged filibuster. The subject of 
seniority surfaced during this debate. 
Franks, 424 U.S. at 759. Senate critics 
of the bill reiterated the fears expressed



42

by House opponents that Title VII would
require preferential hiring of minorities
to achieve racial balance, and that the
minorities hired would then be given
special seniority rights placing them

32/ahead of incumbent whites. Support­
ers of the bill responded that Title VII

33/
"would not affect" seniority rights,

32/ For example, Senator Hill of Alabama 
argued that Title VII "would undermine ... 
the seniority system" and "would force em­
ployers and unions, both, to discriminate, 
to hire by race ...." 110 Cong. Rec. 486, 
487 (1964). He asserted that "[r]acial
balance might be required in every position 
.... Race —  not ability, not seniority, 
and union contracts notwithstanding —  
would be the first criterion —  the exact 
opposite of what the language of the bill 
apparently says." 1(3. at 488. As Senator 
Hill read the bill, " [n]ondiscrimination 
is no longer sufficient; preferential 
treatment is demanded. It is to preferen­
tial treatment, as embodied in this bill, 
that I most vigorously object." I d .
33/ See, e.g., 110 Cong. Rec. 5094 (1964) 
(remarks of Sen. Humphrey).



43

but opponents continued to argue that the 
bill "would destroy existing seniority 
systems ..." Franks, 424 U.S. at 759 (em­
phasis added). See also Teamsters, 431

34/U.S. at 350 and n.33.
It was in response to these claims

35/that Senator Clark, on April 8, 1964,
introduced into the Congressional Record

34/ For example, Senator Stennis of 
Mississippi asserted that Title VII would 
"require employment on the basis of race, 
and so forth," and would mandate "[prefer­
ential advance of minorities so as to 
destroy seniority in employment, civil 
service and apprenticeship programs ...." 110 Cong. Rec. 7091 (1964).
35/ "Bipartisan captains" were selected 
for each title of the bill in the Senate. 
Senators Clark of Pennsylvania and Case of 
New Jersey were the bipartisan captains 
responsible for explaining Title VII, 
defending it, and leading discussion on it 
during the Senate'debate. 110 Cong. Rec. 
6528 (1964) (remarks of Sen. Humphrey);
Vaas at 444-45. See Teamsters, 431 U.S. at 351 n.35.



44

three documents containing, inter alia, 
statements explaining the bill's effect on 
seniority rights. See Franks, 424 U.S.
at 759-61; Teamsters, 431 U.S. at 350-51. 
"While these statements were made before 
§ 703 (h) was added to Title VII, they are 
authoritative indicators of that section's 
purpose." Teamsters, 431 U.S. at 352 .
These statements unequivocally demonstrate 
that the purpose of § 703(h) was to assure 
the bill's opponents that Title VII would 
not require preferential treatment of 
minorities at the expense of seniority 
rights existing at the time Title VII took 
effect.

The first of the three documents in­
troduced by,Senator Clark was a statement 
prepared by the Department of Justice at 
Senator Clark's request to rebut the argu-



45

merits made by Senator Hill. 110 Cong. Rec. 
7206-07 (1964). See Teamsters, 431 D.S. at 
351 n.36. This statement specifically de­
clared that Title VII would not "undermine 
vested rights of seniority" and would have 
"no effect on seniority rights existing at
the time it takes effect." Id. at 7207

3 6 /(emphasis added). The second docu­
ment was an interpretive memorandum submit­
ted jointly by Senators Clark and Ca’se.

36/ The portion of 
statement pertinent 
full:

the Justice Department 
to seniority reads in

First, it has been asserted that 
title VII would undermine vested 
rights of seniority. This is not 
correct. Title VII would have no 
effect on seniority rights existing 
at the time it takes effect. If, for 
example, a collective bargaining 
contract provides that in the event 
of layoffs, those who were hired last 
must be laid off first, such a provi­
sion would not be affected in the 
1-east by title VII. This would be 
true even in the case where owing to



46

Id. at 7212-15. This memorandum stated 
that Title VII "would have no effect on 
established seniority rights. Its effect 
is prospective and not retrospective."

36/ cont'd.
discrimination prior to the effective 
date of the title, white workers 
had more seniority than Negroes. 
Title VII is directed at discrimina­
tion based on race, color, religion, 
sex, or national origin. It is 
perfectly clear that when a worker is 
laid off or denied a chance for 
promotion because under established 
seniority rules he is "low man on the 
totem pole" he is not being discrimi­
nated against because of his race. 
Of course, if the seniority rule 
itself is discriminatory, it would be 
unlawful under title VII. If a rule 
were to state that all Negroes must be 
laid off before any white man, such a 
rule could not serve as the basis for 
a discharge subsequent to the effec­
tive date of the title. I do not know 
how anyone could quarrel with such a 
result. But, in the ordinary case, 
assuming that seniority rights were 
built up over a period of time during 
which Negroes were not hired, these 
rights would not be set aside by the 
taking effect of title VII. Employ-



47
37/

Id, at 7213 (emphasis added). The third 
document submitted by Senator Clark was a 
set of answers to questions posed by Sena­
tor Dirksen. Ici. at 7215-17. In response

36/ cont'd.
ers and labor organizations would 
simply be under a duty not to dis­
criminate against Negroes because of 
their race. Any differences in treat­
ment based on established seniority 
rights would not be based on race and 
would not be forbidden by the title.

110 Cong. Rec. 7207 (1964).
37/ The full text of the section of the 
Clark-Case memorandum pertaining to senior­
ity states:

Title VII would have no effect on 
established seniority rights. Its ef­
fect is prospective and not retrospec­
tive. Thus, for example, if a busi­
ness has been discriminating in the 
past and as a result has an all-white 
working force, when the title comes 
into effect the employer's obligation 
would be simply to fill future vacan­
cies on a nondiscriminatory basis. He 
would not be obliged —  or indeed, 
permitted —  to fire whites in order 
to hire Negroes, or to prefer Negroes



48

to a question about seniority, Senator 
Clark stated that " [t]he bill is not retro­
active, and it will not require an employer
to change existing seniority lists." Iti. at

38/
7217 (emphasis added).

37/ cont'd.
for future vacancies, or, once Negroes 
are hired, to give them special se­
niority rights at the expense of the 
white workers hired earlier. (How­
ever, where waiting lists for employ­
ment or training are, prior to the 
effective date of the title, main­
tained on a discriminatory basis, the 
use of such lists after the title 
takes effect may be held an unlawful 
subterfuge to accomplish discrimina­
tion. )

110 Cong. Rec. 7213 (1964).
38/ Two of the questions and answers per­
tained to seniority:

Question: Would the same situation
prevail in respect to promotions, when 
that management function is governed 
by a labor contract calling for promo­
tions on the basis of seniority? What 
of dismissals? Normally, labor con­
tracts call for "last hired, first



49

Following the introduction of these 
documents into the Record, the filibuster 
continued. Several weeks later, after a 
number of informal conferences among the 
Senate leadership, the House leadership,

38/ cont'd.
fired." If the last hired are Negroes, 
is the employer discriminating if his 
contract requires they be first to be 
fired and the remaining employees are 
white?
Answer: Seniority rights are in no 
way affected by the bill. If under a 
"last hired, first fired" agreement a 
Negro happens to be the "last hired," 
he can still be "first fired" as long 
as -it is done because of his status as 
"last hired" and not because of his 
race.
Question: If an employer is directed 
to abolish his employment list because 
of discrimination what happens to 
seniority?
Answer: The bill is not retroactive, 
and it will not require an employer to 
change existing seniority lists.

110 Cong. Rec. 7217 (1964).



50

the Attorney General and others, a compro­
mise substitute bill prepared by Senators 
Mansfield and Dirksen was introduced on 
the Senate floor. 110 Cong. Rec. 11926, 
11930-34 (1964). Franks, 424 U.S. at 760- 
61. See Vaas at 431 , 445-46. The Mans-
field-Dirksen proposal was offered as a 
substitute for the entire bill in an 
effort to bring an end to the filibuster. 
See 110 Cong. Rec. 12706-07 ( 1 964 ). The
language of § 703(h) pertaining to senior­
ity appeared in its final form in the 
substitute bill. Id. at 12813.

One of the principal goals of the 
compromise substitute bill was to resolve 
the ambiguities in the House-passed version 
of H.R. 7152. Teamsters, 431 U.S. at 352. 
See 110 Cong. Rec. 11935-37 (1964) (remarks 
of Sen. Dirksen);' id. at 12707 (remarks' of 
Sen. Humphrey). "As the debates indicate,



51

one of those ambiguities concerned Title 
VII*s impact on existing collectively bar­
gained seniority rights." Teamsters, 431
U.S. at 352 (emphasis added). Senator 
Humphrey explained that, in resolving this 
particular ambiguity, § 703(h) "does not
narrow application of the title, but merely 
clarifies its present intent and effect." 
110 Cong. Rec. 12723 ( 1 964 ). See also id. 
at 12818-19 (remarks of Sen. Dirksen). 
There was no further attempt to amend the
language of the statute pertaining to sen-

39/
iority systems. Title VII, including 
§ 703(h), subsequently was passed by both 
the Senate, _id̂  at 14511, and the House,

39/ Section 703(h) was amended, however, 
to provide that it shall not be unlawful 
"for an employer to give and to act upon 
the results of any professionally developed 
ability test provided that such test, its 
administration or action upon the results 
is not designed, intended,’ or used to



52

id, at 15897, and it was signed into law on 
July 2, 1964, as part of the Civil Rights
Act of 1964. Id. at 17783.

Based upon its review of the legisla­
tive history in Franks, the Court concluded 
as follows:

[W]hatever the exact meaning and scope of § 703(h) in light of its
unusual legislative history and the 
absence of the usual legislative 
materials, see Vaas, supra, at 457-458, 
it is apparent that the thrust of the 
section is directed toward defining 
what is and what is not an illegal 
discriminatory practice in instances 
in which the post-Act operation 
of a seniority system is challenged as 
perpetuating the effects of discrimi­
nation occurring prior to the effec­
tive date of the Act ....

424 U.S. at 761. Justice Powell, joined by

39/ cont'd.
discriminate because of race, color, reli­
gion, sex, or national origin." 42 U.S.C. 
§ 2000e-2(h). For a discussion of the 
legislative history of this amendment, see 
Griggs v. Duke Power Co., 401 U.S. 424,
434-36 (1971). Following this amendment,



53

Justice Rehnquist, agreed with the majority 
that "the 'thrust' of that section is the 
validation of seniority plans in existence 
on the effective date of Title VII." Id. at 
791 (concurring in part and dissenting in 
part) (emphasis added); see id ♦ at 780 
(Burger, C.J., agreeing generally with 
Justice Powell).

Similarly, in Teamsters the Court
found that Congress was concerned with

Title VII's impact on existing collec­
tively bargained seniority rights. It 
is apparent that § 703(h) was drafted 
with an eye toward meeting the earlier 
criticism on this issue with an ex-

39/ cont'd.
the seniority provision of § 703(h) was 
largely ignored in the legislative debates, 
and the statute .was characterized almost 
exclusively as a provision protecting job- 
related employment tests. See, e.g., 110
Cong. Rec. 15896 ( 1964 ) (remarks of Rep.
Celler); id. at 16002 (comparative analysis 
of House and Senate bills prepared by Rep. 
McCulloch and introduced by Sen. Dirksen).



54

plicit provision embodying the under­
standing and assurances of the Act's 
proponents: namely, that Title VII
would not outlaw such differences in 
treatment among employees as flowed 
from a bona fide seniority system that 
allowed for full exercise of seniority 
accumulated before the effective date 
of the Act. ...

In sum, the unmistakable purpose 
of § 703(h) was to make clear that the 
routine application of a bona fide seniority system would not be unlawful 
under Title VII. As the legislative 
history shows, this was the intended 
result even where the employer's pre- 
Act discrimination resulted in whites 
having greater existing seniority 
rights than Negroes. ... [T]he con­
gressional judgment was that Title 
VII should not outlaw the use of 
existing seniority lists and thereby 
destroy or water down the vested se­
niority rights of employees simply 
because their -employer had engaged in 
discrimination prior to the passage of 
the Act.

431 U.S. at 352-53 (emphasis added; cita­
tions and footnotes omitted).

Thus, as the Court concluded in both
\

Franks and Teamsters, the legislative his­
tory of § 703(h) demonstrates that this



55

section was designed to protect seniority 
rights acquired prior to the effective 
date of Title VII. In United Air Lines, 
Inc, v. Evans, 431 U.S. 553 (1977), the 
Court extended this protection to the 
operation of a pre-Act system that perpet­
uated the effects of a post-Act discrimi­
natory discharge which was not the subject

40/of a timely charge by the discriminatee.
Although the system gave present effect to
a past act of discrimination, the employer

was entitled to treat that past act as 
lawful after [plaintiff] failed to 
file a [timely] charge of discrimina­
tion .... A discriminatory act which 
is not made the basis for a timely 
charge is the legal equivalent of a 
discriminatory act which occurred 
before the statute was passed .... 
[Separately considered, it is merely 
an unfortunate event in history which 
has no present legal consequences.

Id. at 558.

40/ The Court also applied the Evans hold­ing in Teamsters, 431 U.S. at 348 n.30.



56

Contrary to the company's asser­
tion (Brief at 22-23), Evans does not read 
§ 703(h) as barring an attack on a system
which was adopted after the effective date

11/of Title VII. Rather, Evans holds that 
a bona fide seniority system in existence 
when Title VII took effect may be protected 
when it perpetuates either pre-Act discrim­
ination (which was not illegal) or post-Act 
discrimination which was not the subject, of- 
a timely charge (and therefore is the legal 
equivalent of pre-Act discrimination). But 
"[t]he statute does not foreclose attacks 
on the current operation of seniority 
systems which are subject to challenge as 
discriminatory." 431 U.S. at 560. Evans

41/ The Fourth Circuit en banc affirmed 
the district court's application of Evans 
to this case. (App. 146-47). The petition 
for certiorari did not present this issue 
for review.



57

does not discuss the legislative history of 
§ 703(h), and it says nothing about a 
seniority system which, although instituted 
after Title VII made it clear that discrim­
inatory employment practices were illegal, 
nevertheless perpetuated the effects of 
past intentional discrimination and had no 
adequate business justification. Regard­
less of when that past discrimination 
occurred, whether before or after the
effective date of Title VII, such a system

42/
is not protected by § 703(h).

42/ Petitioners also rely on statements in 
two later opinions that, "absent a discrim­
inatory purpose, the operation of a senior­
ity system cannot be an unlawful employment 
practice even if the system has some 
discriminatory consequences," Trans World 
Airlines, Inc, v. Hardison, 432 U.S. 63, 82 
( 1 977 ), and that " [s]ignificant freedom 
must be afforded employers and unions to 
create differing seniority systems. " 
California Brewers Ass'n v. Bryant, 444 
U.S. 598, 608 ( 1980). However, the issue
in Hardison was the extent of an employer's



58

In sum, the legislative history 
demonstrates that the language of § 703(h) 
was designed to incorporate the assurances 
of Title VII's sponsors that seniority 
rights accumulated by whites under pre­
existing bona fide systems would not be 
overriden by special seniority rights for 
minorities. While recognizing that such 
pre-Act seniority systems may "'operate to 
freeze the status quo of prior discrimina­
tory employment p r a c t i c e s C o n g r e s s  
nonetheless "extended a measure of immunity 
to them." Teamsters, 431 U.S. at 349-50,

42/ cont'd.
obligation under Title VII to accommodate 
the religious observances of its employees, 
432 U.S. at 66, and the issue in California 
Brewers was the definition of the term 
"seniority system" in § 703(h), 444 U.S. at 
601. See Argument II, infra. Neither 
opinion decides or even discusses the 
question presented here.



59

quoting Griggs v. Duke Power Co., 401 U.S. 
424, 430 ( 1971 ). However, nothing in the 
legislative history indicates that Congress 
had the same solicitude for seniority sys­
tems instituted after the effective date of 
Title VII, when employers and unions were 
on notice of their legal duty not to dis­
criminate. To the contrary, as this Court 
held in Franks, Congress intended to over­
ride post-Act seniority rights to the ex­
tent necessary to provide an effective 
remedy for discrimination.

The Historical Context and thePurpose of Title VII Confirm this
Court's Prior Analysis of the
Language and Legislative History
of § 703(h).
1. The Historical Context: The 

Lines of Progression Insti­
tuted in 1968 Were Superim­
posed on a Pre-Existing 
Structure of Intentional 
Discrimination and Segrega­
tion.

The language of Title VII must be read



60

not only in the context of its legislative 
history but also in "the historical context 
from which the Act arose." United Steel­
workers v. Weber, 443 U.S. at 201. The 
historical record undergirding Title VII 
shows that, for more than a hundred years 
after the Emancipation Proclamation, the 
American workplace was marked by deliberate 
practices designed to restrict black work­
ers to inferior positions and to exclude 
them altogether from desirable, skilled,

4 3 /high paying jobs. These practices were

43/ For a full discussion of the history 
of blacks in the American workplace, see 
S. Spero and A. Harris, The Black Worker 
(1931) (Atheneum ed. 1974 ). See also G. 
Myrdal, An American Dilemma at 1079-1124 
(1944) (Harper & Row ed. 1962). A thorough 
discussion of black workers during the 
period from World War I through World War 
II is found in R. Weaver, Negro Labor, A 
National Problem (1946), and- of blacks in 
labor unions in R. Marshall, The Negro 
and Organized Labor (1965); R. Marshall 
and V. Briggs, The Negro and Apprenticeship



61

nowhere more prevalent than in the tobacco
industry, in which black employment had its
origins in slavery. Both the history of the

44/
tobacco industry in the South and the

45/record in this case make it clear that 
the post-Title VII adoption of the "senior-

43/ cont'd.
(1967); and H. Northrup, Organized Labor 
and the Negro ( 1944 ). For more recent 
discussions, see H. Hill, Black Labor and 
the American Legal System: Race, Work and 
the Law (1977), and W. Gould, Black Workers 
in White Unions (1977).
44/ For a thorough discussion of the his­tory of blacks in the tobacco industry, see 
H. Northrup, The Negro in the Tobacco In­
dustry (1970) (hereinafter "Northrup"); 
G. Starnes and J. Hamm, Some Phases of 
Labor Relations in Virginia at 36-70 (1934) 
(hereinafter "Starnes and Hamm"). See also 
R. Marshall, Labor in the South at 215-17 
(1967); H. Northrup, Organized Labor and 
the Negro at 102-18; S. Spero and A. Kar­
ris, The Black Worker at 322-23; Johnson, 
The Conflict of Caste and Class in an Amer­
ican Industry, 42 Am. J. Soc. 55 (1936).
45/ See pp. 8-27, supra.



62

ity system" at issue here perpetuated overt 
racial bars imposed by the company and the 
union in the past.

Blacks have worked in the tobacco 
industry since its inception in colonial 
Virginia. H. Northrup, The Negro in the 
Tobacco Industry at 1 (1970) (hereinafter 
"Northrup"); G. Starnes and J. Hamm, Some 
Phases of Labor Relations in Virginia at 
37-39 (1934) (hereinafter "Starnes and 
Hamm"). Through the first half the 19th 
century, when tobacco manufacturing was 
concentrated in Virginia and North Caro­
lina, the industry's labor force was com­
posed almost exclusively of black slaves. 
Northrup at 2; Starnes and Hamm at 37; 
Johnson, The Conflict of Caste and Class in 
an American Industry, 42 Am. J. Soc. 55, 
56-57 (1936) (hereinafter "Johnson"). Dur­
ing this period, Richmond, Virginia, was



63

the center of the "slave for hire" market, 
in which masters hired their slaves out to 
the tobacco manufacturers. Northrup at 
18-19. See also Starnes and Hamm at 37-39.

For two decades after the Civil War, 
blacks continued to hold most of the non- 
supervisory jobs in tobacco factories. In 
the 1880s, however, when cigarette machines 
were introduced, the companies began to 
remove black hand rollers from fabrication 
jobs and replaced them with white machine 
operators, most of whom were women. White 
males were hired as mechanics and set-up 
men. Blacks remained in the prefabrication 
jobs, and white males remained in the su­
pervisory and white collar jobs. Northrup 
at 3, 21-22; Johnson, 42 Am. J. Soc. at 60. 
See Starnes and Hamm at 62. By 1900, the 
number of black workers had been substan­
tially reduced, and the rigid pattern of



64

segregation which thereafter characterized 
the industry was firmly in place. Northrup 
at 21. This pattern included not only 
occupational but also physical segregation:

I

blacks were confined to the lowest paying 
jobs with the poorest working conditions, 
usually in separate buildings or at least 
on separate floors from the white depart­
ments. Id. at 3-5, 22; Johnson, 42 Am. J. 
Soc. at 59-61. ’

Blacks continued to hold, more than 60 
percent of the jobs in the tobacco indus­
try until the 1930s. Northrup at 22-26. 
See Starnes and Hamm at 36-37, 58-62, 66- 
67. Then, however, mechanization began to 
take more and more black jobs. Despite 
their long seniority in the industry, the 
displaced black workers were not permitted 
to move into segregated white jobs. North­
rup at 26. According to a contemporary



65

description of this process,
The progressive substitution of 

machinery for hand processes has cre­
ated new tasks and destroyed old and 
honorable skills. With each advance 
in machinery there has been an in­
crease in white male and female labor. Lacking the protection of that caste 
sentiment which preserved to the Negro 
jobs in which he once seemed to have 
some sort of vested interest, these 
workers have found themselves holding 
only those jobs which were "secured" 
to them by low wages, disagreeable 
dust, and by tasks regarded as too 
heavy for native-born white Americans.

Johnson, 42 Am. J. Soc. at 58. See also id. 
at 64-65. Blacks were left with "'the dis­
agreeable, unskilled labor which because 
of its dusty, dirty and unsanitary char­
acter is distasteful to the whites.'" 
Starnes and Hamm at 37, quoting L. Greene 
and C. Woodson, The Negro Wage Earner at 
285 (1930).

The Tobacco Workers International 
Union, which has represented employees at 
most of the major tobacco companies (in-



66

eluding American Tobacco) since the 1930s,
organized racially segregated locals which
institutionalized the existing pattern of
segregated jobs and facilitated the process
of reducing the number of blacks in
the work force. Northrup at 33-35; R.
Marshall, Labor in the South at 216-17 

46/(1967). The exclusionary policies
of the craft unions operated as an addi-

.46/ "In some areas, such as Durham, there 
was good cooperation among Negro and white 
leadership. In Richmond, however, the 
union movement affiliated with the American 
Federation of Labor was at first quite 
antagonistic to Negroes." Northrup at 35. 
Until it was challenged in 1937 by a rival union, the Tobacco Workers International 
Union (TWIU) in Richmond did not attempt 
to organize black workers for 20 years. H. 
Northrup, Organized Labor and the Negro at 
114. Cf̂ . S. Spero and A. Harris, The Black 
Worker at 322—23. When the TWIU finally 
sought to represent blacks at the American 
Tobacco Company's smoking tobacco plant in 
Richmond, it proposed segregated bargaining 
units. Northrup, Organized Labor and the 
Negro at 114-15. The National Labor Re­
lations Board rejected this proposal and 
certified a single unit for both races.



67

tional barrier to opportunities for blacks.
47/

Northrup at 38. The unions reinforced 
the segregated pattern established by the 
employers, and the Tobacco Workers Union 
"represented its white members well to the 
detriment of, and at the expense of, its 
Negro members." Id. at 39. See R. Mar-

46/ cont'd.
See Matter of American Tobacco Co. , 9 NLRB579 (1938); 10 NLRB 1171 (1939). Neverthe­
less, the three white locals at American 
Tobacco's Durham, Reidsville, and Richmond 
plants thereafter jointly negotiated one 
collective bargaining agreement with 
management, while each of the three black 
locals made separate agreements. Professor 
Northrup observed in 1944 that, while "the 
white leaders usually assist the Negroes in 
their negotiations, ... the co-operation 
between the white and colored locals in the 
American Tobacco plants is decidedly 
limited in scope." Northrup, Organized 
Labor and the Negro at 113. See also R. 
Marshall, Labor in the South at 217.
47/ "Judicial findings of exclusion from crafts on racial grounds are so numerous as 
to make such exclusion a proper subject for 
judicial notice. " United Steelworkers v. 
Weber, 443 U.S. at 198 n.l.



68

shall, Labor in the South at 216-17. While 
cigarette employment was expanding in 
mechanized jobs open almost exclusively to 
whites, black members of the Tobacco 
Workers Union were laid off with little or 
no union opposition and were replaced by 
machines operated by whites. Northrup at 
39. As a result of this process, black 
workers —  who had monopolized employment 
in the tobacco industry from colonial times 
to the late 19th century, and who had then 
held a clear majority of the industry's 
jobs until the 1930s —  found in 1960 that 
they held only 25 percent of the jobs. 
Their sharply reduced share of the jobs, 
moreover, continued to be rigidly segre­
gated. I_d. at 33. Government pressure in 
the 1960s brought about some changes in 
overt segregationist policies, but by that 
time.the continuing impact of automation 
and the declining demand for tobacco



69

products had severely limited job opportu—
48/nities in the industry. Id. at 40-41.

In the seminal case of Quarles v. 
Philip Morris, Inc.. 279 F. Supp. 505 (E.D. 
Va. 1968), Judge Butzner reviewed the 
history of segregation and racial discrimi­
nation at a typical southern tobacco 
company and the use of restrictive depart­
mental transfer and seniority practices to
perpetuate this history. 279 F. Supp.* 

49/
at 510-14. The court in Quarles found

£8/ For example, in response to pressure 
from President Kennedy's Committee on Equal 
Employment Opportunity to open up all de­
partments to all races, the tobacco com­
panies simply tacked their black seniority 
lists onto the bottom of the lists for the 
white departments, and vice versa. Because 
there were few openings of any kind, this 
limited change in form resulted in little 
or no improvement in the substance of 
black opportunities for upward movement. Northrup at 40-41.
49/ The practices at Philip Morris were 
essentially the same as those followed by 
other tobacco manufacturers, Northrup at 
78, including the American Tobacco Company, id. at 64-66.



70

that, although there had been no discrimi­
nation in hiring or initial assignment 
since 1966, restrictive departmental 
transfer policies —  including forfeiture 
of accrued departmental seniority rights 
upon transfer —  imposed- "restrictions 
upon the present opportunities for Negroes 
result[ing] from the racial pattern of the 
company's employment practices prior to 
January 1, 1966." 279 F. Supp. at 513.
Based on a review of the legislative 
history concerning § 703(h) and Title VII's 
application to pre-Act seniority systems, 
the court concluded that "Congress did not 
intend to freeze an entire generation of 
Negro employees into discriminatory 
patterns that existed before the act." Id. 
at 516.

The court in Quarles found that the 
seniority system at Philip Morris had its 
genesis in the racially discriminatory



71

employment pattern typical of the tobacco 
industry, and that present differences 
in treatment under the system were the 
result of intentional discrimination 
against blacks. The court therefore held 
that the seniority system was not a bona 
fide system protected by § 703(h). Id. at 
516-18. Since the system perpetuated past 
discrimination and was not justified by 
business necessity, it violated Title VII:
" [T]he restrictive departmental transfer 
and seniority provisions of the collective 
bargaining agreement are intentional, 
unlawful employment practices because they 
are superimposed on a departmental struc­
ture that was organized on a racially

50/segregated basis." Id. at 510.

50/ In Teamsters this Court held that an Otherwise neutral, legitimate seniority 
system does not become unlawful under Title 
VII simply because it may perpetuate pre-



72

The record in the present case demon­
strates that the industry-wide pattern of 
intentional discrimination and segregation 
prevailed at American Tobacco's facilities 
in Richmond. See pp. 8-27, supra. Like 
the restrictive departmental transfer and 
seniority provisions in Quarles, the lines 
of progression in the present case were 
"superimposed on a departmental structure 
that was organized on a racially segregated 
basis." Quarles v. Philip Morris, 279 F.. 
Supp. at 510. The company and the union 
thus seek to apply § 703(h) to a system

50/ cont'd.

Act discrimination." 431 U.S. at 353-54. 
The Court noted, however, that Quarles and 
the cases that followed it were consistent 
with Teamsters insofar as they held that "a 
seniority system that perpetuates the 
effects of pre-Act discrimination cannot be 
bona fide if an intent to discriminate 
entered into its very adoption." 431 U.S. 
at 346 n.28.



73

which they imposed after the effective date 
of Title VII on their own pre-existing 
structure of intentional discrimination and 
segregation. It is within this context, as 
well as the larger historical context of 
the racial practices of the tobacco 
industry as a whole, that the statutory 
language, the legislative history, and the 
judicial decisions construing § 703(h) must 
be considered.

2. The Purpose of Title VII: 
Section 703(h) Provides a 
Narrow Exemption from Title 
VII 1 s Broad Prohibition 
of Discriminatory Employment 
Practices.

The Civil Rights Act of 1964 was the 
first comprehensive federal legislation 
ever to address the pervasive problem of 
discrimination against blacks in modern 
American society. See M. Sovern, Legal
Restraints on Racial Discrimination in Em-



74
\A

ployment 8 (1966). Extensive hearings had
focused the attention of Congress on the
adverse social and economic consequences
of discrimination against blacks in employ-11/ment and other fields, and when the
House Judiciary Committee issued its report
on the bill which became the Civil Rights
Act of 1964, it clearly stated that a
primary objective' of the Act was to
eliminate the effects of discrimination
against black citizens:

In various regions of the country 
there is discrimination against some 
minority groups. Most glaring, 
however, is the discrimination against

51 / See, e.g., Hearings on Equal Employ­
ment Opportunity Before the General Sub- 
comm. on Labor of the House Comm, on Educa­
tion and Labor, 88th Cong., 1st Sess. 3, 
12-15, 47-48, 53-55, 61-63 (1963); Hearings 
on Civil Rights Before Subcomm. No. 5 of 
the House Comm, on the Judiciary, 88th 
Cong., 1st Sess. 2300-03 (1963); Hearings 
on Equal Employment Opportunity Before the 
Subcomm. on Employment and Manpower of the 
Senate Comm, on Labor and Public Welfare, 
88th Cong., 1st Sess. 116-17, 321-29, 
426-30, 449-52, 492-94 (1963).



75

Negroes which exists throughout our 
Nation. Today, more than 100 years 
after their formal emancipation, 
Negroes, who make up over 10 percent 
of our population, are by virtue of 
one or another type of discrimination not accorded the rights, privileges, 
and opportunities which are considered 
to be, and must be, the birthright of all citizens.

*  *  *

No bill can or should lay claim 
to eliminating all of the causes and 
consequences of racial and other types 
of discrimination against minori­
ties. ...

It is, however, possible and 
necessary for the Congress to enact 
legislation which prohibits and 
provides the means of terminating the 
most serious types of discrimina­
tion. ...

H.R. Rep. No. 914, 88th Cong., 1st Sess. 
(1963), reprinted in [1964] U.S. Code Cong. 
& Ad. News 2391, 2393.

In United Steelworkers v. Weber, this 
Court reviewed the legislative history and 
concluded that "Congress' primary concern 
in enacting the prohibition against racial 
discrimination in Title VII of the Civil



76

Rights Act of 1964 was with 'the plight of 
the Negro in our economy."' 443 U.S. at 
202, quoting 110 Cong. Rec. 6548 (remarks 
of Sen. Humphrey). Congress recognized 
that blacks were largely relegated to 
unskilled and semi-skilled jobs, that 
because of automation the number of such 
jobs was rapidly decreasing, and that since 
the 1940s the relative position of the 
black worker had steadily worsened. Id. 
This pattern was especially pronounced in 
the tobacco industry, where black workers 
were systematically replaced by white-oper­
ated machines, with little or no opposi­
tion from the white-dominated unions. See 
pp. 63-68, supra. Congress further recog­
nized that, unless this trend were re­
versed, the goal of the Civil Rights Act —  
"the integration of blacks into the main­
stream of American society" —  could not be 
achieved. 443 U.S. at 202-03. Therefore,



77

"it was clear to Congress that 'the crux of 
the problem [was] to open employment 
opportunities for Negroes in occupations 
which have been traditionally closed to 
them,' 110 Cong. Rec. 6548 (remarks of Sen. 
Humphrey), and it was to this problem that 
Title VII 's prohibition against racial 
discrimination in employment was primarily 
addressed." Id. at 203.

This problem was especially acute in 
the tobacco industry, see pp. 63-68, supra, 
and Congress intended to take effective 
action to correct it. The enactment of 
Title VII was "triggered by a Nation's 
concern over centuries of racial injustice 
and [was] intended to improve the lot of 
those who had 'been excluded from the 
American dream for so long'...." United 
Steelworkers v. Weber, 443 U.S. at 204, 
quoting 110 Cong. Rec. 6552 (1964) (remarks 
of Sen. Humphrey). As this Court has



78

consistently held, "in enacting Title 
VII of the Civil Rights Act of 1964, 
Congress intended to prohibit all prac­
tices in whatever form which create in­
equality in employment opportunity due to 
discrimination on the basis of race, reli­
gion, sex, or national origin." Franks v. 
Bowman Transportation Co., 424 U.S. at 763
and cases cited therein. See also County 
of Washington v. Gunther, 49 U.S.L.W. 4623, 
4628 (1981). The sweeping terms of the
statutory prohibition of discrimination 
reflect the congressional purpose: it is 
unlawful "to fail —  to hire or to dis­
charge ... or otherwise to discriminate 
... with respect to ... compensation, 
terms, conditions, or privileges of employ­
ment," or "to limit, segregate, or classify 
• • • in any way that would deprive or tend 
to deprive any individual of employment 
opportunities or otherwise adversely affect



79

his status." 42 U.S.C. § 2000e-2(a) (em­
phasis added). "As Congress itself has 
indicated, a 'broad approach' to the 
definition of equal employment opportunity 
is essential to overcoming and undoing 
the effect of discrimination." County of 
Washington v. Gunther, 49 U.S.L.W. at 4628, 
quoting S. Rep. No. 867, 88th Cong., 2d 
Sess. 12 (1964).

In § 703(h), Congress provided a nar­
row exemption from this broad prohibition 
of discriminatory practices. As the Court 
stated in Teamsters, this provision "does 
not immunize all seniority systems. It 
refers only to 'bona fide' systems, and 
a proviso requires that any differences in 
treatment not be 'the result of an inten­
tion to discriminate because of race....'" 
431 U.S. at 353. In California Brewers 
Association v. Bryant, 444 U.S. 598 (1980),
the Court reiterated its view that § 703(h)



80

must not "be given a scope that risks 
swallowing up Title VII's otherwise broad 
prohibition of 'practices, procedures and 
tests' that disproportionately affect 
members of those groups that the Act 
protects." I_d. at 608.

The Court's interpretation of § 703(h) 
thus accords with the longstanding prin­
ciple of statutory construction that a 
remedial statute should "be given a liberal 
interpretation ... [and] exemptions from 
its sweep should be narrowed and limited to 
effect the remedy intended." Piedmont & 
Northern Railroad Co. v. ICC, 286 U.S. 299, 
311-12 (1932). See also Group Life and
Health Insurance Co. v. Royal Drug Co., 440 
U.S. 205, 231 (1979); Abbott Laboratories
v. Portland Retail Druggists Association, 
425 U.S. 1, 12 (1976); Payton v. Rowe, 391 
U.S. 54, 65 (1968). Like the general prohi­
bitions of discrimination contained in



81

§§ 703(a) and (d), the exception provided 
by § 703 (h) "must ... be read against the 
background of the legislative history of 
Title VII and the historical context from 
which the Act arose," United Steelworkers 
v. Weber, 443 U.S. at 201, and it must be 
interpreted in a manner which does not 
"'bring about an end completely at variance 
with the purpose of the statute'...." Id. 
at 202, quoting United States v. Public 
Utilities Commission, 345 U.S. 295, 315
( 1 953 ). In view of the broad approach 
adopted by Congress, the Court "must ... 
avoid interpretations of Title VII that 
deprive victims of discrimination of a 
remedy, without clear congressional man­
date." County of Washington v. Gunther, 
49 U.S.L.W. at 4628.

The importance of seniority rights in 
the modern workplace supports the proper



82

construction of § 703(h) as a narrow
exception which should not be allowed to 
defeat the fundamental purpose of Title 
VII. As the Court stated in Franks:

Seniority systems and the enti­tlements conferred by credits earned 
thereunder are of vast and increasing 
importance in the economic employment 
system of this Nation. ... Seniority 
principles are increasingly used to 
allocate entitlements to scarce 
benefits among competing employees 
("competitive status" seniority) and 
to compute noncompetitive benefits 
earned under the contract of employ­
ment ("benefit" seniority). ... We 
have already said about "competitive 
status" seniority that it. "has become 
of overriding importance, and one of 
its major functions is to determine 
who gets or who keeps an available 

% job." ... "More than any other pro­
vision of the collective [-bargain­
ing] agreement ... seniority affects 
the economic security of the indi­
vidual employee covered by its terms."

424 U.S. at 766 (citations omitted). See 
also Cooper and Sobol, Seniority and Test­
ing Under Fair Employment Laws: A General
Approach To Objective Criteria of Hiring



83

and Promotion, 82 Harv. L. Rev. 1598, 1601- 
07 (1969).

This Court recognized in Franks that, 
because seniority rights are so important, 
the victims of illegal racial discrimina­
tion are presumptively entitled to awards 
of retroactive seniority which will, 
insofar as possible, restore them to the 
positions they would have held in the 
absence of discrimination. Seniority 
relief therefore may be denied "'only for 
reasons which, if applied generally, 
would not frustrate the central statutory 
purposes of eradicating discrimination 
throughout the economy and making persons 
whole for injuries suffered through past 
discrimination.'" 424 U.S. at 771, 
quoting Albemarle Paper Co. v. Moody, 422 
U.S. 405, 421 (1975). For the same reasons, 
§ 703(h) should be interpreted in a manner 
which, while recognizing the intent of Con-



84i

gress to protect bona fide pre-Act senior­
ity systems from liability, does not 
undermine the fundamental purposes of Title 
VII. Section 703(h) was not intended to be 
an instrument for depriving black workers 
of the seniority rights which are essential 
if they are to achieve their rightful place 
in the mainstream of American society.

D. The Policies Underlying Title VII
Support The Conclusion that
§ 703(h) Does Not Immunize Post-
Act Seniority Systems Which
Perpetuate Intentional Discrimi-
nation and Segregation.

Strong public policies support both 
collective bargaining and equal employment 
opportunity. In the National Labor Rela­
tions Act, Congress expressed a national 
labor policy "'encouraging the practice 
and procedure of collective bargaining.'" 
Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50, 62



85

(1975), quoting 29 U.S.C. § 151. In
the Civil Rights Act of 1964, "Congress 
indicated that it considered the policy 
against discrimination to be of the 'high­
est priority.'" Alexander v. Gardner-Den- 
ver Co. , 415 U.S. 36, 47 ( 1974 ), quoting
Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400, 402 (1968).

The resolution of a potential conflict 
between these policies depends upon the 
intent of Congress as to which policy 
should prevail in a particular factual 
context. See Alexander v. Gardner-Denver 
Co. , 415 U.S. at 60 n.21. For example, in 
Trans World Airlines v. Hardison, where 
there was no evidence of past discrimina­
tion that required a remedy, the Court 
determined that the policies supporting 
both collective bargaining and equal 
opportunity weighed against the abrogation 
of the seniority rights of some employees



86

in order to accommodate the religious needs 
of others. 432 U.S. at 79 n.12. On the 
other hand, in Franks v. Bowman Transporta­
tion Co. , the Court concluded that the 
congressional policies outlawing discrimi­
nation and requiring a "make whole" remedy 
outweighed the policy favoring collective 
bargaining. The Court held that, under 
Title VII, the victims of unlawful discrim­
ination ordinarily are entitled to retro­
active seniority even though such relief 
diminishes the collectively bargained 
seniority rights of other, arguably inno­
cent, employees. 424 U.S. at 763-66, 
773-79.

In the factual and historical context 
presented here, the congressional policy 
requiring equal employment opportunity 
outweighs any policy which might be 
served by authorizing employers and unions 
to adopt new seniority systems which



87

have no business justification and which 
perpetuate their own intentional discrimi­
nation.

American Tobacco's Richmond and 
Virginia branches were operated on a 
strictly segregated basis until 1963. As 
in the rest of the industry, blacks were 
assigned to the prefabrication departments, 
while fabrication department jobs, which 
paid higher wages and had better working 
conditions, were reserved for whites. See 
pp. 8-11, supra. Although this system of 
overt segregation was modified in 1963, 
racially motivated discrimination con­
tinued. Until 1968, black employees were 
excluded from white jobs by means of 
intentionally discriminatory promotional 
policies. Under the guise of evaluating 
"interest" in vacancies and "qualifica­
tions" for promotions, the virtually 
all-white supervisory force continued to



88

restrict black employees to the histori­
cally "black" jobs. See pp. 11-16, supra. 

It was against this background that
the company and the union instituted the

52/
lines of progression. Under the new sys­
tem, when a vacancy occurred in a top job 
in a line of progression, only employees 
who had held a lower job in that line were 
eligible to bid for the vacancy. Regard-

52/ This case does not present the situa­tion, suggested by the union, of a pre-Act 
seniority system which might have been 
protected by § 703(h) but then was modified 
after the effective date of Title VII in a 
manner which increased employment opportu­
nities for minorities. Union Brief at 
28-29; see Company Brief at 30-31. In the 
present case, the post-Act line-of-progres- 
sion system did not replace or modify a 
pre-existing bona fide seniority system. 
Instead, it replaced an intentionally 
discriminatory promotional selection policy 
which was never protected by § 703(h). Cf. 
California Brewers Ass 'n v. Bryant, 44 4 
U.S. at 608-09. See Argument II, infra. 
Moreover, the line-of-progression system, 
far from expanding opportunities for 
minorities, perpetuated the effects of 
prior intentional discrimination. See 
pp. 17-27, supra.



89

less of their seniority, skill, and 
ability, employees outside the lines of 
progression were precluded from bidding for 
jobs at the top of the lines. The new 
system, superimposed on the rigidly segre­
gated employment pattern of the past, 
effectively denied black employees the 
opportunity to advance to traditionally 
white jobs. As the Fourth Circuit stated:

Most of these jobs [in the lines of 
progression] were in the fabrication 
departments. Since black employees 
had been largely excluded from the 
fabrication departments, they held few 
jobs in most of these lines and could 
not advance despite their seniority. In this respect, the lines of progres­
sion perpetuated the effects of past 
discrimination in a manner similar to 
the formerly segregated departmental 
seniority rosters.

(App. 78-79). See pp. 17-27, s upra.
Thus, the system of overt job and 

departmental segregation was replaced in 
1963 by a system of intentional discrimina­
tion in promotions, which in turn was re-

\

placed in 1968 by the line-of-progression



90

system. The lines of progression preserved
the advantageous position white employees 
had gained as a result of the prior segre­
gation and intentional discrimination. A 
combined total of more than 80 percent of 
the white employees at the Virginia and
Richmond branches hold jobs in the seven

53/white lines of progression. As a re­
sult of the prior practices o? segrega­
tion and discrimination by the company and 
the union, these white employees are now 
eligible for promotion to the high paying
jobs at the top of the white lines of pro- 

54/
gression. Conversely, most black em-

53/ In 1973, there were 702 white hourly 
paid, non-craft employees at the Virginia 
and Richmond -branches combined. Approxim­
ately 585, or 83 percent, of these white 
employees held jobs in the seven white 
lines of progression. (Ex. App. 158-62).
54/ The highest paid hourly non-craft jobs 
at both branches are at the top of the 
seven white lines of progression (Ex. App. 
155-62).



91

ployees are now denied access to the top 
jobs in these lines because they were 
excluded from the lower jobs in the past on 
the basis of race. Consequently, by 1973, 
after the line-of-progression system had 
been in effect for five years, the top jobs 
in the historically white lines were held 
by 120 white employees and by only one 
black employee. (Ex. App. 158-62).

The cate before the Court therefore 
concerns the post-Act adoption of a line- 
of-progression system which has perpetuated 
past intentional discrimination by the 
employer and union involved. It does not 
concern the post-Act adoption of a senior­
ity system which has a discriminatory 
impact on minorities or women for some 
other reason —  e.g., because women have 
only recently entered the labor market in 
certain industries and therefore have 
accrued little seniority, or because



92

minorities have only recently moved into 
the geographical area from which an employ­
er draws its work force and therefore 
have not been employed as long as most 
whites. It therefore is unnecessary for 
the Court to decide whether, in such 
circumstances, seniority systems adopted 
after the effective date of Title VII may 
be protected by § 703(h) despite their
discriminatory impact. Such systems 
arguably may be justified by a "national 
labor policy encouraging . . . free collec­
tive bargaining and recognizing the impor­
tance, diversity and changing nature of 
seniority practices." Company Brief at 29; 
see also Union Brief at 29-31. It is not 
"national labor policy," however, to 
encourage employers and unions to adopt new 
seniority systems which perpetuate their 
own intentional discrimination against 
black workers. It manifestly is not



93

"national labor policy" to condone such
conduct where, as here, the new system is
not necessary to the safe and efficient

55/operation of the business in question.
The Court "has long held that employee 

expectations arising from a seniority 
system agreement may be modified by stat­
utes furthering a strong public policy 
interest." Franks, 424 U.S. at 778 (foot­
note omitted) and cases cited therein. Cf. 
Steele v. Louisville & Nashville Railroad 
Co., 323 U.S. 192 ( 1944). In the present 
case, as in Franks, the strong public 
policy interest in terminating the effects

55/ As noted by the company, the Griqqs 
\ standard of business necessity is "exact­

ing. " Company Brief at 27 n.34. It is 
not, however, fatal to every seniority 

* system to which it is applied. Indeed, in
this very case the district court held that 
three of the nine lines of progression were 
justified by business necessity and were 
therefore lawful despite their discrimina­tory impact. (App. 31-32).



94

of racial discrimination is paramount. 
This policy confirms the conclusion that 
Congress did not intend _to immunize post- 
Act seniority systems which perpetuate 
prior intentional discrimination.

Contrary to the company's assertion, 
in the circumstances of this case there 
is no conflict whatsoever between the 
Fourth Circuit's interpretation of § 703(h) 
and the principles of affirmative action 
set forth in United Steelworkers v. Weber. 
Company Brief at 30-32; see Union Brief at

5 6 /28-29. The lines of progression es-

56/ The union hypothesizes a case in which 
a pre-Act system based on job seniority is 
converted after the effective date of Title 
VII to a departmental seniority system. 
The union argues that such post-Act modifi­
cations of seniority systems should not be 
discouraged because they "would broaden 
mobility, and thus benefit pre-Act discrim- 
inatees...." Union Brief at 28. In the 
present case, however, the system was not 
"broadened"; to the contrary, it was 
narrowed from an ostensible branch-wide



95

tablished in 1968 were not "designed 
to break down old patterns of racial 
segregation and hierarchy," nor were they 
intended "to eliminate a manifest racial 
imbalance." Weber, 443 U.S. at 208. To 
the contrary, the 1ine-of-progress ion 
system preserved the favored positions 
gained by white employees and perpetuated 
the disadvantages suffered by black employ­
ees as a result of decades of overt segre­
gation and intentional discrimination by 
the company and the union. In effect, the 
company suggests that, by replacing its

56/ cont'd.
system to a system which restricted advancement to those within the lines of 
progression. See pp. 11-27, supra. As is 
implicit in the union's hypothetical ex­
ample, the change in the present case was 
detrimental to. the victims of discrimina­
tion because it perpetuated the effects of 
segregated job assignments and intention­
ally discriminatory promotional policies.



96

overtly discriminatory system with a
facially neutral system which perpetuated
the effects of -its prior intentional
discrimination, it implemented an "affirma-

57/
tive action plan." In the factual con­
text of this case, the imposition of the 
unnecessary line-of-progression system is 
no more deserving of protection from a 
Title VII challenge than the imposition of 
a nori-job related test or educational re­
quirement for entry into jobs which were

57/ The company and the union did not 
argue or present evidence in the courts 
below that the line-of-progression system 
was an affirmative action plan. Nor 
do they describe in their briefs in this 
Court how the system qualifies as "affirma­
tive action" or, more basically, how the 
system does not simply perpetuate the 
effects of intentional discrimination. In 
Weber the Court stressed "the narrowness of 
[the] inquiry” regarding affirmative action 
plans. 443 U.S. at 200. The petitioners' 
invitation to discuss aspects of affirma­
tive action which are not presented by this 
case should be declined.



97

previously reserved for whites. See Griggs 
v. Duke Power Co., 401 U.S. at 428-33.

The relevant legislative materials, 
the prior decisions of this Court, and the 
history and purpose of Title VII all 
demonstrate that § 703(h) was not intended 
to immunize post-Act seniority systems 
which perpetuate intentional discrimina­
tion. In the circumstances of this case, 
the Fourth Circuit correctly held that the 
policy favoring collectively bargained 
seniority systems must give way to the 
paramount policy mandating equal oppor­
tunity in employment. Its judgment should 
be affirmed.

II. THE LINES OF PROGRESSION ARE NOT PART OF A "SENIORITY SYSTEM" 
WITHIN THE MEANING OF § 703(h).

The narrow exemption provided by 
§ 703(h) applies to "bona fide seniority



98

-- system[s]." 42 U.S.C. § 2000e-2(h).
The majority of the panel below held that 
the lines of progression are not part of a 
"seniority system" and therefore are not 
protected by § 703(h). (App. 116). On 
rehearing, the majority of the en banc 
court recognized that there was "consider­
able support" for this "possible alterna­
tive basis for decision," but they found it 
unnecessary to decide the question because 
of their holding that § 703(h) has no 
application to post-Title VII seniority 
systems which perpetuate prior discrimina­
tion. (App. 142-43 n.3). The members of 
the panel majority concurred in this part 
of the eri banc court's opinion but also 
reaffirmed their prior panel opinion. 
(App. 155). Respondents submit that this 
alternative basis for the judgment below is 
dispositive.



99

As the Court stated in California 
Brewers Association v. Bryant, "Title VII 
does not define the term 'seniority sys­
tem, '* and no comprehensive definition of 
the phrase emerges from the legislative 
history of § 703 (h)." 444 U.S. at 605
(footnote omitted). The Court, however, 
has identified certain "core concepts of 
'seniority'" as that term is used in 
§ 703(h):

In the area of labor rela­
tions, "seniority" is a term 
that connotes length of employ­
ment. A "seniority system" is a 
scheme that, alone or in tandem 
with non-"seniority" criteria, 
allots to employees ever improv­
ing employment rights and bene­
fits as their relevant lengths of 
pertinent employment increase. 
Onlike other methods of allocat­
ing employment benefits and 
opportunities, such as subjective 
evaluations or educational re­
quirements, the principal feature 
of any and every "seniority 
system" is that preferential 
treatment is dispensed on the 
basis of some measure of time 
served in employment.



100

Id. at 605-06 (footnotes omitted).
As the Court noted in Teamsters, se­

niority may be "measured in a number of 
ways, including length of time with the 
employer, in a particular plant, in a 
department, in a job, or in a line of
progression --- " 431 U.S. at 355 n.41.
Thus, a system which allocates jobs or 
benefits on the basis of time served in
a line of progression is a "seniority sys-

58/tern" which may be protected by § 703(h).
The lines of progression at issue here, 
however, do not allocate jobs or benefits 
on the basis of any measure of time served 
with the employer. To the contrary, these 
lines insulate the highest paid jobs at 
both branches from the operation of the

58/ For a decision applying § 703(h) to a 
true line-of-progression seniority system, 
see Myers v. Gilman Paper Co., 25 FEP Cases 468 (S.D. Ga. 1981 ).



101

seniority system. When a vacancy occurs in 
one of the top jobs in a line of progres­
sion, only employees who have held a lower 
job in that line are eligible to bid on the 
vacancy. (App. 21-22). Length of time 
served in the line of progression is not a 
factor. Neither is length of time served in 
the lower job. Instead, the lines of pro­
gression impose a requirement of service in 
a lower job. This prior service require­
ment operates as a prerequisite for the 
application of the seniority system. Among 
the limited group of employees who satisfy 
this prerequisite and are therefore eligi­
ble to bid on a vacancy, branch seniority 
is applied to determine the successful 
bidder. Only the fact of service in the 
lower job is of any importance; the amount 
of time served in either the lower job or 
the line of progression has no effect



102

whatsoever. See p. 21 n.25, supra.
The lines of progression in the 

present case therefore have nothing to do 
with "seniority" as that term was defined 
in California Brewers. In that case the 
Court held that a threshold requirement 
of 45 weeks of service as a temporary em­
ployee for entry into a permanent employee 
seniority track was a component of a 
"seniority system" within the meaning of 
§ 703(h). The Court stated as follows:

The 45-week rule does not depart significantly from com­
monly accepted concepts of "se­
niority. " The rule is not an 
educational standard, an apti­
tude or physical test, or a 
standard that gives effect to 
subjectivity. Unlike such cri­
teria, but like any "seniority" 
rule, the 45-week requirement 
focuses on length of employment.

Moreover, the rule does not distort the operation of the 
basic system established by the 
Agreement, which rewards employ­
ment longevity with heightened 
benefits.



103

444 U.S. at 609-10.
Here, by contrast, eligibility to bid 

On a job at the top of a line of progres­
sion has nothing to do with an employee's 
seniority "in a particular plant, in a 
department, in a job, or in a line of 
progression...." Teamsters, 431 U.S. at
355 n.41. Instead, eligibility for promo­
tion is determined by mere service in a 
lower job classification, without any 
reference whatsoever to the amount of time 
served in that classification. In this 
respect the 1ine-of-progression eligibility 
requirement is identical to any other 
non-seniority barrier to advancement, such 
as an aptitude test or a height require­
ment. Because such requirements do not 
"focus ... on length of employment," 
California Brewers, 444 U.S. at 610, they 
"depart significantly from commonly ac-

I  tfcepted concepts of 'seniority. Id. at



609. As the Court recognized in California
Brewers, such non-seniority requirements 
are not protected by § 703(h):

A co1lective-bargaining
agreement could, for instance, 
provide that transfers and pro­
motions are to be determined by a 
mix of seniority and other fac­
tors, such as aptitude tests 
and height requirements. That 
the "seniority" aspects of such 
a scheme of transfer and promo­
tion might be covered by § 703(h) 
does not mean that the aptitude tests or the height requirements 
would also be so covered.

444 U.S. at 606 n.13.
Moreover, the eligibility requirements 

imposed by the lines of progression here 
"distort the operation of the basic 
system ...." Ic3. at 610. Under the basic 
branch seniority system in the present 
case, nearly 90 percent of the jobs are now 
open for bidding by all employees and are



59/
awarded to the senior bidder. The top
jobs in the lines of progression are

6_0/excluded from this system. To exer­
cise his or her seniority in bidding on 
one of these jobs at the top of the pay 
scale, an employee must first satisfy the 
non-seniority eligibility requirement. 
This requirement is not protected by 
§ 703(h). As the Court cautioned in
California Brewers, the exception provided 
by § 703(h) should not

be given a scope that risks swallowing up Title VII's other-

59/ In 1973, there were 952 hourly paid non-craft production jobs at the Richmond 
and Virginia branches combined. Approxi­
mately 828 of these jobs, including the 
bottom jobs in the lines of progression, 
are subject to the posting and bidding 
system, under which vacancies are awarded 
on the basis of branch seniority. (Ex. 
App. 158-62).
60/ In 1973, there were 121 employees in "Jobs at the top of the white lines of 
progression: 120 whites and one black.
There were three black employees in jobs at 
the top of the black lines. (Ex. App. 
158-62 ).



106

wise broad prohibition of "prac­
tices, procedures and tests" that 
disproportionately affect members 
of those groups that the Act 
protects. Significant freedom 
must be afforded- employers and 
unions to create differing 
seniority systems. But that 
freedom must not be allowed to 
sweep w i t h i n  the ambit of 
§ 703(h) employment rules that 
depart fundamentally from com­
monly accepted notions concern­
ing the acceptable contours 
of a seniority system, simply 
because those rules are dubbed 
" s e n i o r i t y "  p r o v i s i o n s  or 
have some nexus to an arrangement 
that concededly operates on the 
basis of seniority. There can be 
no doubt, for instance, that a 
threshold requirement for enter­
ing a seniority track that took 
the form of an educational 
prerequisite would not be part of 
a "seniority system" within the 
intendment of § 703(h).

444 U.S. at 608-09.
The courts below found that the 

line-of-progression requirements here, like 
the high school education requirement and

- the aptitude tests in Griggs v. Duke Power 
Co., are artificial and unnecessary bar­
riers to advancement by black and female



107
6±/employees. (App. 31-32, 78-80). These

barriers are "fair in form, but discrimina­
tory in operation," Griggs, 401 U.S. at 
431; they "operate to 'freeze' the status 
quo of prior discriminatory employment 
practices." Id_. at 430 . As the Fourth 
Circuit recognized in the present case, 
"[sjince black employees had been largely 
excluded from the fabrication departments, 
they held few jobs in most of these lines 
and could not advance despite their se­
niority. " (App. 78-79) (emphasis added). 
Since the lines of progression are not part 
of any pre-Act or post-Act "seniority sys-

61/ The district court found that six of tEe nine lines of progression were not 
justified by business necessity and perpet­
uated the job segregation created by the 
company's and the union's prior inten­
tional discrimination. (App. 31-32). The 
Fourth Circuit affirmed this finding (App. 
78-80), and this Court denied certiorari. 
(App. 108).



-  108  -

tem" and therefore cannot be protected 
by § 703 (h), they ‘'fall under the Griggs 
rationale." Teamsters, 431 U.S. at 349.
Accordingly, the courts below correctly 
concluded that the lines of progression
violate Title VII.



109

CONCLUSION

The judgment of the Fourth Circuit en 
banc should be affirmed.

Respectfully submitted,

JACK GREENBERG JAMES M. NABRIT, III^
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

BARRY L. GOLDSTEIN 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005

HENRY L. MARSH, III JOHN W. SCOTT, JR.
RANDALL G. JOHNSON

Hill, Tucker & Marsh 
P.0. Box 27363 
Richmond, Virginia 23261

Attorneys for Respondents John Patterson, et al.
*Counsel of Record

October 1981



4 .
/

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1980

NO.

THE AMERICAN TOBACCO COMPANY, 
TOBACCO WORKERS' INTERNATIONAL 
UNION, AND LOCAL 182 of TOBACCO 
-WORKERS' INTERNATIONAL UNION,

Petitioners, 
v.

JOHN PATTERSON, MARION MOSHOE, 
EDMUND PAGE, JAMES RANDOLPH 

AND PERCY TAYLOR,
Respondents.

AMERICAN BRANDS, INC.,
Petitioner,

v.
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,
Respondent .

CERTIFICATE OF SERVICE

I, Henry T. Wickham, being a member of the bar 
of the Supreme Court of the United States, hereby certify 
that, on January 15, 1981, three (3) copies of the petition



(

for a writ, of certiorari were served upon all parties
required to be served by placing said copies in the

)United States Mail, postage prepaid and addressed to the 
following individuals, all in accordance with Sup.Ct.R. 
28.5(b):

Henry L. Marsh, III, Esquire 
HILL, TUCKER & MARSH 
214 East Clay Street 
Post Office Box 27363 
Richmond, Virginia 23261

Counsel for Respondents John Patterson, 
Marion Moshoe, Edmund Page, James 
Randolph and Percy Taylor

Vella M. Fink, Esquire
Equal Employment Opportunity Commission 
2401 E Street, N.W.
Washington, D. C. 20506

Counsel for Respondent Equal Employment 
Opportunity Commission

Jay J. Levit, Esquire 
LEVIT & MANN
Third Floor, Imperial Building 
Fifth and Franklin Streets 
Richmond, Virginia 23219

Counsel for Petitioners Tobacco Workers' 
International Union and Local 182, Tobacco 
Workers' International Union

James F. Carroll, Esquire 
East Air Rights Building 
7315 Wisconsin Avenue, N.W.
Washington, D. C. 20014

Counsel for Petitioners Tobacco Workers' 
International Union and Local 182, Tobacco 
Workers' International Union

- 2 -



/ I - r -  /  / '  /
h U si's^-i '■Henry Tj'. Wickham 
Counsel for Petitioners 
The American Tobacco Company, 
a Division of American Brands, 
Inc. and American Brands, Inc.
MAYS, VALENTINE, DAVENPORT & MOORE
23rd Floor, F&M Center
1111 East Main Street
Post Office Box 1122
Richmond, Virginia 23208
(804) 644-6011