Franks v. Bowman Transportation Company Brief for Respondent as Amicus Curiae

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TABLE OF CONTENTS

ADDITIONAL STATUTORY PROVISION
INVOLVED .................................................................
COUNTER-STATEMENT OF T1IE CASE ........ .

ARGUMENT...............................................................
Introduction and Summary ....................................
I. The “ Rightful Place” Remedy Sought by Peti­

tioners Is Called For By The Congressional 
Scheme ...............................................................
A. The Congressional Policies Which Bear

Upon The Fashioning Of “ Seniority” 
Remedies Under Title V I I ...........................

B. The Relief Sought By Petitioners Is Fully
Consistent With, And Effectuates, The Con­
gressional Objectives ....................................

C. The “ Last In, First Out” Layoff Cases,
And The Implications Of The Congressional 
Determination To Preclude Preferential 
Treatment......................................................

II. This Case Should Not Be Decided On The Basis
Of 42 U.S.C. § 1981.............................................

CONCLUSION ............................................................

Page

3
OO
6

6

24

29

33
36

TABLE OF CITATIONS 

Cases

Adickes v. S.II. Kress and Co., 398 U.S. 144 (1970) 33
Albemarle Paper Co. v. Moody, 43 LAV. 4880 (June

25, 1975) ................................................ 8-9, 23, 26, 27-28
Atlantic Maintenance Co., 134 NLRB 132S (1961),

enforced 305 F.2d 604 (3rd Cir. 1962) ...................  27
Bing v. Roadway Express, Inc., 4S5 F.2d 441 (5th 
: Cir. 1973) ...........................................................  28-29, 32



Page
Boive v. Colgate Palmolive Co., 489 F.2d 896 (7th

Cir. 1973) .................................................................  29
Consolidated Dairy Products, 194 NLRB 701 (1971) 27
Cox v. Allied. Chemical Corp., 392 F. Supp. 309 (M.T).

La. 1974) ...................................................................  32
Delay v. Carling Brewing Co., 10 FEP Cases 164

(N.D. Ga. 1974) ............   32
EEOC v. Detroit Edison Co., 10 FEP Cases, 239 (6th

Cir. 1975) .................................................................  29
First National Bank of Chicago v. United Airlines,

342 U.S. 396 (1952) .............    6
Great Lakes Dredge £  Dock Co., 169 NLRB 631

(1968) ....................................................................... 27
Griggs v. Duke Power Co., 401 U.S. 424

(1971) ....................................................  2-3, 20, 22, 35-36
Hughes Corporation, 135 NLRB 1222 (1962) ..........  27
Jersey Power Central £  Light Co. v. International 

Blid. of Electrical I Yorkers, 508 F.2d 687 (3rd Cir.
1975) ............................................................    31-32

Johnson v. Bailway Express Agency, Inc., 43 L."\V.
4623 (May 19, 1975) ..............      34

Lamar Creamery Co., 115 NLRB 1113 (1956), en­
forced 246 F.2d 8 (5th Cir. 1957) ............................. 27

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974) 35-36 
Loy v. City of Cleveland, 8 FEP Cases 614 (N.D.

Ohio, 1974) ............................    32
Nevada Consolidated Copper Corp., 26 NLRB 1182

(1940), enforced 316 U.S. 105 (1942) .....................  27
Pacific American Shipowners Association, 98 NLRB

582 (1952) ...............................................    27
Phelps Dodge Corp., 19 NLRB 547 (1940), enforced

313 U.S. 177 (1941) ..................................................  26-27
Pipefitters v. United States, 407 U.S. 385 (1972) ....  21
Porter Co. v. NLRB, 394 U.S. 99 (1970) ...................  22-23
Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.

Va. 1968)..............................................    32

ii



Robinson v. Lorillard Carp., 444 F.2d 791 (4th Cir 
1971) ....................................................................‘

Rodriguez v. East Texas Motor Freight, 505 F 2d 40 
(5th Cir. 1974) ....................................

29

32-33

Page

Schaefer v. Tannian, 10 FEP Cases 897 (E.D Mich 
1975) .......................................... ...........................  '

Thornton v. East Texas Motor Freight, 497 F 2d 416 
(6th Cir. 1974) ..................................’...........'

U.S. v. Allegheny Ludlum Industries, 8 FEP Cases 
198, 63 FED 1 (N.D. Ala., 1974) .......................... .

IJ.S. v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir 
1971) .......................................................... .

b.S. v. Local 189, United Papermakers, 416 F.2d 980 
(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970)

U.S. v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir 
1973) ...................................................... '

U.S. v. United States Steel Corp., 371 F. Surra 104-5 
(N.D. Ala. 1973) ................................

32

29, 32

3

29

32

29

oO
Waters v. Wisconsin■ Steel Works, 502 F.2d 1309 (7th 

Cir. 1974) petitions for certiorari pending, Nos. 74-
1064, 74-1350 ............................................... 7-8, 31-32, 34

Watkins v. United Steelivorkers of America 369 F 
Supp. 1221 (E.D. La. 1973), pending on appeal to 
1* ifth Circuit as Fo. 74-2604 ....................  gp gg

W. 11. W. Services, Inc., 190 NLRB 499 (1971) ........
Whitfield v. United Steelworkers, 263 F 2d 546 (5th 

Cir. 1959) .................................

Statutes
Civil Rights Act of 1866:

Section 1, 42 U.S.C. § 1981..................
Section 3, 42 U.S.C. § 1.988 ..................

Civil Rights Act of 1964, Title VII: 
Section 703(a), 42 U.S.C. §2000e-2(a) 
Section 703(c), 42 U.S.C. § 2000e-2(c)

33-35
34-35

. . . .  10, 20
10-11, 20

m



Section 703(h), 42 U.S.C. §2000e-2(h) .. 9, 18-23, 31, 33
Section 703(;j), 42 U.S.C. § 2000e-2(j) ..........  3, 18-21, 31
Section 706(g), 42 U.S.C. § 2000e-5(g) ..........  8-11, 20-23

National Labor Relations Act:
Section 8(d), 29 U.S.C. § 158(d) ............................  22-23
Section 10(c), 29 U.S.C. $ 160(c) .......................  22-23, 26

Arbitration Decisions
Amoco Oil Co., 61 LA 10 (Bernard Cushman, 1973) 26
BASF Wyandotte- Carp., 63 LA 121 (Elliot Beitner,

1974) ........................................................................  26
Inland Lumber Co., 62 LA 1151 (Henry C. Wilmoth,

1974) ......................................................................... 26
Jordanos Markets, Inc., 63 LA 345 (Marshall Ross,

1974) ........................................................................   26
North American Rockwell Corp., 62 LA 901 (Martin

E. Conway, 1974) ....................................................  26
P.M. Northwest Co., 42 LA 961 (Daniel Lyons, 1964) 26

Legislative Materials
EEOC, Legislative History of Titles VII and XI of

the Civil Rights Act of 1964 ................................  2, 12-21
Rustic, The Blacks and the Unions, Harper’s Maga­

zine, May 1971, pp. 73, 76

Page

2



IN THE

g 'n ^ r r u tf  ( t a r t  n f  lb? U n ite d  0 t a t e
October Term, 1074 

No. 74-728

H arold F ranks and J o h n n ie  L e e , Petitioners,
v.

B owman T ransportation C ompany , I n c ., et al.

O n W rit  of Certiorari to t h e  U n ited  S tates 
C ourt of A ppea ls  for t h e  F if t h  C ircuit

BRIEF FOR
RESPONDENT UNITED STEELWORKERS OF 

AMERICA, AFL-CIO,
AND FOR

AMERICAN FEDERATION OF LABOR AND 
CONGRESS OF INDUSTRIAL ORGANIZATIONS, 

AS AMICUS CURIAE

Tliis brief is filed jointly by respondent United Steel­
workers of America, AFL-CIO (hereinafter referred to as 
“ USWA” ), and by American Federation of Labor and 
Congress of Industrial Organizations, as amicus curiae 
(hereinafter referred to as “ AFL-CIO” )-1

USWA, which is the AFL-CIO’s largest affiliate, is the 
collective bargaining representative of the employees of 
respondent Bowman Transportation Company (hereinafter 
“ the Company” ). AFL-CIO is a federation of 111 labor

1USWA and AFL-CIO tile this statement of their common posi­
tion in a single brief for the convenience of the Court. All parties 
have furnished written consent to AFL-CIO to file an amicus 
curiae brief.



2

organizations, with a combined membership of 14 million 
Both AFL-CIO and USWA actively supported the en­

actment of Title VII of the Civil Rights Act of 1964. Presi­
dent Mean}', testifying in support of its passage, declared:

"The leadership of the AFL-CIO, and of the separate 
federations before merger, has been working ceaselessly 
to eliminate those prejudices. The leaders of every 
affiliated national and international union are enlisted 
in the same effort. We have come a long way in the 
last 20 years—a long way farther, I might sav, than 
any comparable organization, including'the religious 
organizations as a whole, and certainly we are a gener­
ation or more ahead of the employers as a whole.

"But we have said repeatedly that to finish the job 
we need the help of the TI.S. Government. * * * When 
the rank-and-file membership of a local union obsti­
nately exercises its right to be wrong, there is very 
little we in the leadership can do about it, unaided. * * *

In shoit, I am not here to ask for special exemp­
tions for unions; quite the contrary. I hope the law you 
draft will cover the whole range we ourselves have 
written into our constitution and we hope you will make 
sure that the law will also apply to apprenticeship pro­
grams of every kind, as I urged this very committee 
last August.” 2

Both USWA and AFL-CIO have labored diligently to bring 
employment practices throughout American industry into 
compliance with Title VII, and to secure judicial interpre­
tations which effectuate Title V Il’s statutory objectives.3

2 EEOC, Legislative History of Titles VIT and XI of the Civil 
Rights Act of 1964 [hereinafter “ Leg. Hist,” ] pp. 2158-59. The 
President of USWA had likewise testified in support of enactment 
of Title VII. Id, 3242. See also Bayard Rustin, the Blacks and the 
Unions, Harper’s Magazine, May, 1971, pp. 73 76

3 For example, USWA filed a brief amicus curiae in Griacis v. 
Duke Power Co., 401 U.S. 424, urging the statutory interpretation

A



3

ADDITIONAL STATUTORY PROVISION INVOLVED
We believe that another provision of Title VII of the 

Civil Rights Act of 1964, not reproduced in the brief for 
petitioners, is important to the analysis of this case. Section 
703(j), 42 U.S.C. § 2000e-2(j) provides:

“ (j) Nothing contained in this title shall be inter­
preted to require any employer, employment agency, 
labor organization, or joint labor-management commit­
tee subject to this title to grant preferential treatment 
to any individual or to any group because of the race, 
color, religion, sex, or national origin of such individ­
ual or group on account of an imbalance which may 
exist with respect to the total number or percentage of 
persons of any race, color, religion, sex, or national 
origin employed by any employer, referred or classi­
fied for employment by any employment agency or 
labor organization, admitted to membership or classi­
fied by any labor organization, or admifted to, or em­
ployed in, any apprenticeship or other training 
program, in comparison with the total number or per­
centage of persons of such race, color, religion, sex, 
or national origin in any community, State, section, or 
other area, or in the available work force in any com­
munity, State, section, or other area.”

COUNTER-STATEMENT CF THE CASE
We accept petitioners’ statement of the case, but believe

which this Court adopted, and TJSWA initiated the negotiations 
leading to the industry-wide decree bringing employment practices 
in the steel industry into compliance with recent judicial interpre­
tations of Title VII. See U.S. v. Allegheny Ludl.um Industries, 8 
PEP Cases 198, G3 F.R.D. 1 (N.D. Ala., 1974). USWA’s role in 
integrating the two largest southern steel plants, prior to passage 
of Title VII, is recounted in U.S. v. United States Steel Carp., 371 
P. Supp. 104”), 1055 and particularly n. 23 thereat, 1000 n. 39, 
1062 (N.D. Ala. 1973), and Whitfield v. United Steelworkers, 263 
F.2d 546 (5th Cir. 1959).



4

the Court should have additional information respecting 
the role of the Union.

Until 1967, the Company’s employees were unorganized. 
International Union of District 50 (hereinafter “ District 
50” ) had sought to organize the employees previously, hut 
had been rejected in an NLRB-conducted election (43a). 
The employment conditions which prevailed during this 
non-union period were aptly described in the decision of 
the court below: the Company had “followed a conscious 
policy of keeping its employees segregated according to 
race,” had “ prohibited inter-departmental transfers flat­
ly,” and had discriminated against some blacks in hiring, 
495 F.2d at 409-411.*

In 1967, District 50 succeeded in organizing the em­
ployees, was recognized by the Company as their bargain­
ing representative, and commenced negotiations with the 
Company for a first collective bargaining agreement (43a). 
In accordance with its long-standing policy that “ company­
wide seniority is the only true seniority,” District 50 pro­
posed that the Company convert its seniority system from 
departmental seniority to company-wide seniority, that all 
job vacancies be posted, that transfers be allowed on the 
basis of plant seniority, and that the Company henceforth 
assign newly-hired employees to all departments “ without 
regard to race” (44a; 495 F.2d at 410-411). The Company 
agreed to abolish its no-transfer policy, and to assign new 
employees without regard to race. (495 F.2d at 410-411). 
The Company refused, however, to substitute company- 
wide seniority for departmental seniority, or to post notices 
of job vacancies (44a-45a). District 50, convinced that it

4 The Company was willing to hire blacks who would accept 
assignment to the historically “ black” jobs, but refused to hire 
those whose sole interest was in “ white” jobs. Id. at 411.



,.W*U*1. ‘taf <ii»̂n.rv,,

5

could not conduct a successful strike, acquiesced in an 
agreement which preserved the departmental seniority sys­
tem and did not provide for posting of job vacancies (44a; 
4!!5 F.2d at 410-411).

The 1967 agreement provided for a reopener, without the 
right to strike, in 1968. In the negotiations pursuant to 
that reopener, District 50 again demanded company-wide 
seniority and posting (45a). This time, the Company agreed 
to the posting of job vacancies, but it again refused to 
convert to company-wide seniority (45a).

The Company had exclusive authority in determining 
who would be hired (45a). The Company continued to dis­
criminate against blacks in hiring until 1972. 495 F.2d at 
411.

In 1912, District 50 merged with USWA, Accordingly, 
USWA has succeeded District 50 as the employee’s bar­
gaining representative, and as the union-respondent in this 
case.

This suit sought relief for two groups of workers: blacks 
who were hired when they first applied but who were as­
signed discriminatorily to jobs in the Company’s less de­
sirable departments, and blacks who were discriminatorily 
denied employment altogether when they first applied.

The decision of the court below granted the first group— 
those discriminatorily assigned—all of the relief they 
sought, The court held that these employees were entitled 
not only to back pay, but also to the right which District 50 
had sought unsuccessfully in negotiations: to transfer to 
other departments with “ the use of full company seniority 
for transfer purposes . . . and for all purposes after trans­
fer in the new department” (495 F.2d at 416). The Com­
pany’s petition for certiorari from this portion of the

\



6

decision below was denied, 43 L.W. 3330 (1974).

idle decision below did not, however, fully cure the ms- 
crimination visited upon those who had initially been re­
jected for employment solely because of their race. While 
the decision accorded these employees back pay tor the 
period during which employment had been discriminator]'ly 
withheld, it denied their request that they be awarded the 
earlier seniority dates which they would have enjoyed ab­
sent discrimination. Id. at 417-418. We agree with petition­
ers, and demonstrate herein, that the court below erred in 
not granting the seniority relief requested.

ARGUMENT
Introduction and Summary

It is often said that hard cases make bad law. But easy 
cases can also make bad law, if the apparent correctness of 
a particular result deflects attention from the importance 
of the path by which that result is reached. Mr. Justice 
Jackson once made the point with characteristic grace in a 
concurring opinion:

“ I part company with the Court as to the road we will 
travel to reach a destination where all agree we will 
stop, at least for the night. But sometimes the path 
that we are beating out by our travel is more impor­
tant to tlie future wayfarer than the place in which we 
choose to lodge.” 5

We agree with petitioners that they are entitled to the 
seniority relief which they seek. We believe, however, that 
petitioners have arrived at the correct result through an 
analysis of Title VII which is incomplete, in that it does 
not focus upon the basic objectives which guided Congress 
in structuring that statute.

5 First National Bank of Chicago v. United Airlines, 342 U.S. 
396, 398 (1952).

—t-'



7

As we will develop herein, Congress had two very clear 
objectives: (1) to forbid discrimination and to make whole 
those who suffered discrimination; (2) not to confer pref­
erential rights upon minorities, either in the substantive or 
remedial provisions of the Act.

In our view, these two objectives lead to a dichotomy be- 
tueen make whole” remedies, which fully implement the 
Congressional design, and “ preferential” remedies, which 
Congress clearly intended to forbid. In the seniority con­
text, there are two types of remedies which would be

preferential” : (1) conferring enhanced 
individuals who are not discriminatees, i.e.

seniority upon 
, who have not

been denied employment or perquisites of employment by 
the defendants on account of race, creed, color, sex or na­
tional origin; and (2) conferring seniority rights upon dis- 
criminatees beyond those necessary to place them in the 
positions they would be occupying had there been no dis­
crimination.

Petitioners are entitled to the relief they seek because 
that relief is “ make whole,” not “ preferential.” Were this 
Court to reverse the decision below, however, without rec­
ognizing the cutting line” drawn by Congress, its opinion 
might suggest that other cases be decided in a manner in­
consistent with the Congressional!y intended scheme. This 
concern is not hypothetical, for there is already on this 
Court’s docket a case {Waters v. Wisconsin Steel Works, 
No. 74-1064, petition for certiorari pending) in which a 
“ Preferential” remedy is sought, but which counsel for the 
If atos  petitioners (who are also counsel for petitioners 
here) assert poses “ the same” issue n substance as that 
in the instant case.6

0 Reply Brief in Support of Certiorari in Waters, p. 1. The perti-



We begin by analyzing the relevant legislative materials 
and showing that they demonstrate that the dichotomy just 
noted is an accurate distillation of the Congressional intent 
We then draw the lessons which Title VII, read against the 
background of its history, provides for this ease, and for 
cases such as Waters.

I. The “Rightful Place" Remedy Sought By Petitioners Is 
Called for By the Congressional Scheme

A. T h r  C ongressional P olicies w h ic h  B ear U pon  t h e  
F ash ion in g  op “ S e n io r it y ”  R em edies u nder  T itle  VII

The basic principles governing the fashioning of relief 
for Title VII violations were articulated by this Court in 
Albemarle Paper Co. v. Moody, 43 L.W. 4880 (June 25, 
1975). Albemarle involved the remedy of back pay, but the 
sentence of § 706(g) which the Court there construed au­
thorizes back pay and other equitable relief in the same 
terms.7 As this Court made clear in Albemarle, the discre­
tion vested in district courts by § 706(g) must be exer­

nent paragraph, in full, states:
“ As respondents properly recognize, the certworthiness of 

Questions 1 and 2 involves the relationship of the Seventh 
Circuit decision in the instant case to the Fifth Circuit deci­
sion in Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir., 1974), cert, granted 43 U.S.L.W. 3515 (1975), No. 
74-728. Both the Fifth and Seventh Circuits held that “ last 
hired, first fired" seniority systems were immune per se from 
legal attack. The Fifth Circuit reached this result by holding 
that it lacked the power to give an aggrieved employee the 
necessary relief, seniority retreadive to the dale on which he 
was denied a job because of his race. The Seventh Circuit 
reached this result by holding that such a seniority system 
was, as a matter of law, non-discriminatory. The substance of 
the Fifth and Seventh Circuit rules is of course the same "

7 Section 706(g), first sentence, provides:
“ If the court finds that the respondent has intentionally



9

cised consistently with “ the purposes which inform Title 
V II” (43 L.W. at 4883-84). The essential first step in re­
solving this case is, therefore, to identify those Congres­
sional objectives which bear upon the formulation of “ sen­
iority” remedies.

The court , below held that § 703(h) precludes award­
ing- seniority to a discriminatee for any period prior to 
his actual date of hire. Respectfully, we submit that be­
cause the court below failed to focus on the broad design 
of Title VII, it construed that one section out of context 
and imported to it a meaning quite different from that in­
tended by Congress. As we show, the central concern which 
preoccupied Congress in drafting Title VII was to be sure 
that it had made sufficiently plain the line between abolish­
ing- discrimination, which was its goal, and providing pref­
erential treatment, which all members wished to preclude. 
The debate on the floor of Congress was not over whether 
that line should be drawn—everyone agreed that it should 
—but over what language was necessary to make that line 
unmistakably clear. Section 703(h) is but one of several 
provisions added to confirm this Congressional purpose. 
Properly construed, it precludes only “ preferential” 
treatment. It does not preclude any remedy which—as we 
later show is involved here—merely accords a proven vic-

engaged in or is intentionally engaging in an unlawful em­
ployment practice charged in the complaint, the court may 
enjoin the respondent from engaging in such unlawful em­
ployment practice, and order such affirmative action as may 
be appropriate, which may include, but is not limited to, re­
instatement or hiring of employees, with or without back pay 
(payable by the employer, employment agency, or labor orga­
nization, as the case may be, responsible for the unlawful 
employment practice), or any other equitable relief as the 
court deems appropriate.”



30

tim of discrimination his “ rightful place” : the place in 
the seniority system which he would be occupying but for 
the prior discrimination against him.

The drafters of the original bill which eventuated in 
Title VII sought to make explicit that remedies would be 
available only to those who established that they were vic­
tims of discrimination. The basic liability provisions, 
§§ 703(a), (c), speak of discrimination “against any indi­
vidual,” and the key remedial provision, § 700(g), states 
m its last sentence that courts may not furnish remedies 
to an individual” unless he has proven that he has suf­
fered employment disadvantage “ on account of race, color, 
religion, sex or national origin.” 7* The drafters believed * 1

7‘ Section 703(a) provides:

It shall be an unlawful employment practice for an em­
ployer—

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

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

Section 703(c) provides:
It shall be an unlawful employment practice for a labor 

organization—-

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

(2) to limit, segregate, or classify its membership or 
applicants for membership or to classify or fail or refuse



11

that these provisions, standing alone, made clear the dual 
Congressional objectives: on the one hand, to forbid dis­
crimination and make discriminatees whole; on the other, 
to preclude preferential treatment of minorities qua mi­
norities. As Senators Clark and Case, the floor managers of 
Title VII in the Senate, explained:

No court order can require hiring, reinstatement, 
admission to membership, or payment of back pay for 
anyone who was not discriminated against in violation 
of this title. This is stated expressly in the last sen­
tence of section 707(e) [enacted as 706(g)] which 
makes clear what is implicit throughout the whole 
title; that employers may hire and lire, promote and 
refuse to promote for any reason, good or bad, pro­
vided only that individuals may not be discriminated 
against because of race, color, religion, sex or national 
origin. ’ ’

* * * * * 3

to refer for employment any individual, in any way which 
would deprive or tend to deprive any individual of employ­
ment opportunities, or would limit such employment oppor­
tunities or otherwise adversely affect his status as an em­
ployee or as an applicant for employment, because of such 
individual s race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discrimi­
nate against an individual in violation of this section.

The last sentence of Section 700(g) provides:
No order of the court shall require the admission or rein­

statement of an individual as a member of a union, or the hir- 
ing, reinstatement, or promotion of an individual as an em­
ployee, or the payment to him of any back pay, if such 
individual was refused admission, suspended, or expelled, or 
was refused employment or advancement or was suspended or 
discharged for any reason other than discrimination on ac­
count of race, color, religion, sex. or national origin or in vio­
lation of section 704(a). [Section 704(a) forbids retaliation 
against employees for asserting their rights under Title V llj.



12

“ There is no requirement in title VII that an em­
ployer maintain a racial balance in his work force.

It must be emphasized that discrimination is 
prohibited as to any individual. While the presence or 
absence of other members of the same minority group 
in the work force may be a relevant factor in deter­
mining whether in a given case a decision to hire or 
to refuse to hire was based on race, color, etc., it is 
only" one factor, and the question in each case would be 
whether that individual was discriminated against.” 8

:
But notwithstanding the clarity of the bill’s original lan­

guage, there developed a national tide of concern that Title 
VII would confer preferential rights upon minorities at 
the expense of the majority. Two basic fears were voiced 
again and again: that Title VII would force employers to 
hite minorities pursuant to quotas in order to achieve 
racial balance, and that minorities when hired would be 
given special seniority rights boosting them ahead of in­
cumbent whites.

The alarums were first sounded in the Minority Report 
accompanying the House Judiciary Committee’s Report 
recommending adoption of Title VII. The minority mem­
bers asserted that the bill “ under the cloak of protecting 
the civil rights of certain minorities, will destroy civil 
rights of all citizens of the United States who fall within 
its scope.” 9 They listed a number of interests which would 
be “ seriously impaired] by the passage of the bill.” 10 11 
Among these were the “ seniority rights of employees in 
corporate and other employment.” 11 They warned that

i

8 Leg. Hist. 3044, 3040.
9 Leg. Hist. 2064.
10 Ibid.
11 Id., 2065.



13

Title VII “ would destroy seniority.” 12 They asserted that 
the bill’s “ true interest and purpose” was to achieve racial 
balance, not merely to end discrimination.13 Dramatizing 
the threat to seniority which they perceived, the minority 
members declared:

“The provisions of this act grant the power to de­
stroy anion seniority. The action of the Secretary of 
Labor already mentioned is merely the beginning, if 
this legislation is adopted. With the full statutory 
powers granted by this bill, the extent of actions which 
would- he taken to destroy the seniority system is un­
known and unknowable.

“ To disturb this traditional practice is to destroy a 
vital part of unionism. Under the power granted in 
this bill, if a carpenters’ hiring hall, say, had 20 men 
awaiting call, the first 10 in seniority being white car­
penters, the union could be forced to pass them over 
in favor of carpenters beneath them in seniority, but 
of the stipulated race. And if the union roster did not 
contain the names of the carpenters of the race needed 
to ‘racially balance’ the job, the union agent must then 
go into the street and recruit members of the stipulated 
race in sufficient number to comply with Federal or­
ders, else his local could be held in violation of Federal 
law.

“ Neither competence nor experience is the key for 
employment under this bill. Race is the principal, first, 
criterion. ’ ’14

These accusations prompted a number of the bill’s spon­
sors in the House to submit a statement of “ additional 
views,” in which they sought to allay the fears which the 
minority members had voiced:

12 Id., 2066.
13 Id., 20G7-68.
u Id. 2071 (emphasis in original).



14

I t must also be stressed that the Commission must 
confine its activities to correcting abuse, not promoting 
equality with mathematical certainty. In this regard 
nothing in the title permits a person to demand em- 
pioyment. Of greater importance, the Commission will 
only jeopardize its continued existence if it seeks to 
impose forced racial balance upon employers or labor 
nnions. Similarly, management prerogatives, and un­
ion freedoms are to be left undisturbed to the greatest 
extent possible. Internal affairs of employers and labor 
organizations must not be interfered with except to the 
muted extent that correction is required in discrimina­

tion practices. Its primary task is to make certain that 
the channels of employment are open to persons re- 
gaidless of their race and that jobs in companies or 
membership m unions are strictly filled on the basis of 
qualification.” 15

The sponsors’ reassurances proved sufficient in the 
House, which passed the bill without material change. But 
m the Senate a. filibuster began on March 9, 1964 and con­
tinued for more than three months.16 That filibuster fed on 
the fear that Title VII was intended “ to rob all Americans

°f 'mi>° ^ T l nghtS f°r tb° W f i t  0f a of the pop-
11 a ion. The emotional climate was accurately depicted
y enatoi Clark, one of the floor managers of Title VII- 

“ There lias been so much oratory, and so many

what'TitleVTT^r1' r r ntS haVG 1)0011 mado aboutohh r  VU does< ^ a t  it is perhaps difficult to speak 
bjectively and carefully about what the title is in- 
enc ed to do, without being diverted into an effort to 

rebut some of what can only be called fantastic mis- 
statemente about what the title does, which have been 
made fr0m 111110 10 time> not only on the floor of the

15 Id. 2150.
10 Id. 3092.



15

Senate but also by a large number of individuals ser­
ving in the press corps, without their having- taken the 
trouble to read the title or being- quite careless in what 
they had to say about it.” 18 *

As the filibuster entered its second month, Title VIPs 
sponsors submitted three written explanations of the bill 
designed specifically to quiet the fears that Title. VII would 
require racial quotas and grant special seniority rights to 
minorities. Senators Clark and Case, the floor managers, 
submitted an interpretative memorandum addressed to 
these fears. They explained that Title VII did not mandate 
racial balance, indeed it forbade “ any deliberate attempt 
to maintain a racial balance” :

“ There is no requirement in Title VII that an em­
ployer maintain a racial balance in his work force. On 
the contrary, any deliberate attempt to maintain a 
racial balance, whatever such a balance may be, would 
involve a violation of Title VII because maintaining 
such a balance would require an employer to hire or to 
refuse to hire on the basis of race. * * * ” 10

With respect to the fears concerning seniority, the mem­
orandum declared :

“ Title VII would have no effect on established sen­
iority rights. Its effect is prospective and not retro­
spective. Thus, for example, if a business 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 
vacancies on a nondiscriminatory basis. He would not 
be obliged—or indeed, permitted—to fire whites in 
order to hire Negroes, or to prefer Negroes for future 
vacancies, or, once Negroes are hired, to give them

18 Id. 3092.
10 Id. 3010.



UM» .x

16

special seniority rights at the expense of the white 
workers hired earlier. (However, where waiting lists 
for employment or training are, prior to the effective 
date ot the title, maintained on a discriminatory basis, 
the use of such lists after the title takes effect may be 
held an unlawful subterfuge to accomplish discrimi­
nation.) ” 20

Senator Clark also introduced a statement prepared by 
the Department of Justice “ in rebuttal to the argument 
made by the Senator from Alabama [Mr. Hill] to the ef­
fect that Title VII Would undermine the vested rights of 
seniority * * * and that Title VII would impose the re­
quirement of racial balance.” 21 The Department of Justice 
memorandum stated:

‘‘First, it has been asserted that title VJI would 
undermine vested rights of seniority. This is not cor- 
lect. 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 provision would not be affected 
in the least by title VII. This would be true even in 
the case where owing to discrimination prior to the 
effective date of the title, white workers had more 
seniority than Negroes. Title ATI is directed at dis­
crimination based on race, color, religion, sex, or na­
tional 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 discriminated against be­
cause 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

20 Ibid.
21 Id. 3244.



17

the basis for a discharge subsequent to the effective 
date of the title. 1 do not know how anyone could quar­
rel with such a result. But, in the ordinary case, assum­
ing 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. Employers and labor organizations would 
simply be under a duty not to discriminate 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.

* # * *

“ Finally, it has been asserted that title VII would 
impose a requirement for ‘racial balance.’ This is in­
correct. There is no provision, either in title VII or in 
any other part of this bill, that requires or authorizes 
any Federal agency or Federal court to require pref­
erential treatment for any individual or treatment for 
any individual or any group for the purpose of achiev­
ing racial balance. No employer is required to hire an 
individual because that individual is a Negro. No em­
ployer is required to maintain any ratio of Negroes to 
whites, Jews to gentiles, Italians to English, or women 
to men. The same is true of labor organizations. On 
the contrary, any deliberate attempt to maintain a 
given balance would almost certainly run afoul of 
title VII because it would involve a failure or refusal 
lo hire some individual because of his race, color, 
religion, sex, or national origin. What title VII seeks 
to accomplish, what (he civil rights bill seeks to ac­
complish is equal treatment for all.” 22

Finally, Senator Clark submitted a series of written 
answers to questions which had been proffered by Senator 
Dirksen as to (he meaning of the bill. With respect to

22 Id. 3244-45.



18

seniority the pertinent question and answer were as 
follows:

“ Question. Would the same situation prevail in re­
spect to promotions, when that management function 
is governed by a labor contract calling for promotions 
on the basis of seniority? What of dismissals? Nor­
mally, labor contracts call for 'last hired, first fired.’ 
If the last hired are Negroes, is the employer discrimi­
nating if his contract requires they be first fired and 
the remaining employees are white?

“ Answer. Seniority rights are in no way affected hv 
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.” 23

With respect to the concern that the “ hill would require 
employers to establish quotas for nonwhites in proportion 
to the percentage of nonwhites in the labor market area,” 
Senator Clark responded: “ Quotas are themselves dis­
criminatory.” 24

Despite these efforts to set fear at rest, it became neces­
sary, in order to secure sufficient votes to end the filibuster, 
to include express language dealing with the subjects of 
racial balance and seniority (the present §§ 703(j) and (h)) 
as part of the package of amendments known as the Mans- 
field-Dirksen compromise. Senator Humphrey explained 
the sponsors’ reason for accepting § 703(j) :

“ * * * A new subsection 703(j) is added to deal with 
the problem of racial balance among employees. The 
proponents of this bill have carefully stated on numer­
ous occasions that title VII does not require an em­
ployer to achieve any sort of racial balance in his work

23 Id. 3013.
24 Id. 3015.



19

force by giving preferential treatment to any indi­
vidual or group. Since doubts have persisted, subsec­
tion (j) is added to state this point expressly. This 
subsection does not represent any change in the sub­
stance of the title. It does state clearly and accurately 
what we have maintained all along about the bill’s 
intent and meaning. ’ ’25 *

Section 703(h), Senator Humphrey declared, served the 
same purpose with respect to the fears which had been 
advanced concerning seniority:

“ A new subsection 703(h) has been added, provid­
ing- that it is not an unlawful employment practice for 
an employer to maintain different terms, conditions, 
or privileges of employment either in different loca­
tions or pursuant to a seniority, merit, or other incen­
tive system, provided the differences are not the result 
of an intention to discriminate on grounds of race, 
religion, or national origin. * * [This] change does 
not narrow application of the title, hut merely clarifies 
its present intent and effect. ” 2G

Even after these changes had been approved, Senator 
Ervin moved to strike Title VII from the Civil Eights Act 
on the ground that it unconstitutionally deprived white 
employees of equal protection. Senator Clark responded:

“ Mr. President, this title would not deprive anyone 
of any rights. All it does is to say that no American, 
individual, labor union, or corporation, has the right 
to deny any other American the very basic civil right 
of equal job opportunity.

“ The bill does not make anyone higher than anyone 
else. It establishes no quotas. II leaves an employer 
free to select whomever he wishes to employ. It enables 
a labor union to admit anyone it wishes to take in. It

25 Id. 3005.
20 Ibid.



20

tells an employment agency that it can get a job for 
anyone for whom it wishes to get a job.

“ All this is subject to one qualification, and that 
qualification is to state: ‘In your activity as an em­
ploye]’, as a labor union, as an employment agency, you 
must- not discriminate because of the color of a man’s 
skin. You may not discriminate on the basis of race, 
color, religion, national origin, or sex.’

“ That is all this provision does. It would establish 
a legislative civil right for what has always been a 
sacred American constitutional right, the right to equal 
protection of the laws. That phrase does not come from 
the commerce clause, but the philosophy behind it is the 
philosophy behind the fail' employment practice title.

“ It merely says, ‘When you deal in interstate com­
merce, you must not discriminate on the basis of race, 
religion, color, national origin, or sex.’

“ Title VII as it presently exists, and as modified— 
as many of us agreed, reluctantly, including myself, 
that it should be modified by the Dirksen amendment— 
is one of the mildest Fair Employment Practices acts 
ever to be brought before the Congress.” 27

The legislative history thus confirms that while Congress 
wanted the proven victims of discrimination to be made 
whole, it did not want anyone to receive preferential treat­
ment. “ Discriminatory preference for any group, minority 
or majority, is precisely and only what Congress has pro­
scribed.” Griggs v. Duke Power Co., 401 U.S. 424, 431 
(1971). That is what the original substantive (H 703(a), 
(c)) and remedial (§ 706(g)) provisions of Title VII de­
clared. That is what the legislation’s sponsors stated again 
and again throughout the debates. Sections 703(h) and (j) 
were added—at the insistence of those whose votes were

27 Ibid,, 3092.



necessary to break the filibuster and enable passage of the 
bill—merely to make doubly sure that the statute could not 
be subject to any other construction.

In the next section, we will show that the statute, prop­
erly construed, entitles petitioners to the remedy they seek. 
We pause first, however, to observe that there are two 
aspects of petitioners’ analysis of the legislative history 
with which we disagree.

First, petitioners urge (brief, pp. 118-30) that the legisla­
tive interpretations proffered by Senators Clark and Case 
in an effort to quiet the fears that Title VII would accord 
preferential rights should be disregarded. In petitioners’ 
view, these statements are not evidence of “ the legislative 
purpose” because they were made “ weeks before §703(1:) 
was conceived.” The contention that the interpretations of 
a bill submitted in writing by its floor managers should be 
disregarded would in any context be a startling one. In the 
context of the debate over Title VII it is absurd. Here, as 
in Pipefitters v. United States, 407 U.S. 385 (1972), spon­
sors struggling to secure a necessary 2/3 majority sought 
to reassure colleagues of their bill’s limited reach.28 This 
Court recognized that sponsors’ explanations of their bill’s 
meaning, which are “ entitled in any event to great weight, 
[are] in this instance controlling.” Id. at 409. Moreover, 
the legislative history of Title VII, recounted above, shows 
clearly the significance of the Clark-Oase materials. They 
explained the bill’s meaning before §§ 703(h) and (j) were 
added, and as Senator Humphrey explained, the latter pro­
visions merely reiterated “ what we have maintained all 
along about the bill’s intent and meaning.” Leg. Hist. 3005.

28 In Pipefitters, a 2/3 majority was needed “ to overrule a pre­
dictable veto” of the Taft-IIartley Act. Here, a 2/3 majority was 
required to terminate an ongoing filibuster.



22

This Court’s analysis of the legislative history in Griggs v. 
Duke Power Co., 401 U.S. 424, 434-436 (1971), confirms, 
albeit in another context, that the Clark-Case materials 
constitute authoritative evidence of Congressional intent. 
The Brief for the United States and the Equal Employ­
ment Opportunity Commission as Amici Curiae (p. 18) 
likewise recognizes these materials to be autlioiitative.

Second, petitioners contend that § 703(h) applies onL 
to the question whether a violation has occurred, and not 
to the question of what remedies may be piovided once 
violations have independently been found. It is difficult to 
perceive what benefit petitioners would derive from this 
distinction, since there is an express prohibition of pref­
erential remedies contained in the last sentence of § 706(g), 
the bill’s remedial provision. In any event the distinction 
is unsound. While it is true that $ 703(h), read literally, 
talks only in terms of violation, the legislative debates, as 
shown above, make clear that the considerations which 
eventuated in the addition of that section encompassed con­
cern for the scope of remedy as well as for the definition 

'o f  violation. On this point, this case is analytically indis­
tinguishable from Porter Co. v. NLRB, 397 U.S. 99 (1970). 
The Court dealt there with the relationship between § 8(d) 
of the NLRA, which states that an employer does not vio­
late his duty to bargain by refusing to agree to a union 
proposal, and § 10(c), which empowers the NLRB to pro­
vide such affirmative remedies against violators “ as will 
effectuate the purposes of the Act.” The Court of Appeals, 
noting that § 8(d) is phrased in terms of violation, held 
that it did not preclude the Board from directing an em­
ployer to agree to a union proposal as a remedy for viola­
tions independently found. This Court rejected the at­
tempted distinction, noting that “ the same considerations



— .w

23

5
i

that led Congress” to prohibit findings of violations on that 
basis likewise dictated that that result not be accom­
plished through remedy-formulation:

“ In reaching this conclusion the Court of Appeals 
held that § 8(d) did not forbid the Board from com­
pelling agreement. That court felt that “ [sjection 8(d) 
defines collective bargaining and relates to a determina­
tion of whether a . . . violation has occurred and not to 
the scope of the remedy which may be necessary to cure 
violations which have already occurred.” 128 U.S. App. 
D. C., at 348, 3S9 F.2d, at 299. We may agree with the 
Court of Appeals that as a matter of strict, literal 
interpretation that section refers only to deciding 
when a violation has occurred, but we do not agree that 
that observation justifies the conclusion that the reme­
dial powers of the Board are not also limited by the 
same considerations that led Congress to enact § 8(d). 
It is implicit in the entire structure of the Act that the 
Board acts to oversee and referee the process of col­
lective bargaining, leaving the results of the contest 
to the bargaining strengths of the parties. I t would be 
anomalous indeed to hold that while §8(d) prohibits 
the Board from relying on a refusal to agree as the 
sole evidence of bad-faith bargaining, the Act permits 
the Board to compel agreement in that same dis­
pute.” 28

The Porter analysis is particularly apposite, for § 10(c), 
there construed, was the model for Title VIPs remedial 
provision, § 706(g). Albemarle, 43 L.W. at 4884-85. Thus, 
while § 703(h) literally talks in terms of whether a viola­
tion has occurred, it expresses a Congressional policy 
which precludes the fashioning of remedies inconsistent 
with its underlying purpose.

29 397 U.S. at 107-108 (emphasis in original).



24

B. The R e l ie f  S ought  jjy P etitio ners  is F ully  C o n sisten t  
w it h , and E ffectu a tes , t h e  Congressional Objec tiv es .

This case involves employees who were originally denied 
employment because of their race. The court below has fur­
nished them a portion of the relief necessary to make them 
whole for the discrimination they suffered: it has ordered 
that they receive backpay for the period during which they 
were unlawfully denied employment. While that remedy 
compensates the employees for the period prior to their 
obtaining employment, it docs not make them whole for 
the period thereafter.

If an employee who was discriminatorily denied employ­
ment in 1970, and who instead was hired in 1972, is ac­
corded a 1972 seniority date, his employment career in 
many respects will be inferior to that which he would have 
enjoyed had he been hired in 1970. Seniority serves many 
functions in the industrial setting, and a reduced seniority 
standing disadvantages an employee as to each.

1. Seniority as a, measure of fringe benefit entitlement. 
Although seniority is most often thought of as a means of 
resolving competition between employees, it serves impor­
tant non-competitive functions as well. In order to earn a 
pension an employee must accumulate a designated number 
of years of service with his employer. The number of weeks 
of vacation which he will receive almost always increases 
as his seniority increases. Entitlement to other fringe bene­
fits, such as insurance and supplemental unemployment 
benefits, may not take effect until he has accumulated a 
specified amount of seniority. An employee who is accorded 
a 1972 seniority date will not enjoy these benefits as fully 
as if he had been hired in 1970 with a 1970 seniority date.

2. Protection in layoff situations. When it becomes neces­



sary to reduce a workforce, the nearly universal practice 
in American industry is to lay off employees in inverse 
order of their seniority. When it later becomes necessary 
to increase the workforce, employees are recalled from lay­
off in the order of their seniority. The denial of two years’ 
seniority may spell the difference between an employee 
remaining continuously at work or suffering- months or 
years of layoff.

3. Promotional opportunities. In most industrial settings, 
seniority determines which of several qualified employees 
will be awarded a promotional opportunity, and conversely 
which will be able to retain a preferred job when it is 
necessary that some be reduced to lower-paying jobs. The 
employee who is denied two years’ seniority will wait 
longer to secure promotions, and will be “bumped” more 
quickly to lower-paying jobs during periods of reduced 
employment.

4. Seniority for other competitive purposes. Seniority is 
also used to resolve other forms of employee competition. 
It is often used, for example, to determine which employees 
may take their vacations in the more desirable months, 
which employees will work the day shift rather than the 
night shift, and which employees will have first opportunity 
to perform overtime work (or, for that matter, which will 
have the right to refuse overtime work). In industries such 
as air, rail and trucking, seniority is also used to deter­
mine which employees will have the most attractive 
“ runs.” It is self-evident that in all of these respects, the 
denial of two years’ seniority may substantially affect the 
work opportunities and life-style available to an employee.

The only way a discriminatee can be made whole is to 
give him the seniority date he would have had but for the



26

refusal to hire him. That “ rightful place” remedy not only 
effectuates Congress’ desire lhat discriminatccs be made 
whole, it also preserves the integrity of seniority systems. 
Unions and employees have favored seniority as the deter­
minant of employee competition because it furnishes an 
objective and equitable basis for allocating employment 
opportunities. But the system remains equitable only if 
all employees are given their proper seniority measure. 
Equity does not exist if some employees have had their 
seniority artifically reduced by the employer’s discrimina­
tory behavior. Reflecting this reality, the “ rightful place” 
remedy has long been deemed an implicit part of collec­
tively bargained seniority. When employees are discharged 
in violation of contract, unions invariably demand that they 
be reinstated without interruption of seniority, and arbi­
trators invariably grant that remedy.30

The correctness of this result in Title VII cases is fur­
ther confirmed by the decisions under § l° ( c)> the 
remedy provision of the N UR A, upon which Title VII s 
remedial provision “ was expressly modeled.” Albemarle, 
43 L.W. at 4884. The Board invariably awards “ rightful 
place” seniority to applicants discriminatorily denied 
employment. In Phelps Dodge Corp v. NLRB, 313 U.S. 
177 (1941), this Court affirmed an NLRB order requir-

30 “ An employee who is discharged but later reinstated through 
the grievance procedure . . .  is to have the work days he lost ap­
plied to his seniority.” PM. Northwest Co., 42 L.A. 961, 964 
(Daniel Lyons, 1964). See also, Jordanos Markets, Die., 63 LA 
345, 350 (Marshal) Ross, 1974) (“ full seniority” ) ; BASF Wyan­
dotte Corp., 63 LA 121, 126 (Elliot Beitner, 1974) (“ with full 
seniority” ) ; Inland Lumber Co., 62 LA 1151, 1154 (Henry 0. Mil- 
moth, 1974) (“ without loss of seniority” ) ; North American Bock- 
well Corp., 62 LA 901, 909 (Martin E. Conway, 1974) (“ with 
complete seniority” ) ; Amoco Oil Co., 61 LA 10, 14 (Bernard 
Cushman, 1973) (“ with seniority rights unimpaired” ).



27

f ta , applicants who had hoop discriminatorily do-
° aw„rfied iobs “ without prejudicenied employment be awarded ,1 ,, iq

“  thoir seniority or other rights and privileges. 1 
NLRB 547, COO (19»). In e x p la in in g  v*y 1 10 oar '•> 
power to order “  reinstatement" of rejected app .cants, s 
Court declared: “ E x p e r ie n c e  having demolish at 
d isc r im in a tio n  in hiring is  twin to discrimination nr firm .., 

it would indeed  he surprising if  C o n g ic s s  g a re . 
for the one which it denied for the otliei. -

T„ Nevada CoveolUated Copper Corp., 26 NLRB U ® . 
4231 0  040), enforced, 316 V S . 1 »  ( « ) ,  the Board made 
more explicit the reined, to which discriminator,lyie- 
jected applicants were entitled: “ the same or substantially 
equivalent positions at which they would have been em­
ployed, including any seniority or oilier ngh s oi pi 
higes they would have acquired had U,e respondent not 
unlawfully discriminated against them.

We have shown thus far that Title VII does not
awards of seniority which put disenr.nn^e.s in 0 
rightful place. A related question is to what exten 
district courts retain discretion to withhold the remedy on 
the basis of countervailing considerations in 
cases. Here, too, as Albeonarle. explained, the Nl-R 
vidcs important guidance, for we “ may assume that Co 
gross was aware that the Board, since its inception,

631, 635 (1968, , ^  ™
135 NLRB 1222, 1223 (1362); At T c i r .  1962):
NLRB 1328, 1330 ( 1 9 “ ) , M  R B U 13  1U5 (1950), enforced, 246

S ' s  W ) ; PacificAm»U « * " • « "
98 NLRB 582, 601 (1952).



28

awarded [‘rightful place’ seniority remedies] as a matter 
of course—not randomly or in the exercise of a standard­
less discretion, and not merely where employer violations 
are peculiarly deliberate, egregious or inexcusable.” 43 
L.W. at 4S85.32

In sum, the “ rightful place” remedy has always been rec­
ognized as an integral component of an equitable seniority 
system. It must be awarded if employees are to be made 
whole for the discrimination they have suffered. It is in no 
sense “ preferential.” 33 It is, accordingly, wholly consis-

32 In light of this standard, we think there could be few, if any, 
cases where there would be justification for denying a discriminatee 
his “ rightful place” seniority for fringe benefit, layoff, recall, pro­
motion or demotion purposes (categories 1, 2 and 3 discussed at 
pp. 24-25, s u p r a ) .  There might be instances, however, where a court 
could justifiably conclude that it would be unfair to permit the 
immediate full use of “ rightful place” seniority for the types of 
purposes listed in category 4, supra. For example, if all employees 
are required at the outset of their employment to endure adverse 
working conditions (e.g., night shift, undesirable runs, etc.), it 
might he a windfall to allow one to escape those conditions al­
together. Of course, even for these purposes it would be necessary 
to invest the discriminatee with his full seniority after some initial 
“ running of the gauntlet,” lest he be forever deprived of the more 
desirable working conditions available only to the most senior 
employees.

33 Ironically, the court below had no difficulty recognizing the 
propriety of the rightful place remedy in that portion of this case 
which is not before this Court. Those employees who had been clis- 
criminatorilv assigned at the time of hire were awarded the right 
to transfer with company seniority, so that they would be able to 
reach the jobs in their new departments which they would he hold­
ing had they never been discriminated against. 495 F.2d at 414-417. 
The “ rightful place theory dictates that we give the transferring 
discriminatee sufficient seniority carryover to permit the advance­
ment he would have enjoyed, and to give him the protection against 
layoff he would have had, in the absence of discrimination.” Bimj 
v. Roadway Express, Inc., 435 F.2d 441, 450 (5th Cir. 1973).



btcssmmci&mu

29

tent with the congressional objectives embodied in Title 
VII.33*

As we have shown, analysis of this case from the proper 
perspective—first identifying the dual congressional objec­
tives, and then evaluating the remedy sought in light of 
those objectives—-leads to the same result in this case as 
petitioners reach, albeit by a different path. But as we 
noted at the outset, the importance of articulating the cor­
rect analytical standard lies in its impact upon other cases, 
presenting a different issue, which are already reaching 
this Court’s doorstep. So that the Court is aware of that 
other issue, and its ramifications, we briefly describe it in 
the. next section.

C. T he “ L ast I n , F irst  O u t ”  L ayoff Cases, and t h e  I m­
plications  of t h e  Congressional D eterm ination  to 
P reclude “ referential T reatm ent

In recent years, as the nation has entered a recession 
and employees have begun to be laid off in large numbers, 
a new Title VII issue has arisen. Young minority and fe­
male workers are contending that they should be afforded

Accord: R o b in s o n  v. L o r i l a r d  C o r ]) . , 444 F.2d 791, 795-800 (4th 
Cir. 1971) ; U .S . v. B e t h l e h e m  S t e e l  C o r p . ,  44G F.2d 652, 660-661 
(2nd Cir., 1971) ; U .S . v. N .L .  I n d u s t r i e s ,  Inc.., 479 F.2d 354, 374- 
375 (8th Cir., 1973) ; B o iv c  v. C o lg a t e  P a l m o l i v e  C o . , 489 F.2d 896, 
901 (7th Cir. 1973) ; T h o r n t o n  v. E a s t  T e x a s  M o t o r  F r e i g h t ,  497 
F.2d 416, 419 (6th Cir. 1974); E E O C  v. D e t r o i t  E d i s o n  C o . , 10 
FEP Cases 239, 250 (6th Cir. 1975).

As explained in the Brief for the United States and the Equal 
Employment Opportunity Commission as Amici Curiae, p. IS, this 
statement is not applicable to discriminatory refusals to hire prior 
to the effective date of the Act (July 2, 1965), as Congress made 
a deliberate judgment to preclude “ rightful place” remedies for 
pre-Act discrimination. In the instant ease the discrimination oc­
curred after the effective date of the Act, and thus that exception 
has no application here.



special seniority protections against layoff, not because 
they themselves have been discriminated against, but be­
cause discrimination against others has produced a situa­
tion in which preferential protection against layoff is the 
only way to preserve racial or sexual balance in the work­
force.

The decision which has fueled the controversy is Wat­
kins v. United Steelworkers of America, 369 F.Supp. 1221 
(E.D. La., 1973), pending on appeal to the Fifth Circuit as 
No. 74-2604. In Watkins, the company historically bad 
hired only white employees, but in recent years began lur­
ing young blacks as they graduated high school and entered 
the job market. The company came upon hard times, and 
found it necessary to lay off half of its workers. Lndor the 
terms of the collective bargaining agreement, layoffs were 
made in inverse order of seniority. Only those employees 
who had been hired before 1952 were kept at work. All 
whites hired thereafter, and all the blacks hired in recent 
years, -were laid off.

The recently-hired blacks instituted an action contend­
ing that the company had violated Title VII by laying them 
off. These employees did not contend that they had suffered 
any prior discrimination; indeed, they conceded that they 
had been hired as soon as they applied. They noted, how­
ever, that the company had discriminatorily refused to hiie 
a prior generation of blacks, and thus that there were no 
blacks in the workforce with sufficient seniority to survive 
the layoff. They sought a remedy which would keep them­
selves at work, while requiring the layoff of whites who had 
been hired in 1951. They reasoned that this remedy was 
appropriate in order to preserve the integrated character
of the workforce.

The district court ruled in favor of the plaintiffs. It di-

30



31

vected the company to establish separate black and "hite 
seniority lists, and to lay off employees separately from 
those two lists in sucli a manner that, the percentage of 
black employees in the workforce would remain the same 
after layoff as before. The practical effect of the district 
court’s order, of course, was to provide a seniority pref­
erence to young black workers over whites who had been 
hired before they were born.

The district court’s ruling in Watkins is an example of 
what Congress intended not to allow under Title VII, 
and what $$ 703(h) and (j) were enacted to make doubly 
sure could not occur. Manifestly, the plaintiffs in Watkins 
were not being awarded their “ rightful place”—they were 
already in their “ rightful place”—but rather were being 
given special rights to make up for the fact that their 
ancestors had been victimized by the company’s prior dis­
crimination. The district court acknowledged that its rem­
edy was “ preferential,” and that the beneficiaries would 
be “ persons other than those who were victims of the origi­
nal discrimination.” 369 F.Supp. at 1231. But the court 
thought these objections were outweighed by the need “ to 
insure that, because the Company hired no blacks for 
twenty years, the plant will not operate without black em­
ployees for the next decade.” Ibid.

The courts of appeals—including the Seventh Circuit m 
the Waters case now pending on petition for certiorari 
have rejected the Watkins analysis, and have construed 
Title VII as not authorizing remedies for those who cannot 
prove that they have suffered discrimination.34 These 
courts have concluded that Congress did not intend the

34 Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1317-20 (7th 
Cir. 1974), petition for certiorari pending, No. 74-1064; Jersey



32

courts to deprive senior employees of tlieir jobs in order 
to make room for junior minority and female employees 
who, although not themselves the victims of discrimination, 
seek reparations for discrimination visited upon others.

These appellate repudiations of the Watkins holding de­
rive additional support from the courts’ universal rejec­
tion of preferential seniority remedies in the one other 
context in which, they have been sought. In several of the 
discriminatory assignment cases (see pp. 28-29, n. 33, supt a), 
discriminatces have sought remedies which would y i cl cl
them a seniority status superior to their rightful place. 
The courts have rejected those requests, and awarded the 
discriminatces only rightful place seniority. In Quarles v. 
Philip Morris, Inc., 279 F.Supp. 505 (E.D. Va. 1968), 
Judge Butzncr, declaring that “ the [legislative] history 
leads the court to conclude that Congress did not intend to
require ‘reverse discrimination,’ ” id. at 516, rejected a 
portion of plaintiffs’ proposed remedy which “ would pre­
fer Negroes even though they might have less seniority 
than whites. Nothing in the Act indicates this result was
intended.” Id. at 519. Similarly in Bing v. Roadway Ex­
press, Inc., 485 F.2d 441, 451 (5th Cir. 1973), the court re­
jected a proposal which would have yielded discriminatces 
“ more seniority than they would have had in the absence 
of discrimination.” Accord: Thornton v. East Texas Motor
Freight, 497 F.2d 416, 420 (6th Cir. 1974); Rodriguez v.

Pourr Central cO Light Co. v International Bhd. of Electrical 
Workers, 508 F.2d 687, 705-710 (3rd Cir. 1975); U.S. v. Local 
189, United Papermakers, 416 F.2d 980, 994-995 (5tli Cir. 1969) 
(dictum), cert, denied, 397 U.S. 919 (1970). Accord: Cox v. Allred 
Chemical Corp.. 392 F. Supp. 309, 318-320 (M.D. La. 1974). 
Contra: Log v. City of Cleveland. 8 FEP Cases 614 (N.D. Ohio 
1974); Delay v. Carling Brewing Co., 10 FEP Cases 164 (N.D. Ga. 
1974); Schaefer v. Tannian, 10 FEP Cases 897 (E.D. Mich. 1975).



i.

East Texas Motor Freight, 505 F.2d 40, G3-64 and n. 30 
thereat (5th Cir. 1974).

II. This Case Should Not Be Decided on the Basis of 42 
U.S.C. § 1931.

A. As an alternative ground for reversal petitioners in­
voke §1 of the Civil Nights Act of 1806, 42 U.S.C. §1981. 
They contend that § 1981 was violated by the refusal to 
hire them and that the appropriate remedy for that viola­
tion is not affected by § 703(h) of the 1964 Act. As we have 
shown, petitioners are entitled to prevail in this case be­
cause neither § 703(h) nor any other provision of the 1964 
Act prevents giving “ rightful place” seniority to an indi­
vidual who was denied a job because of his race. It is 
therefore not necessary to consider in this case the in­
terrelationship between the 1866 and 1964 statutes. And 
it would be entirely inappropriate to decide this case on 
the basis of the earlier Act because petitioners relied exclu­
sively on the 1964 Act when, in the court of appeals, they 
challenged the district court’s denial of seniority credit. 
The court of appeals’ failure to discuss §1981, which 
petitioners criticize here (hr. 40) is therefore readily un­
derstandable. As this Court stated in an earlier civil rights 
case, Adict.es v. S. II. Kress and Co., 398 U.S. 144, 147, n. 
2 (1970):

“ "Where issues are neither raised before nor con­
sidered by the Court of Appeals, this Court will not 
ordinarily consider them. Lawn v. 1 nited States, 355 
U.S. 339, 362-363, n. 16 (1958); Ilusty v. United States, 
282 U.S. 694, 701-702 (1931); Duignan v. United States, 
274 U.S. 195, 200 (1927). W’< decline to do so here.”

B. "While we submit that no question under the 1800 Civil 
Rights Act need or should be reached in this ease, we briefly 
state our understanding ot that statute and its relationship

33

\

a
4

\



34

to the 1964 Act. Here again, our views differ from those of 
the petitioners, although not in a .manner which would 
affect the outcome of the present action. In Johnson v. Rail­
way Express Agency, Inc., 43 L.W. 4623, 4625 (May 19, 
1975), this Court joined the courts of 'appeals which had 
held “ that 4 1981 affords a federal remedy against dis­
crimination in private employment on the basis of race,” 35 
and declared that “ [a]n individual who establishes a cause 
of action under § 1981 is entitled to both equitable and legal 
relief, including compensatory and, under certain circum­
stances, punitive damages.”

Where, as here, individuals have been refused a job be­
cause of their race, the award to them of “ rightful place” 
seniority is, for the reasons stated at pp. 24-29 supra, 
“ suitable” (42 U.S.C. §1988). Therefore, there is no in­
consistency in this case between the remedial provisions of 
the 1866 Act (§3 of which is now 42 U.S.C. § 1988)36 and 
any provision of the 1964 Act. Conversely, there is no con­
flict between the two statutes with respect to the individual 
who, as in the Watkins-type, situation, has not been dis­
criminated against on the basis of race. This is true be-

35 Since the present case involves discrimination in hire, we have 
no occasion to discuss the scope of the substantive right created 
by § 1981 with respect to employment matters other than refusal 
to hire. That question is raised in the Cross-Petition for Certiorari 
in the W a t e r s  litigation, United Order of American Bricklayers, 
etc. v. Waters, No. 74-1350, pp. 2, 17.

30 Section 1988 provides:
The jurisdiction in civil and criminal matters conferred on 

the district courts by the provisions of this chapter and Title 
18, for the protection of all persons in the United States in 
tlieir civil rights, and for their vindication, shall be exercised 
and enforced in conformity with the laws of the United States, 
so far as such laws are suitable to carry the same into effect; 
but in all cases where they are not adapted to the object, or



p — ■*.

35

cause one who is not a discriminatee has no cause of 
action under the 1866 Act. Plainly, the basic policy of 
Title VII against giving anyone preference in employment 
because of his race is that of the 1866 Act as well, as 
appears from the language of §1, “ all persons * * * 
shall have the same right * * * as is enjoyed by white 
citizens * * That the 1866 and 1964 Acts, whatever their 
other differences (cf. Johnson, 43 LAV. at 1625), are 
identical in this particular was well stated by the Court of 
Appeals for the Sixth Circuit in Long v. Ford Motor Go., 
496 F.2d 500, 505 (1974) (footnotes omitted) :

“Section 1981 is by its very terms, however, not an 
affirmative action program. It is an equalizing provi­
sion, seeking to ensure that rights do not vary accord­
ing to race. It does not require that persons be ac­
corded preferential treatment because of their race. 
On this point we view the Supreme Court’s discussion 
of Title VII as applicable to Section 1981:

‘Congress did not intend by Title VII, however, to 
guarantee a job to every person regardless of quali­
fications. In short, the Act does not command that 
any person be hired simply because he was formerly 
the subject of discrimination, or because he is a mem­
ber of a minority group. Discriminatory preference 
for any group, minority or majority, is precisely and 
only what Congress has proscribed. What is required

are deficient in the provisions necessary to furnish suitable 
remedies and punish offenses against law, the common law, as 
modified and changed by the constitution and statutes of the 
State wherein the court having jurisdiction of such civil or 
criminal cause is held, so far as the same is not inconsistent 
with the Constitution and laws of the United States, shall be 
extended to and govern the said courts in the trial and dis­
position of the cause, and, if it is of a criminal nature, in the 
infliction of punishment on the party found guiltv. (R. S. 
§722.)

 ̂ \



36

by Congress is the removal of artificial, arbitrary, 
and. unnecessary barriers to employment when the 
barriers operate invidiously to discriminate on the 
basis of racial or other impermissible classification. 
Griggs v. Duke Power Co., 4-01 U.S. 424, 430-431.”

CONCLUSION
For the reasons stated above, the decision below should

be reversed.

J .  A lbert  W oll 
R obert C. M ayer 

736 Bowen Bldg.
815 Fifteenth St., N.W. 
Washington, D.C. 20005

L aurence G old
815 Sixteenth Street, N.W. 
Washington, D.C. 20003

Attorneys for AFL-OIO

Respectfully submitted,
M ich a el  H. G ottesm an , 
E llio t  B kedhofe,
R obert M. W einberg ,

1000 Connecticut Ave., N.W. 
Washington, D.C. 20036

B ernard K l eim a n ,
Carl F ranker ,

Five Gateway Center 
Pittsburgh, Pa. 15222

J erome A . C ooper,
J o h n  C. F alkenbebry ,

409 North 21st Street 
Birmingham, Ala. 35203

J ames W . D orsey,
100 Peachtree Street, N.W. 
Atlanta, Georgia 30303

Attorneys for USWA