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DISTRICT OF KENTUCKY 
DIVISION

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES..................................... ii-iv

INTRODUCTION .............................................  1

COUNTERSTATEMENT OF ISSUES PRESENTED ....................  2

COUNTERSTATEMENT OF THE C A S E ............................. 3-15

ARGUMENT
I. Section 703(h) of Title VII Immunizes 

duPont's Seniority System from All of
Appellants' Attacks upon It___________  . . . .  16-38
A. Section 703(h) of Title VII Immu­

nizes Seniority System from the 
Claim That They Perpetuate Past 
Discrimination . . . . 16-23

B. The duPont Seniority System Is Not 
Pretextual, But Is a Bona Fide Sen­
iority System Created by the Normal 
Processes of Collective Bargaining . . . 24-36

C. Reliance upon 42 U.S.C. §1981 Cannot 
Avoid the Immunity Granted by §703(h) 
of Title VII as Construed in Teamsters. . 37-38

II. Williams' Claim as to Testing Require­
ments for Promotions Is Barred by Evans 
v. United Air Lines . . . 39-40

Ill. The EEOC's Contentions as to Hiring Are 
Barred Because They Are Beyond the Scope 
of Its Determination . . • 40-46

CONCLUSION 46



►

TABLE OF AUTHORITIES

Acha v. Beame, 570 F.2d 57 (2nd Cir. 1978)............. 23
California Brewers Ass'n v. Bryant, ____ U.S. ____, 63
L .Ed.2d 55 (1980)........................................ 36
Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.
1976), cert, denied, 431 U.S. at 965, 53 L.Ed.2d
1060, 97 S.Ct. 2920 (1977).............................  37
Croker v. Boeing Co., (Vertol Div.), 437 F.Supp.
1138 (E.D. Pa. 1977)..................................... 29
Detroit Police Officers Assn1 v. Young, 608 F.2d
671 (6th Cir. 1979) cert, pending....................... 28
Edmonds v. Southern Pacific Trans. Co., 19 FEP 1052 
(N.D. Cal. 1979)......................................... 37
EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977), 
cert, denied, 435 U.S. 915, 55 L.Ed.2d 506, 98 S.Ct.
1468 (1978)..............................................  41-45
EEOC v. E. I. duPont de Nemours & Co., Chestnut Run,
373 F.Supp. 1321 (D. Del. 1974) aff'd, 516 F.2d
1297 (3rd Cir. 1975)....................................  44
EEOC v. E. I. duPont de Nemours & Co., Chestnut Run,
445 F.Supp. 223 (D. Del. 1978).......................... 22
EEOC v. Federated Mut. Ins. Co., 16 FEP Cases 820
(N.D. Ga. 1977)..........................................  43-46
EEOC v. Honeywell, Inc., 73 FRD 496 (N.D. 111. 1977)... 44
EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 
(6th Cir. 1975), cert, denied, 423 U.S. 994,
46 L.Ed.2d 368, 96 S.Ct. 420..............................  44
EEOC v. National Cash Register Co., 405 F.Supp.
562 (N.D. Ga. 1975)......................................  44
Ferguson v. Mobil Oil Corp., 443 F.Supp. 1334
(S.D.N.Y. 1978), aff'd, 607 F.2d 995 (2nd Cir. 1979)... 44
Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527
(5th Cir. 1980)..........................................  22, 23
Fovler v. Birmingham News Co., 608 F.2d 1055 (5th
Cir. 1979)...............................................  39

Cases Page

[ii]



Cases Page
Garner v. E. I. duPont de Nemours & Co.,
2 FEP Cases 60 (W.D. Ky. 1969)..........................  7
General Telephone Co. v. EEOC, ____ U.S. _____ ,
48 U.S.L.W. 4513 (May 12, 1980)......................... 44
Griffin v. Copperweld Steel Co., 22 FEP Cases 1113
(N.D. Ohio 1979).........................................  29, 30
Harris v. Anaconda Aluminum Co., 479 F.Supp. 11
(N.D. Ga. 1979)..........................................  33
Hodge v. McLean Trucking Co., 607 F.2d 118 (5th
Cir. 1979)...............................................  39
International Brotherhood of Teamsters v. United 
States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct.
1843 (1977)..............................................  14, 16-25, 28,

31, 32, 34, 35, 
37, 38, 40

James v. Stockham Valves & Fittings Co., 559 
F .2d 310 (5th Cir. 1977), cert, denied, 434 U.S.
1034, 54 L.Ed.2d 781, 98 S.Ct. 767 (1978)..............  24, 25
Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471
(4th Cir. 1978) cert, denied, 440 U.S. 979, 60 L.Ed.2d
239, 99 S.Ct. 1785 (1979)...............................  37
Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975). 27
McDonnell Douglas Corp.v. Green, 411 U.S. 792, 36 
L .Ed.2d 668, 93 S.Ct. 1817 (1973)....................... 27
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978) 
cert, denied, 441 U.S. 906, 60 L.Ed.2d 375, 99 S.Ct.
1995 (1979)..............................................  23, 27
Patterson v. American Tobacco Co., 586 F.2d 300
(4th Cir. 1978)...................   23
Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 
(5th Cir. 1978) cert, denied, 439 U.S. 1115,
59 L.Ed.2d 74, 99 S.Ct. 1020 (1979)....................  37, 38
Quarles v. Phillip Morris, Inc., 279 F.Supp. 505
(E.D. Va. 1968)..........................................  8
Queen v. Dresser Industries, Inc., 21 FEP 761
(D.Md. 1978).............................................  37

[iii]



Cases Page
Sears v. Atchison, Topeka & Santa Fe Ry.Co., 454
F.Supp. 158 (D.Kan. 1978)...............................  34
Swint v. Pullman-Standard Co., 17 FEP Cases 730
(N.D. Ala. 1978).........................................  25, 33
Trabucco v. Delta Airlines, 590 F.2d 315 (6th
Cir. 1979)................ ...............................  39
Trans World Airlines, Inc, v. Hardison, 432 U.S.
63, 53 L.Ed.2d 113, 97 S.Ct. 2264 (1977)...............  28, 29, 35
United Airlines, Inc, v. Evans, 431 U.S. 553,
52 L.Ed. 2d 571, 97 S.Ct. 1885 (1977)...................  14, 16, 20-24

28, 33, 34,
39 - 40

U.S. v. East Texas Motor Freight System, 564 F.2d 179 
(5th Cir. 1977)..........................................  37
Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597,
96 S.Ct. 2040 (1976)..................................... 28
Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309 (7th Cir. 1974) cert, 
denied 425 U.S. 997, 48 L.Ed.2d 823, 96 S.Ct.
2214 (1976)..............................................  37
Watkins v. United Steel Workers, Local 2369, 516 
F .2d 41 (5th Cir. 1975).................... ............  37
Williams v. DeKalb County, 577 F.2d 248, modified,
582 F.2d 2 (5th Cir. 1978)..............................  29
Winfield v. St. Joe Paper Co., 20 FEP Cases 1103
(N.D. Fla. 1979).........................................  25, 26, 29-

30, 33
Younger v. Glamorgan Pipe & Foundry Co., 20 FEP
Cases 776 (W.D. Va. 1979) aff'd, No. 79-1492 (4th
Cir. , May 9, 1980)....................................... 22
Statutes
Civil Rights Act of 1866, 42 U.S.C. §1981..............  29, 37-38
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e-2 (h).................................... 18, 27

[iv]



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 80-3177

JOHN R. WILLIAMS, et al. APPELLANTS
v.
E. I. duPONT de NEMOURS

& COMPANY, et al. APPELLEES

consolidated with 
NO. 80-3176

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION APPELLANT

v.
E. I. duPONT de NEMOURS 

& COMPANY, et al. APPELLEES

BRIEF FOR APPELLEE,
E . I. duPONT de NEMOURS & COMPANY

May It Please the Court:
This is a Title VII case in which a class of 134 

black employees and the EEOC have each asserted that the 
collectively bargained seniority system administered by 
duPont and the Union perpetuates the effects of past dis­
crimination. The District Court entered summary judgment, 
correctly concluding that intervening decisions of the U.S. 
Supreme Court preclude granting Appellants' claims for 
relief.



COUNTERSTATEMENT OF ISSUES PRESENTED

The questions presented by this appeal are:

1. Did the District Court properly enter summary judgment 
on Appellants' claim that duPont's seniority system 
perpetuates past discrimination?

2. Did the District Court properly enter summary judgment 
on Appellants' claim that duPont's seniority system is 
not bona fide within the meaning of §703(h) of Title 
VII, 42 U.S.C. §2000e-2(h)?

3. Did the District Court properly enter summary judgment 
on so much of Williams' complaint as was based juris- 
dictionally upon 42 U.S.C. §1981?

4. Did the District Court properly conclude that Williams' 
charge as to duPont's testing for promotions was barred 
by the 180 day statute of limitations for filing 
charges with the EEOC?

5. Did the District Court property conclude that so much 
of the EEOC's complaint as contests duPont's current 
hiring practices is barred because it was beyond the 
scope of the EEOC's investigation, determination and 
conciliation and was not like or related to the claims 
alleged in the charges?

DuPont submits that each of these questions must be answered 
affirmatively, and therefore that the summary judgment must 
be affirmed in all respects.

2



COUNTERSTATEMENT OF THE CASE
DuPont's Louisville Works was opened in 1942 as a 

United States Government installation [App. p. 572]. As 
with many defense plants opened during World War II, the 
Louisville Works was transferred by the government to the 
private sector some time after the conclusion of that War 
[Id.].

On December 23, 1953, the Neoprene Craftsmen Union 
was certified by the National Labor Relations Board as the 
bargaining representative of persons employed by duPont in 
the appropriate bargaining unit [App. p. 276]. The first 
collective bargaining agreement between duPont and the Union 
was effective April 16, 1954 [App. p. 114 and 608]. That 
agreement contained a typical seniority system for the 
allocation of employment perquisites on the basis of con­
tinuous service with the company.

The agreement recognized both plant seniority and 
unit seniority and specifically provided that for the first 
six months after an employee transferred into a new unit, 
his seniority protection for purposes of promotion within 
and layoff from the unit commenced only with his date of 
entry into the unit. After six months' continuous service 
in the unit, his unit seniority became synonomous with his 
plant seniority. Accordingly, any employee chosen to trans­
fer into a new unit suffered a diminution of seniority

I
/

3



protection for six months following his transfer. Further­
more, the agreement made no provision for transfer between 
units on the basis of seniority. Under the 1954 agreement
such transfers were decisions made by management.

The second collective bargaining agreement between 
duPont and the Union, which became effective on April 16, 
1956, built upon the typical seniority system incorporated 
in the initial, 1954 agreement [App. pp. 120-21]. Specif­
ically, management surrendered its prerogative of deciding 
transfers and agreed to a contractual provision permitting 
bidding on job unit transfers using plantwide seniority as 
one of the criteria by which the successful bidder would be 
chosen [App. pp. 48-49]. In addition to plantwide seniority 
pursuant to this seniority system, however, duPont also 
required a high school diploma for transfer into certain of 
its job units and required a passing score on the then- 
prevailing written tests [App. p. 118]. Promotions within 
the various job units, as well as some job benefits (such as 
vacation schedules), continued to be governed by unit 
seniority.

third collective bargaining agreement between duPont and the 
Union, which became effective on April 16, 1958 [App. p. 
117]. It was this agreement which, for the first time, 
created Master Seniority Divisions denominated Engineering, 
Operations, Utility and Classified. Bidding on transfers to

The seniority system was further altered by the

4



new job units, as well as protection against layoff, con­
tinued to be governed by plantwide seniority; and promotions 
within any of the job units in the four Divisions, as well 
as certain fringe benefits, continued to be governed by unit 
seniority. The 1958 agreement fixed unit seniority accord­
ing to the roster in effect on May 18, 1956, and any unit 
seniority earned thereafter. This system of Master Division 
Seniority prevailed, with only minor changes, in the ensuing 
collective bargaining agreements effective April 16, 1961, 
February 15, 1963, February 15, 1965, September 23, 1968,
and April 20, 1971. Accordingly, this was the system in
effect when the charges which initiated this litigation were 
filed with the EEOC in 1971.

The present effect of this seniority system upon 
the 134 black persons who are members of the Williams class 
arises from two of duPont's prior employment practices. 
First, for a period of time prior to the effective date of 
Title VII, duPont assigned all its newly hired black em­
ployees to a group of jobs informally known as "classified" 
which, in the 1958 agreement, became the Classified Sen­
iority Division [Id.]. This disparate treatment has long 
since been discontinued, but Appellants allege it is cur­
rently perpetuated by the provisions of the otherwise neu­
tral seniority system described above. Second, the now- 
discontinued requirement of a high school diploma for trans­
fer into the Engineering and Operations Master Seniority

5



Divisions, together with the written tests which were then 
administered as prerequisites to such transfers, are alleged 
by Appellants to have had a disparate impact upon black 
employees; and Appellants allege this disparate impact is 
also perpetuated today by the operation of the otherwise 
neutral seniority system described above.

DuPont's seniority system was first attacked in 
1968 when charges were filed by several of its black em­
ployees with the Equal Employment Opportunity Commission 
[App. pp. 28-37]. Upon receipt of a right-to-sue letter 
from the Commission, suit was filed by these employees 
against both duPont and the Union on October 1, 1968 [Id.].

On November 15, 1968, the District Court referred 
the matter to the Kentucky Commission on Human Rights for an 
investigation and an attempt to conciliate the matter. The 
Kentucky Commission filed a report with the District Court 
in which it said the following:

After numerous joint meetings with the Plain­
tiffs, the Company and the Union, as well as a 
series of individual meetings with each of the 
named parties, it was generally agreed by all 
parties and the Commission that since 1956 when 
the Company and the Union negotiated a provision 
in their Collective Bargaining Agreement providing 
for transfer from Division to Division by a bid­
ding process, there has been no evidence of any 
violation of Title VII of the Civil Rights Act of 
1964. However, in an attempt to make any and all 
adjustments for the members of the class repre­
sented by the Plaintiffs, who were hired prior to 
the establishment of the bidding process in 1956, 
and who, therefore, were or could have been ad­
versely affected by the lack thereof, the under­
signed met with the Plaintiffs and the Company to

6



study ways resolving and conciliating the matter.
[App. p. 277.]

The conciliation efforts of the Kentucky Commission resulted 
in a judgment tendered to the District Court jointly by 
counsel for the Plaintiffs and counsel for duPont on July 
10, 1969 [App. pp. 267-71]. In substance, members of the 
class of black persons employed by duPont prior to the 
effective date of Title VII were entitled by the judgment to 
use their plant seniority in a number of ways so that the 
allegedly disparate impact of the seniority system was 
considerably lessened as to them. See, Garner v . E . I. 
duPont de Nemours & Co., 2 FEP Cases 60 (W.D. Ky. 1969). An 
appeal was taken from this judgment by some members of the 
class (including some of the named plaintiffs who were 
represented by some of the same counsel as are representing 
them in this case), but the appeal was dismissed by this 
Court on November 28, 1979 [App. p. 275].

Despite the provisions of the judgment entered by 
the District Court in 1969, the Appellant Williams filed a 
charge with the EEOC on January 13, 1971 [App. pp. 209-10]. 
In May of 1971, another 17 charges were filed with the EEOC 
[App. pp. 211-30], and they were all consolidated for in­
vestigation and conciliation by the EEOC [App. pp. 326-28]. 
Not one of these 18 charging parties claimed that he had 
been denied a particular promotion or job benefit because of 
his race within the 180 days preceding his charge. Instead,

7



each of the 18 complained that the seniority system al­
legedly perpetuated discriminatory practices which had 
occurred long prior to the filing of his charge. In fact, 
13 of the charges were worded identically:

Past discriminatory practices in job opportunities 
perpetuate in present opportunities for Negroes as 
a class. I have been discriminated agianst [sic] 
because of past discriminatory practices which 
denied Negroes as a class, job opportunities and 
now perpetuate as a disadvantage to negroes [sic].
[App. pp. 216-30.]

On October 20, 1972, the EEOC issued its Determi­
nation based upon its investigation of these individuals' 
charges. Like the charges, the Determination focused upon 
the allegation that the seniority system perpetuated past 
discrimination. Citing the seminal decision in Quarles 
v. Phillip Morris, Inc., 279 F.Supp. 505 (E.D. Va. 1968), 
the EEOC determined that the initial placement of newly 
hired black individuals in the Classified Master Seniority 
Division, together with the prohibitions against transfer 
which existed prior to 1956 and the impediments imposed upon 
transferring from that Division after 1956, constituted 
discrimination against the black employees which was being 
perpetuated into the present day by the otherwise neutral 
seniority system which had been collectively bargained 
between duPont and the employees' Union [App. pp. 326-28].

In July, 1973, Williams filed suit on behalf of a 
class defined in his Complaint as "134 Negro employees of

8



Defendant company whose plant-wide seniority dates are prior 
to July 2, 1965" [App. pp. 11-15]. Obviously, the class
which Mr. Williams sought to represent was identical to the 
class which Mr. Garner had represented in the case which was 
reduced to judgment in 1969 through a decree which sig­
nificantly altered duPont's seniority system in favor of 
those 134 employees.

Meanwhile, the seniority system was being attacked 
by yet another instrumentality of the United States govern­
ment, namely, the U.S. Atomic Energy Commission. The AEC 
was acting as compliance agent for the Office of Federal 
Contract Compliance in enforcing Executive Order 11246. 
DuPont negotiated with the AEC in an attempt to conciliate 
this allegation, just as it had conciliated Garner's alle­
gations in district court a few years before [App. pp. 
44-63]. The result of the conciliation between duPont and 
the AEC was that all of the 134 black employees were per­
mitted to use their plant seniority date as their Master 
Division and unit seniority dates so that the previous 
"lock-in" effect of the system was eradicated as to the 
whole class. Only benefit seniority (such as vacation 
schedules) was thereafter governed by unit seniority for 
these 134 blacks.

This settlement was embodied as an express provi­
sion of the collective bargaining agreement effective March 
22, 1974. That agreement, and all ensuing agreements,

9



provided in §20 of Article IV the following provisions for 
the 134 black employees who were members of the class in 
both Garner and the present litigation:

The 134 black employees hired prior to August 27, 
1962 shall have Master Division Seniority and Unit 
Seniority equal to Plant Seniority for the purpose 
of promotion to (except for those who do not 
qualify on a medical basis), demotion from and 
layoff from jobs in wage grades 9 and 10 (but not 
for other purposes) job vacancies in these wage 
grades to be filled on this basis after exhaustion 
of call-back lists, using minimum qualifications 
of the current job incumbents. [App. pp. 123-24.]

This agreement between the AEC and duPont was 
consummated in February of 1973. Within four months, Wil­
liams filed this class action in the District Court attack­
ing the seniority system anew [App. pp. 11-15]. Four months 
after that, the EEOC filed its bureaucratically drafted 
boilerplate complaint which accuses the defendants of vio­
lating Title VII in every imaginable respect [App. pp. 
64-68]. The two cases were were ultimately consolidated for 
pretrial proceedings [App. p. 330], and discovery ensued.

In their briefs, both Appellants have unabashedly 
accused duPont of obstructing the discovery process [EEOC's 
Brief, p. 6; Williams' Brief, pp. 14-15]. Of course, this 
is a somewhat tangential point (although the EEOC seems to 
contend that the alleged deficiencies in discovery are 
sufficient, standing alone, to warrant reversal of the 
summary judgment) [EEOC's Brief, p. 6]. Nevertheless, the

10



falsity of the Appellants' assertion deserves specific 
attention.

First, there is no question that duPont found some 
of the Appellants' discovery requests to be onerous or ir­
relevant, and duPont used the appropriate procedures pro­
vided by the Civil Rules to register those objections [App. 
pp. 392-98 and pp. 420-40]. Significantly, the District 
Judge upheld duPont in at least some of these objections 
[App. pp. 399-400]. It is also notable that duPont was not 
alone in objecting to discovery requests. Indeed, the EEOC 
sought to totally prevent duPont from deposing any employees 
of the EEOC and to limit duPont's discovery to written 
interrogatories and produced documents [App. pp. 90-92 and 
pp. 93-103]. Of course, such objections to discovery are 
routine. Indeed, the routine nature of such objections is 
precisely the point. For the Appellants to attempt to make 
such routine procedural matters into a separate appellate 
issue is, to say the least, an overstatement.

Furthermore, the volume of information supplied by 
duPont to the Appellants on discovery completely refutes the 
obstructionist motives which Appellants attempt to attribute 
to duPont. In the aggregate, - the Williams class and the 
EEOC served five sets of interrogatories upon duPont con­
taining literally hundreds of inquiries [App. pp. 69-71, pp. 
331-339, pp. 387-91, pp. 442-48 and pp. 493-99]. In addi­
tion, Requests to Admit were served upon duPont, to which

11



duPont appropriately responded [App. pp. 104-112 and pp. 
113-35]. The information supplied by duPont to the Ap­
pellants includes at least two computer printouts compiled 
by duPont for Appellants' use [App. pp. 359-83 and pp. 
473-92].

In addition, duPont responded to a request to 
produce all of its raw data relating to each transfer by 
each individual employee from 1950 to date by making that 
information available for inspection by attorneys for Ap­
pellants [App. p. 403]. That voluminous information, which 
was not computerized and was therefore manually compiled by 
duPont, was made available on January 19, 1977, but no
attorney for either the class or the EEOC made any effort to 
examine any of that information for a period of two years 
after it was made available [App. pp. 420-23 and p. 466]. 
Similarly, the objections made by duPont to certain discov­
ery requests went unchallenged by the EEOC for four years 
before a motion to compel discovery was filed with the Court 
by the EEOC [App. p. 405]. In light of these facts, the 
implication which Appellants seek to convey of duPont ob­
structing their vigorous discovery is something less than 
accurate.

Indeed, Appellants' lack of fidelity to the Record 
in this case is so egregious as to require some additional, 
separate comments. Both Appellants' briefs engage in mis­
statements and slanting of facts in an attempt by innuendo

12



to make it appear that duPont is guilty of active, present- 
day discrimination. For example, the EEOC's brief asserts 
that "no black employee had been hired into" the Engineering 
Seniority Division prior to 1972 [EEOC's Brief, pp. 7-8]. 
The fact is that no white employee had been hired into that 
Division prior to 1972, either. The reason, as the EEOC 
well knows from the Record in this case, is that all va­
cancies in the Engineering Division were filled by bidding 
pursuant to the seniority system and no one was newly hired 
into that division [App. p. 593]. Similarly, both the EEOC 
and the Williams class infer that white employees were 
permitted to transfer into the Engineering and Operations 
Divisions without taking the test which black employees were 
required to take as a prerequisite to a transfer [EEOC 
Brief, p. 8; Williams Brief, p. 5]. The facts, as the 
Appellants' know from the Record in this case, are that no 
employee —  black or white —  was permitted to transfer into 
those divisions after 1956 without taking the requisite test 
[App. p. 118]. Finally, the Williams Brief attempts to 
distinguish between the 134 black employees covered by the 
prior conciliation agreements and other black employees 
hired by duPont 25 years ago in an attempt to paint a pic­
ture of the current condition at duPont as being highly 
discriminatory:

Thus, except for the limited relief provided for
134 persons since 1973, a black employee who was

13



hired into the segregated Classified Seniority- 
Division 25 years ago and who now wishes to trans­
fer to a job in another division will have less 
Unit and Master Division Seniority in the new unit 
than either a white employee who was also hired 25 
years ago or a white employee who was hired into 
that unit yesterday. As a result, each of those 
white employees will be given preference over the 
25-year black employee in promotion, demotion, 
bumping, recall, overtime listing, work schedules, 
vacation schedules and job retention within the 
unit. [Williams Brief, p. 8.]

The fallacy of this florid assertion is that there are no 
black employees who were hired at duPont 25 years ago other 
than the 134 employees who are covered by the Garner judg­
ment and the AEC conciliation agreement and the special 
provision in all collective bargaining agreements since 
1974. For those 134 employees, plant seniority is the only 
competitive seniority criterion. Consequently, none of them 
are today "locked into" the Classified Division. What this 
case involves is claims for back pay by those 134 employees 
for promotions allegedly lost prior to the 1973 conciliation 
with the AEC, not any attempt to further modify the sen­
iority system for them.

While discovery was being pursued by the parties, 
the United States Supreme Court decided International Broth­
erhood of Teamsters v. United States, 431 U.S. 324, 52
L.Ed.2d 396, 97 S.Ct. 1843 (1977) and United Air Lines, Inc, 
v. Evans, 431 U.S. 553, 52 L.Ed.2d 571, 97 S.Ct. 1885 (1977). 
Since those two decisions completely disposed of both the 
Williams and EEOC complaints against duPont's seniority

14



system, duPont filed a motion for summary judgment [App. pp 
507-13]; and the district court granted that motion [App. p 
530]. This appeal followed.

15



ARGUMENT
I. Section 703(h) of Title VII Immunizes 

duPont's Seniority System from All of 
Appellants' Attacks upon It___________

A. Section 703(h) of Title VII Immu­
nizes Seniority System from the 
Claim That They Perpetuate Past 
Discrimination____________________

The central issue in this case is, and always has 
been, Appellants' charge that duPont's seniority system 
violates Title VII because it perpetuates the effects of 
discriminatory practices formerly employed at the Louisville 
Works. The U.S. Supreme Court has now dealt a mortal blow 
to that theory with its companion decisions in Teamsters, 
supra, and Evans, supra; and Appellants' briefs are there­
fore devoted to desperate attempts to evade the obvious 
application of those decisions to this case. However, an 
understanding of the Teamsters and Evans holdings leaves no 
doubt as to the correctness of Judge Ballantine's conclusion 
that those decisions completely dispose of Appellants' 
complaints.

In Teamsters, as in this case, the EEOC sued an 
employer and its union alleging that the company had dis­
criminated against Negroes (and Spanish-surnamed persons) 
prior to the enactment of the Civil Rights Act of 1964 by 
assigning them to lower-paying, less desirable jobs. The 
seniority system allegedly perpetuated the effects of this

16



pre-Act discrimination by discouraging transfers from those 
lower-paying job units to the better-paying job units.

The seniority system in Teamsters was similar to 
duPont's seniority system. Seniority for purposes of calcu­
lating fringe benefits such as vacations and pensions was in 
Teamsters measured from the date the person was employed by 
the company. However, for competitive purposes such as 
promotion and layoff, seniority in Teamsters was calculated 
only from the date the employee entered the particular 
seniority unit in which the job opening existed or the 
layoff occurred. The plaintiffs in Teamsters, like the 
plaintiffs herein, alleged that this type of seniority 
system discriminated against them because they would lose 
competitive seniority if they transferred to another sen­
iority unit.

In Teamsters, the district court and the court of 
appeals found that this system violated Title VII because it 
"locked" minority workers into the inferior job positions 
discriminatorily assigned to them before Title VII was 
enacted. "The linch-pin of the theory embraced by the 
District Court and the Court of Appeals" [431 U.S. at 344] 
was that an employee who was placed in a bargaining unit as 
a result of discriminatory hiring practices could never 
catch up to his fellow emloyees who were not discriminated 
against, and that the seniority system was therefore a 
continuing violation of Title VII.

17



However, the lower courts' analysis and holdings 
were contrary to an express statutory provision which Con­
gress had inserted into Title VII to protect seniority 
systems from precisely this kind of attack. Section 703(h) 
provides in pertinent part:

Notwithstanding any other provision of this 
title, it shall not be an unlawful employment 
practice for an employer to apply different stan­
dards of compensation, or different terms, condi­
tions, or privileges of employment pursuant to a 
bona fide seniority or merit system, ... provided 
that such differences are not the result of an 
intention to discriminate because of race, color, 
religion, sex, or national origin.... 42 U.S.C. 
§2000e-2(h).

Accordingly, in Teamsters the Supreme Court re­
versed the lower courts. The Supreme Court read §703(h) to 
be a grant of immunity to seniority systems such as the one 
involved in Teamsters and the one involved in the present 
case. The Supreme Court was well aware of the "lock-in 
effect" by which seniority systems perpetuate the effects of 
past discrimination. However, as the Court stated:

[Bjoth the literal terms of §703(h) and the legis­
lative history of Title VII demonstrate that 
Congress considered this very effect of many 
seniority systems and extended a measure of im­
munity to them. 431 U.S. at 350.

The Court reviewed the legislative history of Title VII in 
general and §703(h) in particular, and quoted from the 
Congressional Record as follows:

18



Title VII would have no effect on established 
seniority rights. Its effect is prospective and 
not retrospective. Thus, for example, if̂  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 employer1s obligation 
would be simply to fill future vacancies on a 
non-discriminatory 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 special seniority rights at the expense 
of the white workers hired earlier.

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 lay-offs, those who were 
hired last must be laid off first, such a provi­
sions 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 sen­
iority than Negroes. 431 U.S. at 350-51 (emphasis 
m  original).

The Court then stated its holding as follows:

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. Although a seniority system in­
evitably tends to perpetuate the effects of pre- 
Act discrimination in such cases, the congres­
sional judgment was that Title VII should not 
outlaw the use of existing seniority lists and 
thereby destroy or water down the vested seniority 
rights of employees simply because their employer 
had engaged in discrimination prior to the passage 
of the Act.

19



Accordingly, we hold that an otherwise neu­
tral, legitimate seniority system does not become 
unlawful under Title VII simply because it may 
perpetuate pre-Act discrimination. Id. at 352-54 
(emphasis added).

The import of the Teamsters holding for the pres­
ent case is obvious. Appellants' theory in this case is 
identical to the EEOC's theory in Teamsters. Accordingly, 
the District Court's entry of summary judgment should be 
affirmed.

The effect of Teamsters on the present litigation 
becomes more compelling when Teamsters is read in conjunc­
tion with United Airlines, Inc, v. Evans, supra, which was 
decided on the same day Teamsters was decided.

In Evans, a female flight attendant was forced to 
resign her position in 1968 due to her pregnancy. She was 
rehired as a new employee in February, 1972, but no sen­
iority credit was given for her prior employment. One year 
later (February, 1973), she filed charges with the EEOC 
alleging that United's seniority system discriminated 
against her because of her sex. Her theory was that her 
discharge due to pregnancy in 1968 was discriminatory and 
that the failure to give her seniority credit for this prior 
service perpetuated that discrimination. The Supreme Court 
was unpersuaded by her arguments, saying:

Respondent is correct in pointing out that 
the seniority system gives present effect to a

20



past act of discrimination. But United was en­
titled to treat that past act as lawful after 
respondent failed to file a charge of discrimina­
tion within 90 days then allowed by §706(d). [Now 
180 days under §706(e).] 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. It may 
constitute relevant background evidence in a 
proceeding in which the status of a current prac­
tice is at issue, but separately considered, it is 
merely an unfortunate event in history which has 
no present legal consequences 431 U.S. at 558 
(emphasis added).

[S]uch a challenge to a neutral system may not be 
predicated on the mere fact that a past event 
which has no present legal significance has af­
fected the calculation of seniority credit, even 
if the past event might at one time have justified 
a valid claim against the employer. A contrary 
view would substitute a claim for seniority credit 
for almost every claim which is barred by limita­
tions. Such a result will contravene the mandate 
of §703(h). 431 U.S. at 560.

When Teamsters and Evans are read together, it is 
clear that allegations that a seniority system perpetuates 
the effects of any past discrimination simply fail to state 
a claim on which relief may be granted. Indeed, this con­
clusion flows from the opinion in Teamsters itself. In 
footnote 30 of the Teamsters opinion, the Court held:

The legality of the seniority system insofar 
as it perpetuates post-Act discrimination nonethe­
less remains at issue in this case, in light of 
the injunction entered against the union. Our 
decision today in United Airlines v. Evans is 
largely dispositive of this issue. Evans holds 
that the operation of a seniority system is not 
unlawful under Title VII even though it perpetu­
ates post-Act discrimination that has not been the

21



subject of a timely charge by the discrimina- 
tee.... Section 703(h) on its face immunizes all 
bona fide seniority systems, and does not distin­
guish between the perpetuation of the pre- and 
post-Act discrimination. 431 U.S. at 348 n. 30 
[citations omitted].

In fact, in Evans the Seventh Circuit's holding rested on a 
purported distinction between perpetuating pre-Act and 
post-Act discrimination, but the Supreme Court flatly dis­
agreed. 431 U.S. at 560. Thus, the joint holdings in 
Teamsters and Evans completely rebuff any attack upon a 
seniority system which rests upon the perpetuation theory. 
Accord, Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 
541 (5th Cir. 1980) and EEOC v . E . I. duPont de Nemours & 
Co., Chestnut Run, 445 F.Supp. 223, 248 (D. Del. 1978). As 
Judge Butzner of the Fourth Circuit has said:

Accordingly, under the Teamsters rationale a 
Plaintiff will not be successful in challenging a 
neutral seniority system as violative of Title VII 
by merely showing that a past event that has no 
legal significance, i.e., pre-Act discrimination 
or post-Act discrimination that was not made the 
subject of a timely EEOC charge, is being per­
petuated by the current operation of a seniority 
system. See Evans, 431 U.S. at 560, 14 FEP Cases 
at 1513. Younger v. Glamorgan Pipe & Foundry Co., 
20 FEP Cases 776, 784 (W.D. Va. 1979) (Butzner 
sitting by designation), aff1d No. 79-1492 (4th 
Cir., May 9, 1980 ).

Accordingly, where as here the alleged discrimina­
tion occurred more than 180 days before the charge was 
filed, "it is merely an unfortunate event in history which 
has no present legal consequences." 431 U.S. at 558. The 
employee must file a timely charge alleging that he has been

22



discriminated against in the preceding 180 days by the em­
ployer's decision on a particular promotion or other 
seniority-related job opportunity.1 In this case, none of 
the 18 charges alleged discrimination within the preceding 
180 days. Each charge relied exclusively upon conduct which 
occurred prior to the filing of the charge, and sought to 
avoid the 180 day statute of limitations by arguing that the 
seniority system was a continuing violation because it 
perpetuated the past discrimination. Teamsters and Evans 
leave no doubt that Appellees were properly granted summary 
judgment on those claims.

Appellants make the incredible contention that, even 
after Evans, the lower courts have entertained attacks upon 
seniority systems under a continuing violation theory [EEOC 
Brief, pp. 20-22; Williams Brief, pp. 38-43]. That is 
simply untrue. The courts have recognized that contempo­
raneous promotion policies may be attacked if the complain­
ant alleges present-day discrimination, as distinguished 
from perpetuation of past discrimination. See, e .g., Fish­
er v. Procter & Gamble Mfq. Co., supra; and, in those cases, 
the 180 day statute of limitations does not begin to run on 
the date the policy was first instituted. Morelock v. NCR 
Corp. , 586 F .2d 1096 (6th Cir. 1978) cert, denied, 441 U.S. 
906, 60 L.Ed.2d 375, 99 S.Ct. 1995 (1979) (ADEA, not 
Title VII). Rather, the statute begins to run on the most 
recent day on which the policy was applied to the claimant. 
See, e . g. , Patterson v. American Tobacco Co., 586 F.2d 300, 
304 (4th CirT 1978); Acha v. Beamed 570 F~.2d 57, 65 (2nd 
Cir. 1978). But that rule is precisely duPont's position in 
this case. Evans bars these Appellants' "perpetuation" 
theory and remits them to allegations against policies, if 
any, which were applied to Williams (or another charging 
party) within 180 days before the charge was filed. Id.

23



B. The duPont Seniority System Is Not 
Pretextual, But Is a Bona Fide Sen­
iority System Created by the Normal 
Processes of Collective Bargaining

In a desperate attempt to evade the clear holdings 
in Teamsters and Evans, Appellants have latched onto the 
language in §703(h) which limits its grant of immunity to 
"bona fide" seniority systems. Consequently, Appellant's 
briefs contain lengthy dissertations attacking the bona 
fides of this seniority system. The most salient fact, 
however, is that neither Appellant's Brief even purports to 
deny that duPont's seniority system is neutral on its face, 
i.e., that the "lock-in effect" of the unit seniority system 
locks-in white employees in the Classified and Utility Divi­
sions as well as the black employees in those Divisions. 
Nor does either Appellants' brief contend that this sen­
iority system is pretextual; both implicitly concede that it 
is the product of customary give-and-take between management 
and union. Nevertheless, Appellants do contend the system 
is not bona fide within the meaning of §703(h).

To support this contention, Appellants rely heavi­
ly upon the decisions in cases such as James v. Stockham 
Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. 
denied, 434 U.S. 1034, 54 L.Ed.2d 781, 98 S.Ct. 767 (1978). 
In those cases, some lower courts have disingenuously re­
sisted the holding in Teamsters by erecting a four-part test

24



for adjudging the bona fides of a seniority system. Under 
this test, the Court inquires into the facial neutrality, 
rationality, genesis and maintenance of the system in order 
to determine its bona fides. The primary fallacy of this 
approach is that it rests on obiter dictum in the Teamsters 
opinion, not on any holding. Accord, Winfield v. St. Joe 
Paper Co. , 20 FEP Cases 1103, 1131 (N.D. Fla. 1979); Swint 
v. Pullman-Standard Co., 17 FEP Cases 730, 734 (N.D. Ala. 
1978).2

In Teamsters, the sole attack on the seniority 
system was the assertion that it perpetuated past discrimi­
nation. In order to crystalize that issue, the plaintiffs 
stipulated that the seniority system was otherwise bona 
fide. It was in the course of pointing out that this issue 
was not before the Court that the opinion made the statement 
upon which Appellants bottom their argument:

Stockham Valves is also factually distinguishable from 
the persent case because, in that case, there was a finding 
of fact that the seniority system had been maintained after 
the effective date of Title VII for the avowed purpose of 
racial discrimination. Accord, Swint v. Pullman-Standard 
Co., supra. There is nothing in this record to support even 
an inference that these Appellees acted after 1965 with an 
intent to structure a racially discriminatory seniority 
system.

25



It is conceded that the system did not have its 
genesis in racial discrimination, and that it was 
negotiated and has been maintained free from any 
illegal purpose. In these circumstances, the 
single fact that the sytem extends no retroactive 
seniority to pre-Act discriminatees does not make 
it unlawful. 431 U.S. at 356.

Clearly this passing reference to nonissues was not intended 
by the Supreme Court to be an inflexible test by which all 
seniority systems are to be adjudged. As the Court said in 
Winfield:

It does not appear from Teamsters itself that the 
Supreme Court intended to fashion a rigid test 
from these four criteria. Rather, these are 
matters used to bolster the Court's conclusion in 
that case. [Citation omitted.] Considerable 
difficulty is entailed by attempting to apply the 
four factors to every case, no matter how dissimi­
lar to the factual circumstances of Teamsters. 20 
FEP Cases at 1131.

Accordingly, the question as to the criteria for adjudging 
the bona fides of a seniority system is an open question in 
both the Supreme Court and in this Court. In order to 
answer that question, one should start with the plain lan­
guage of the statute itself.

Section 703(h) provides, insofar as relevant here, 
as follows:

Notwithstanding any other provision of this title, 
it shall not be an unlawful employment practice 
for an employer to apply different standards of 
compensation, or different terms, conditions, or 
privileges of employment pursuant to a bona fide

26



seniority or merit system, ... provided that such 
differences are not the result of an intention to 
discriminate because of race.... (emphasis sup­
plied) 42 U.S.C. §2000e-2(h).

Given a common sense reading, this provision simply states 
that differences in employment conditions are not actionable 
if they arise from the application of a nonpretextual sen­
iority system and therefore are not actuated by present-day
racial animus on the part of the managerial employee who

3makes the particular employment decision m  question. This 
common sense reading is directly supported by opinions of 
the U .S . Supreme Court.

The similar proviso in the Age Discrimination in Employ­
ment Act strongly supports the conclusion that, to Congress, 
a non bona fide seniority system is a pretextual system. 
That statute, 29 U.S.C. §673(f)(2), provides that it is not 
unlawful for an employer to "observe the terms of a bona 
fide seniority system ... which is not a subterfuge to evade 
the purposes of this chapter." See Morelock v. NCR Corp., 
supra. Of course, the ADEA was originally designed to be 
part of Title VII and the resulting parallels between the 
two laws often require them to be construed in para materia. 
Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975). 
Accordingly, the Congressional statement in the ADEA that 
the seniority system must be proven to be a "subterfuge" is 
consistent with a reading of §703(h) which requires a Title 
VII plaintiff to prove the seniority system is pretextual.

This allocation of the burden of proof is also con­
sistent with the U.S. Supreme Court's leading decision on 
burden of proof in Title VII cases, McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 
(1973). Where, as here, the employer's allegedly discrimi­
natory conduct is explained by a legitimate, nondiscrimina- 
tory reason (namely, the operation of a facially neutral 
seniority system), the burden is on the plaintiff to prove 
that reason is in fact "pretext." 411 U.S., at 804.

27



Contrary to Appellants' assertion that §703(h) is
an affirmative defense which allocates to employers the 
burden of proving their seniority system is bona fide, the 
Supreme Court has squarely held in Trans World Airlines, 
Inc, v. Hardison, 432 U.S. 63, 53 L.Ed.2d 113, 97 S.Ct. 2264 
(1977) that §703(h) is a provision which delineates the 
elements of a claim for relief based on the assertion that a 
seniority system violates the Act. Within a mere two weeks 
after Teamsters and Evans were announced, the Court in 
Hardison held that where "the operation of the seniority 
system itself is said to violate Title VII, ... §703(h) 
unequivocally mandates that there is no statutory violation 
in the absence of a showing of discriminatory purpose." 432 
U.S. at 82, n. 13. See also, Teamsters v. U.S., 431 U.S. at 
353, n. 38.

The Supreme Court's choice of words in Hardison is 
illuminated by its recent decisions concerning burdens of 
proof in employment discrimination cases predicated upon 42 
U.S.C. §1981. Beginning with Washington v. Davis, 426 U.S. 
229, 48 L.Ed.2d 597, 96 S.Ct. 2040 (1976), the Supreme Court 
has now held that employees who rely upon §1981 cannot rely 
solely upon evidence of disparate impact, but rather must 
prove the employer had a "discriminatory purpose," or an 
"invidious purpose" or a "segregative intent" for imposing 
the questioned employment practice. See, e.g., Detroit Po­
lice Officers Ass'n v. Young, 608 F.2d 671, 693 (6th Cir.

28



1979), cert, pending; Williams v. DeKalb County, 577 F.2d 
248, modified, 582 F.2d 2 (5th Cir. 1978); Croker v. Boe­
ing Co., (Vertol Div.), 437 F.Supp. 1138, 1181 (E.D. Pa.
1977). Thus, when the Supreme Court in Hardison said 
§703(h) requires the plaintiff to show "discriminatory 
purpose," it was adopting the standard of proof applicable 
in §1981 cases; and rightly so since the proviso to §703(h) 
says bona fide seniority systems do not violate Title VII 
unless the "differences" in employment conditions which are 
allegedly racially discriminatory are "the result of an 
intention to discriminate because of race...."

Accordingly, an attack upon a promotion made 
pursuant to a nonpretextual seniority system, like a suit 
under 42 U.S.C. §1981, "requires proof of current discrimi­
natory intent." Griffin v. Copperweld Steel Co., 22 FEP 
Cases 1113, 1117 (N.D. Ohio 1979) (emphasis added). As the 
Court said in Winfield, supra:

There is a great deal of dispute in the present 
case whether Title VII places on the plaintiffs 
the burden of establishing that a seniority system 
is not "bona fide" within the meaning of §703(h), 
or whether it requires the defendants to prove the 
bona fides of the system as an affirmative de­
fense. The district court in Swint v. Pullman- 
Standard [citation omitted] analogizing the situ­
ation to cases involving the use of ability tests 
under the same §703 (h) concluded that this issue 
is in the nature of an affirmative defense, re­
quiring a defendant to shoulder the burden of 
persuasion. Other cases, however, suggest that it 
is a part of a plaintiff's case-in-chief to demon­
strate that a seniority system is not bona fide. 
See Croker v. Boeing Co., 437 F.Supp. 1138, 1187,

29



15 FEP Cases 165 (E.D. Pa. 1977). Cf. Morelock 
v. NCR Corp., 580 F.2d 1096, 18 FEP Cases 225 (6th 
Cir. 1978) (construing "bona fide seniority sys­
tem" provision in Age Discrimination in Employment 
Act similar to that contained in Title VII).
Under this view §703(h) does not provide an exemp­
tion from liability or an affirmative defense for, 
as the Supreme Court stated in Teamsters, supra, 
quoting from Franks v. Bowman Transportation Co.,
424 U.S. 747, 12 FEP Cases 549 (1976):

the thrust of [§703(h)] is directed toward 
defining what is and what is not an illegal 
discriminatory practice in instances m  
which the post-Act operation of a seniority 
system is challenged as perpetuating the 
effects of discrimination occurring prior to 
the effective date of the Act.

431 U.S. at 336-37 (emphasis added). Winfield v.
St. Joe Paper Co., 20 FEP Cases at 1129-30.

4Accord, Griffin v. Copperweld Steel Co., supra.
Accordingly, the burden of proof is upon Appel­

lants to prove either that duPont's seniority system is 
pretextual or that the promotions and layoffs at issue were 
actuated by present-day racial animus. Yet, Appellants make 
no effort to prove that either of those has occurred here.

In Copperweld, Judge Lambros said:
Our Court of Appeals has, of course, emphatically 

embraced Teamsters and its protection of genuine, 
facially neutral seniority programs. See Rice v. 
Gates Rubber Co., 584 F.2d 135 (6th Cir. 1978); Wig­
gins v. Spector Freight System, Inc., 583 F.2d 882 
(6th Cir., 1978); Alexander v. Aero Lodge No. 735, 565 
F.2d 1364 (6th Cir. 1977), cert, denied, 98 S.Ct. 2849 
(1978). Consequently, where defendants have estab­
lished that the seniority system in question is textu- 
ally neutral and is administered without regard to 
race, it is incumbent upon plaintiff to come forward 
with some evidence (1) suggesting the opposite conclu­
sion, or (2) demonstrating that Teamsters does not 
apply because the challenged seniority system is not 
bona fide. 22 FEP Cases at 1117-18.

30



Instead, their primary argument is that duPont's seniority 
system was fashioned in a segregationist era and, ipse 
dixit, cannot be bona fide. That argument flies in the 
teeth of Teamsters.

To say that seniority systems which were created 
prior to the effective date of Title VII were created in an 
era of segregation is a redundant statement. Prior to the 
effective date of Title VII, segregation was not unique to 
Louisville nor even to the South. Whether by de jure or de 
facto methods, segregationist practices prevailed throughout 
the United States prior to the effective date of Title VII. 
Thus, if one can overcome the defense of §703 (h) merely by 
proving that the seniority system was born in a segrega­
tionist era, then no seniority system created prior to 
Title VII will enjoy any protection under §703(h). But that 
result would render §703(h) meaningless.

Among the practical, political problems which 
confronted the proponents of the 1964 Civil Rights Act was 
the fear of the American labor movement that Title VII would 
emasculate the hard-won perquisites of its seniority sys­
tems. The 1964 Congress was well aware that those seniority 
systems perpetuated the effects of prior discrimination. 
Indeed, that Congress foresaw the kinds of arguments the 
plaintiffs are making in this very case. Congress never­
theless determined that the seniority rights of incumbent 
white males should not be put in jeopardy by anything else

31



in Title VII. That sentiment may not have been as egali­
tarian as these Appellants would have preferred, but it was 
part of the political compromise without which Title VII 
could not have been enacted. Section 703(h) embodies that 
compromise and it would make a mockery of legislative intent 
for the courts to now hold that §703(h) can be rendered 
inapplicable by evidence of discrimination prior to the 
enactment of Title VII. Indeed, that is the square holding 
of Teamsters:

To be sure, §703 (h) does not immunize all 
seniority systems. It refers only to "bona fide" 
systems, and a proviso requires that any differ­
ences in treatment not be "the result of an in­
tention to discriminate because of race ... or na­
tional origin...." But our reading of the legis­
lative history compels us to reject the Govern­
ment's broad argument that no seniority system 
that tends to perpetuate pre-Act discrimination 
can be "bona fide." To accept the argument would 
require us to hold that a seniority system becomes 
illegal simply because it allows the full exercise 
of the pre-Act seniority rights of employees of a 
company that discriminated before Title VII was 
enacted. It would place an affirmative obligation 
on the parties to the seniority agreement to sub­
ordinate those rights in favor of the claims of 
pre-Act discriminatees without seniority. The 
consequence would be a perversion of the congres­
sional purpose. We cannot accept the invitation 
to disembowel §703(h) by reading the words "bona 
fide" as the Government would have us do. Accord­
ingly, we hold that an otherwise neutral, legiti­
mate seniority system does not become unlawful 
under Title VII simply because it may perpetuate 
pre-Act discrimination. Congress did not intend 
to make it illegal for employees with vested 
seniority rights to continue to exercise those 
rights, even at the expense of pre-Act discrimi­
natees. 431 U.S. at 353-54.

32



Accordingly, even if Appellants could prove at trial that 
pre-Act alterations in the seniority system made it more 
difficult for blacks to transfer out of the Classified 
Division, that would not avoid the impact of §703(h). Each 
of those facts is simply an "unfortunate event in history 
which has no present legal consequences" [Evans, 431 U.S. at 
558] .5

Furthermore, the collective bargaining agreements 
at duPont have not been in force without change since 1954. 
As detailed earlier in this brief, the collective bargaining 
negotiations have, over the years, made significant altera­
tions in duPont's seniority system. In fact, the main

While proof that discrimination was "standard operating 
procedure" is legally irrelevant, it should be noted that 
all three trial courts which heard evidence on the issue 
found such evidence tended to support the bona fides of the 
seniority system. Winfield v. St. Joe Paper Co., supra; 
Swint v. Pullman-Standard Co., supra; Harris v. Anaconda 
Aluminum Co. , 479 F . Supp. IT, 30 (N.D. Ga. 1979). As the 
Court said in Winfield:

This court agrees with the defendants that the very 
ubiquity of overt discrimination casts doubt on the 
theory that the St. Joe job seniority system was 
intended to restrict the promotional opportunities of 
black workers.... In the present case the Company 
utilized other, less subtle methods for effecting job 
discrimination against its black employees, which 
would have obviated the necessity for using the job 
seniority system for discriminatory purposes. In the 
absence of other proof in the record to guide a deci­
sion on this matter, this circumstantial evidence must 
be accepted as conclusive for present purposes. 20 
FEP Cases at 1134.

f ( }  ( U / \ r "

Thus, if as Appellants allege discrimination was blatantly 
applied by duPont in 1956, the subtle rules of a seniority 
system would hardly have been a necessary tool to effectuate 
such a policy.

33



thrust of Appellants' attack on the seniority systems re­
lates to the changes in the system which were made in 1956 
and 1958 [Williams Brief, pp. 4-5, 28-29]. Appellants have 
therefore recognized that the bargaining teams for labor and 
management can and do alter seniority systems; yet Appel­
lants impugn the bona fides of the seniority system in the 
1971 contract by referring to the motives of the negotiators 
who wrote the 1956 contract. That is, at best, a non sequi- 
tor. Appellants cannot be permitted to prove that the 1971 
contract was "the result of an intention to discriminate" 
within the meaning of §703(h) by proving that the negotia­
tors in 1956 had discriminatory motives.* 6

Williams filed his charge in January of 1971, and 
the other 17 charges were filed in May of 1971. Under Evans 
as incorporated into Teamsters [431 U.S. at 348, n. 30], any 
discriminatory conduct which occurred more than 180 days 
before Williams' charge was filed is "merely an unfortunate

The nadir of this approach is Sears v. Atchison, Topeka
& Santa Fe Ry.Co., 454 F.Supp. 158 (D.Kan. 1978), upon which 
Appellants place great reliance. In Santa Fe, the District 
Court determined that the railroad's seniority system had 
been created in the 1890's when segregation was the order of 
the day and held this rendered the seniority system not bona 
fide in 1978. Obviously, the men who initiated Santa Fe's 
seniority system almost a century ago were long since dead 
and the company and union had repeatedly renegotiated their 
union contracts in the interim. To hold §703(h) inappli­
cable on that basis is to subvert the intent of the 1964 
Congress which enacted §703(h). The same is true here.

34



event in history" [431 U.S. at 558]. Accordingly, Appel­
lants' attack on the bona tides of duPont's seniority system 
must be directed to the negotiations which produced either 
the September 23, 1968 contract or the April 20, 1971 con­
tract. Unless Appellants can prove these negotiators re­
tained or changed the seniority system for purposes of 
racial discrimination rather than for purposes of labor- 
management relations, §703(h) entitles Appellees to summary 
judgment. But no Appellant has even made such an allega­
tion, much less filed an affidavit to that effect in com­
pliance with Rule 56.

The most any Appellant says is that the 1968 and
1971 negotiators failed to even discuss the impact of the
system upon the black employees [Williams' Brief, pp. 9-10].
Of course, Appellants' theory is that the burden of proof is
upon duPont, so Appellants reason that the absence of evi-

. 7dence precludes entry of summary judgment. But, since

Appellants also argue that since the negotiators knew the 
seniority system disparately impacted blacks, their failure 
to alter it infers discriminatory intent. That assertion is 
tantamount to contending that management and union have an 
affirmative duty to destroy the protection Congress gave 
them in §703(h). That reasoning was flatly rejected in 
Hardison. The Eighth Circuit had held the employer should 
have unilaterally altered the seniority system to accom­
modate Mr. Hardison's religious beliefs. The Supreme Court, 
however, noted that peaceful collective bargaining is at the 
heart of our national labor policy and that collectively 
bargained "seniority systems are afforded special treatment 
under Title VII itself" in §703(h) 432 U.S at 81. The Court 
therefore rejected any duty to modify the seniority system. 
Accord, Teamsters, 431 U.S., at 353-54.

35



Hardison holds that the burden is upon Appellants to show
"discriminatory purpose," the failure of the 1971 negotia­
tors to even discuss the matter is conclusive evidence that 
the seniority portions of the relevant contract were re­
tained intact in order to preserve the 15 years of economic 
security produced by the seniority system since 1956, not to 
overtly discriminate against blacks.

Appellants' reliance upon the 1956 negotiations is 
misplaced for yet another reason. As Appellants correctly 
note, the 1956 agreement was actually a step forward for 
blacks since it was the first contract which permitted 
transfer between units by seniority [Williams' Brief, p. 4]. 
The 1956 practices about which Appellants complain are the 
diploma and testing requirements imposed by duPont in 1956 
[Id., pp. 5, 28-29]. But those practices were not part of 
the seniority system, as the Supreme Court has now squarely
held in California Brewers Ass'n v. Bryant, ____ U.S. ____,
63 L.Ed.2d 55 (1980). Accordingly, those non-seniority
practices cannot be used to attack the bona fides of the 
seniority system. Furthermore, under Evans, they cannot now 
form the basis for this lawsuit. They are an "unfortunate 
event in history which has no present legal consequences." 
431 U.S. at 558.

36



C. Reliance upon 42 U.S.C. §1981 Can­
not Avoid the Immunity Granted by §703(h) 
of Title VII as Construed in Teamsters

Of all the Appellants' contentions, the easiest to 
refute is Williams' assertion that he can totally avoid the 
impact of Teamsters by bottoming his attack on the seniority 
system upon the Reconstruction era statute now codified as 
42 U.S.C. §1981. At least two circuits have now rejected 
this argument. See, Johnson v. Ryder Truck Lines, Inc., 575 
F.2d 471, 474 (4th Cir. 1978) cert, denied, 440 U.S. 979, 60 
L.Ed.2d 239, 99 S.Ct. 1785 (1979); Pettway v. American Cast 
Iron Pipe Co., 576 F.2d 1157, 1191 n. 37 (5th Cir. 1978) 
cert, denied, 439 U.S. 1115, 59 L.Ed.2d 74, 99 S.Ct. 1020 
(1979); U.S. v. East Texas Motor Freight System, 564 F.2d 
179, 185 (5th Cir. 1977). This is also the unanimous view 
of the District Courts which have decided the issue. Win­
field v. St. Joe Paper Co., 20 FEP at 1131; Edmonds v. 
Southern Pacific Trans. Co., 19 FEP 1052, (N.D. Cal. 1979); 
Queen v. Dresser Industries, Inc., 21 FEP 761, 763 (D.Md. 
1978). It was also the view of the three circuits which 
addressed the issue prior to the Supreme Court's decision in 
Teamsters. Chance v. Board of Examiners, 534 F.2d 993 (2d 
Cir. 1976), cert, denied, 431 U.S. at 965, 53 L.Ed.2d 1060, 
97 S.Ct. 2920 (1977); Watkins v. United Steel Workers, Lo­
cal 2369, 516 F.2d 41, 49-50 (5th Cir. 1975); Waters v.
Wisconsin Steel Works of International Harvester Co., 502

37



F.2d 1309 (7th Cir. 1974) cert, denied 425 U.S. 997, 48
L.Ed.2d 823, 96 S.Ct. 2214 (1976).

The reason for this rule is obvious. The Congress 
which in 1964 enacted §703(h) in order to preserve seniority 
systems could not have intended to permit §703(h) to be cir-

Qcumvented by reliance upon 42 U.S.C. §1981. As the Fifth 
Circuit has said:

Assuming, as we must, that Congress intended 
section 703(h) to accord absolute protection to 
pre-Act seniority rights which accrued under bona 
fide seniority systems, Congress could not have 
intended such seniority rights to remain subject 
to revision under section 1981. The same protec­
tions should apply whether the seniority system is 
challenged under Title VII or section 1981. We 
therefore agree with the Fourth Circuit's holding 
in Johnson that the protection accorded bona fide 
seniority systems by section 703(h) apply whether 
suit is brought under Title VII or section 1981. 
Pettway v. American Cast Iron Pipe Co., 576 F.2d 
at 1191, n. 37.

Accordingly, all the Appellants' attacks on duPont's sen­
iority system are barred by §703(h) and the entry of summary 
judgment on those portions of both complaints must be 
affirmed.

The Supreme Court squarely held in Teamsters that it is 
the intent of the 1964 Congress, not the 1972 Congress, 
which governs construction of § 703(h). See, 431 U.S. at 
354, n. 39.

38



II. Williams' Claim as to Testing Require­
ments for Promotions Is Barred by Evans 
v. United Air Lines_____________________

Williams contends alternatively that his complaint 
is not limited to an attack on the seniority system. He 
points out that his 1971 charge to the EEOC alleged that, in 
the early 1960's, he had lost a promotion due to the al­
legedly disparate impact of a test administered by duPont 
[Exhibit H-l to duPont's Motion to Dismiss, dated November 
4, 1974]. Clearly, Evans completely disposes of this asser­
tion. The alleged incident occurred before the effective 
date of Title VII, much less more than 180 days before Wil­
liams filed his charge in January of 1971.

Nor can Williams save his claim by calling it "a 
continuing violation" of Title VII. See, footnote 1, supra. 
Evans clearly sounded the death knell for the continuing 
violation theory. Accord, Trabucco v. Delta Airlines, 590 
F.2d 315 (6th Cir. 1979); Hodge v. McLean Trucking Co., 607 
F.2d 118 (5th Cir. 1979); Fowler v. Birmingham News Co., 608 
F.2d 1055 (5th Cir. 1979).

Stripped to its essentials, Williams is contending 
he was denied a promotion for racially discriminatory rea­
sons. He concedes this occurred in the early 1960's but 
contends his 1971 charge is timely because he is still 
suffering from the loss of that job. Clearly, that claim is 
indistinguishable from the claim rejected in Evans. In 
Evans, the U. S. Supreme Court said:

39



Respondent emphasizes the fact that she has 
alleged a continuing violation. ... But the 
emphasis should not be placed on mere continuity; 
the critical question is whether any present 
violation exists.

A contrary view would substitute a claim for 
seniority credit for almost every claim which is 
barred by limitations. Such a result would con­
travene the mandate of §703(h).

431 U.S. at 558, 560 (emphasis original). Accordingly,
Williams' attack on duPont's promotional testing is barred 
by the applicable statute of limitations.

III. The EEOC's Contentions as to Hiring Are 
Barred Because They Are Beyond the Scope 
of Its Determination______________________

Like Williams, the EEOC contends that even if 
Teamsters and §703(h) eliminate the assault upon duPont's 
seniority system, there are other claims for relief in the 
EEOC's complaint which should have survived duPont's motion 
for summary judgment. Specifically, the EEOC claims that 
duPont has engaged in post-Act discrimination in hiring and 
the EEOC seeks a trial on the hiring issues even if the 
Court affirms summary judgment on the seniority issues.

The fallacy of the EEOC's approach is that not one 
of the 18 charges filed with the EEOC dealt with hiring. 
The one charge which the EEOC says charged discriminatory 
hiring plainly refers to hiring practices 20 years before 
the charge was filed when the charging party was hired, and

40



the charge clearly focuses on the alleged perpetuation of 
the effects of that discriminatory hiring [App. pp. 209-10]. 
Every one of them attacked duPont's seniority system for 
allegedly perpetuating pre-Act discrimination. Consequent­
ly, the EEOC's investigation was limited to seniority. Its 
determination of reasonable cause and its conciliation 
proposals were likewise limited to seniority [App. pp. 
326-28]. DuPont's hiring practices were never investigated 
nor conciliated. Indeed, the EEOC's own brief says its 
administrative Determination was limited to discrimination 
"against incumbent black employees" [EEOC Brief, p. 4]. 
Under these circumstances, the EEOC cannot now maintain a 
suit questioning duPont's hiring practices.

The leading case on this point happens to be a 
decision of this Court, EEOC v. Bailey Co., 563 F.2d 439 
(6th Cir. 1977), cert, denied, 435 U.S. 915, 55 L.Ed.2d 506, 
98 S.Ct. 1468 (1978); and it is a tour de force on this
issue.

In Bailey, a female employee filed charges of sex 
and race discrimination. The EEOC investigated those 
charges, issued its reasonable cause determination and 
attempted conciliation. At trial, the EEOC sought to go 
beyond sex and race discrimination to allege national origin 
discrimination. The District Court refused to permit that, 
and this Court affirmed.

41



This Court reasoned that the conciliation process 
would be a nullity if the EEOC could use any charge to 
support a complaint that covers every imaginable form of 
discrimination. Accordingly, this Court squarely held that 
the complaint which the EEOC files in court may not include 
any allegation which was not both in the EEOC's determi­
nation of reasonable cause and within the scope of a rea­
sonable investigation of the charge filed with the EEOC. 
The Court said any other type of discrimination found by the 
EEOC's investigation should prompt the Commission to file a 
new charge of its own rather than proceeding directly to 
court. Some excerpts from the opinion dramatize the point:

The clearly stated rule in this Circuit is 
that the EEOC's complaint is "limited to the scope 
of the EEOC investigation reasonably expected to 
grow out of the charge of discrimination." Tip- 
ler v. E. I. duPont deNemours & Co., 443 F.2d 125, 
131 (6th Cir. 1971); EEOC v. Kimberly-Clark Corp., 
511 F .2d 1352, 1363 (6th Cir. 1975), cert, denied, 
423 U.S. 994, 96 S.Ct. 420 (1976); McBride v. Del- 
ta Air Lines, Inc., 551 F.2d 113, 115 (6th Cir. 
1977).

The procedure to be followed when instances 
of discrimination, of a kind other than that 
raised by a charge filed by an individual party 
and unrelated to the individual party, come to the 
EEOC's attention during the course of an investi­
gation of the private party's charge is for the 
filing of a charge by a member of the EEOC and for 
a full EEOC investigation of that charge. Then 
the employer is afforded notice of the allegation, 
an opportunity to participate in a complete inves­
tigation of such allegation, and an opportunity to 
participate in meaningful conciliation discussions 
should reasonable cause be found following the

42



EEOC investigation. Section 706(b) of Title VII, 
42 U.S.C. §2000e-5(b), provides for the filing of 
a charge by a member of the EEOC, and under such a 
filing, an employer will not be stripped of formal 
notice of the charge and of the opportunity to 
respond to the EEOC's inquiry into employment 
practices with respect to allegations of discrimi­
nation unrelated to the individual party's charge. 
In addition, the filing of a charge will permit 
settlement discussions to take place pursuant to 
29 C.F.R. §1601.19a after a preliminary investiga­
tion but before any finding of reasonable cause.

To justify the EEOC's position would require us to 
accept the proposition that once a charge is filed 
with the EEOC, then the EEOC may investigate 
whether the employer is engaged in any discrimi­
natory practices and proceed to issuance of a 
reasonable cause determination, to conciliation, 
and even to court as to unlawful employment prac­
tices under Title VII that it may have uncovered. 
Such an expansive theory, giving the EEOC a carte 
blanche once a charge is filed with the EEOC, must 
be premised on the belief that all forms of unlaw­
ful employment discrimination —  whether by race, 
religion, sex, or national origin and whether 
involving hiring, discharge, promotion, or compen­
sation —  are like or related regardless of the 
separate individuals involved. Under the EEOC's 
theory, investigation of one form of employment 
discrimination can always be said to have reason­
ably expected to grow out of a charge of another 
form of employment discrimination. See EEOC v. 
Huttig Sash & Door Co., supra, 511 F.2d at 455; 
EEOC v. General Electric Co., supra, 532 F.2d at 
364-69. We do not subscribe to that theory be­
cause for the purposes of Title VII, forms of 
employment discrimination involving race, reli­
gion, sex, and national origin are not so related.

563 F.2d at 446, 448, 451 (emphasis added).
This Court's holding in Bailey has been followed 

in a number of district court decisions, most notably EEOC 
v. Federated Mut. Ins. Co., 16 FEP Cases 820 (N.D. Ga.

43



443 F.Supp. 1334 (S.D.
N.Y. 1978), aff'd, 607 F.2d 995 (2nd Cir. 1979); EEOC v. 
Honeywell, Inc., 73 FRD 496 (N.D. 111. 1977); EEOC v. Na­
tional Cash Register Co., 405 F.Supp. 562 (N.D. Ga. 1975); 
EEOC v. E. I. duPont de Nemours and Co., Chestnut Run, 373 
F.Supp. 1321 (D. Del. 1974) aff'd, 516 F.2d 1297 (3rd Cir. 
1975).9

The Court in Federated Mut. Ins, accurately dis­
tilled the Bailey holding in the following words:

1977); Ferguson v. Mobil Oil Corp.,

In testing the scope of the EEOC's complaint, 
then, this court concludes that there are two 
distinct questions involved: (1) whether the
additional alleged unlawful employment practices 
are within the scope of the EEOC's investigation, 
determination, and conciliation; and (2) if so, 
whether these practices are "like or related to" 
those alleged in the original charge. 16 FEP 
Cases at 822.

When that rule is applied to the present case, it is clear 
that the EEOC cannot in this litigation contest duPont's 
current hiring practices.

In support of a contrary view, Appellants cite General
Telephone Co. v. EEOC, ____ U.S. _____ , 48 U.S.LW 4513
(May 12, 1980) and EEOC v. Kimberly-Clark Corp., 511 F.2d
1352 (6th Cir. 1975), cert, denied, 423 U.S. 994, 46 L.Ed.2d 
368, 96 S.Ct. 420. However, as with so much of their 
briefs, these citations make facile use of the authorities. 
In General Telephone, the Supreme Court did not deal with 
this issue. Its holding in that case was that the EEOC need 
not satisfy the procedural requirements of Rule 23 as a pre­
requisite to obtaining relief for a class of discriminatees. 
Similarly, this Court's opinion in Kimberly-Clark preceded 
Bailey and was discussed in Bailey. Thus, Bailey is the law 
m  this Circuit.

44



First, the EEOC's Determination letter demon­
strates conclusively that the EEOC's "investigation, deter­
mination and conciliation" in this case were limited to 
duPont's promotional practices through its seniority system. 
DuPont's methods of selecting new hires were never inves­
tigated or conciliated. Thus, under Bailey, the EEOC cannot 
now litigate its hiring claim.

Second, even if the EEOC's investigation had dealt 
with duPont's hiring practices, Bailey would have required 
an EEOC Commissioner to file a new charge because hiring 
practices are not "like or related to those alleged in the 
original charge." The 18 charges filed with the EEOC dealt 
with assertions that the seniority system perpetuated past 
discrimination. That is not "like or related to" assertions 
that duPont currently discriminates in hiring. Bailey 
itself rejects the "belief that all forms of unlawful em­
ployment discrimination ... whether involving hiring, dis­
charge, promotion or compenation —  are like or related...." 
563 F .2d at 451.

Also directly in point is Federated Mut. Ins., 
supra. In that case, the charge dealt with hiring and the 
EEOC's complaint filed in court also encompassed seniority. 
The Court squarely held that the defendants were entitled to 
summary judgment on the seniority claim because hiring and 
seniority are not sufficiently like or related to permit 
expansion of a charge dealing with one into a complaint 
dealing with both. The Court said:

45



1

Employing the test outlined above, the court 
concludes that the complaint filed in this case is 
overbroad. Here, the charge upon which the EEOC's 
action is based concerned racial discrimination in 
hiring practices. An examination of the reason­
able cause determination reveals that both the 
investigation and the determination concerned the 
defendant's hiring practices. -The complaint, 
however, alleges discrimination "against blacks 
with respect to the terms, conditions and privi­
leges of employment because of their race...."
Such a broad allegation was not within the scope 
of the EEOC's investigation and determination and, 
therefore, cannot be encompassed within this 
lawsuit. Accordingly, the EEOC will be limited to 
litigating the defendant's alleged unlawful em­
ployment practices in hiring only. 16 FEP Cases 
at 822.

That logic is equally applicable here. Accordingly, so much 
of the EEOC's complaint as deals with hiring simply fails to 
state a justiciable claim. The entry of summary judgment as 
to those claims should therefore also be affirmed.

CONCLUSION
For the foregoing reasons, the summary judgment 

entered by the trial court should be affirmed in its en­
tirety.

OF COUNSEL:

Res. fully submjjtted,

E d g a r Z i n g m a n  
Sheryl—el Snyder 
Robert B. Vice 
WYATT, GRAFTON & Si 
2800 Citizens Plaza 
Louisville, Kentucky 40202 
(502) 589-5235
Attorneys for E . I. 

de Nemours & Company
duPont

John F. Lawless 
Deborah Pierce 
Legal Department
E . I. duPont & DeNemours & Company 
Wilmingbon, Delaware 19898

46