Affidavit of Bernard Grofman

    U.S. SUPREME COURT REPORTS 72LEd2d
[456 US 273]

PULLMAN.STANDARD, A DIVISION OF PULLMAN, INCORPORATED.
Petitioner,

v
LOUIS SWINT and WILLIE JOHNSON, etc. (No. 80-1190)

UNITED STEELWORKERS OF AMERICA, AFLCIO, et al., Petitioners,

v

LOUIS SWINT and WILLIE JAMES JOHNSON (No. 8G-1193t

456 US 273,72 L Ed 2d 66, 102 S Ct 1781

[Nos. 80-1190 and 80-1193]

Argued January 19, 1982. Decided April27,7982.

Decision: Federal Court of Appeals' reversal of Federal District Court
ruling as to legality of seniority system under 42 USCS g 2000e-2(h), held
erroneous in vieu, of court's independent determination of allegations of
discrimination.

SUMMARY

Certain black employees of a company manufacturing railway freight cars
and parts brought suit against the company and their union in the United
States District Court for the Northern District of Alabama, charging that a
seniority system maintained by the company and union violated Title VII of
the Civil Rights Act of 1964 @2 USCS $g 2000e et seq.). Under g 703rh) of
Title VII (42 USCS $ 2000e-2(h)), it is not an unlawful employment practice
for an employer to apply different compensation standards or different
terms, conditions, or privileges of employment pursuant to a bona fide
seniority system "provided that such differences are not the result of an
intention to discriminate because of race." The District Court found that
any differentials resulting from the seniority system were not the result of
an intention to discriminate because of race or color, and held that the
system satisfied the requirements of g 703th) of Title VII However. the
United States Court of Appeals for the Fifth Circuit reversed. holding that
the seniority system was not valid under $ 703(h) because the differences in

SUBJECT OF ANNOTATION

Beginning on page 890, infra

Supreme Court's vie*'s as to what constitutes
under "clearly erroneous" standard of Federal
Procedure 52(a), providing that findings of fact

set aside unless clearly erroneous

factual issue
Rule of Civil
shall not be

Briefs of Counsel, p 889, infra.
66



ORTS 72LEd2d

MAN, INCORPORATED,

-.tc. (No. 80-1190)

-CIO, et al., Petitioners,

SON (No.80-1193)

ct 1781

Il

ril 27, 7982.

f Federal District Court
2 USCS $ 2000e-2(h), held
nination of allegations of

uring railway freight cars
,heir union in the United
A,labama, charging that a
tnion violated Title VII of
t seq.). Under $ 703th) of
vful emplo-vment practice
n standards or different
pursuant to a bona fide
are not the result of an
)istrict Court found that
'm were not the result of
color. and held that the
Title VII. Hou,ever. the
rit reversed, holding that
)ecause the differences in

'a

utes factual issue
eral Rule of Civil
fact shall not be

,ous

PULLMAN.STANDARD v SWINT
456 US 273,72 L U 2d 66, 102 S Ct l78l

crertain terms, conditions and standards of employment for black workers in
ih" "o-prny_ 

resu_lted from an intent to discriminate. The Court of Appeals
fitxea that Rule 52(at of the Federal Rules of Civil Procedure requirei-that
Ia Dirt.ict Court's findings of fact not be set aside unless "clearly e-rroneous,"
'Lut it determined that a finding of discrimination under $ 70gG) was a
6nding of "ultimale fact" that it would review by making an independent
determination of the allegations of discrimination in the case (624 FZd 525).

on certiorari, the United States Supreme Court reversed and remanded.
In an opinion by WHlrr, J., joined by Buncon, Ch. J., and BnrNNeN,
powrll, RrHNquIsr, and O'CoNNoR, JJ., it was held that the Court of
Appeals erred in-the course of its review of the District Court's judgment
sinte (1) although recognizing the "clearly erroneous" standara oi n,rte
52til, the court may have assumed that the District Court,s finding on
discriminatory intent was not subject to Rule 52(a) by concluding that a
finding of discrimination under $ 703(h) was a finding of "ultimateiact,,, (2)
the court of Appeals' acknowledgment of the controlling standard of Rule
s2 came late in its opinion, and its conclusion strongly suggested that it was
the product of th-e court's independent consideration of the totality of the
circumstances it found in the record, (3) the Court of Appeals, after holding
that the District Court had failed to consider relevant evidence and indical
ing that District Court might have come to a different conclusion had it
considered that evidence, failed to remand for further proceedings as to the
intent of a predecessor union and the significance, if any, of suclr a finding
with respect to its successor.

SrrvrNs, J., corleuqring in part, joined in the court's opinion in the case at
bar except to the extenl that the court's preliminary comments on the
burden of sustaining any challqnge to a seniority system under Title VII are
inconsistent with his separately irpressed vien's in American Tobacco Co. v
Patterson (1982) 456 US 63,71 L Ed 2d ?4A.toz S Ct 1534.

M^a.nsnuL J., joined (except as to point 1 below) by BlecxuuN, J.,
dissenting, expressed the vier,r' that (1) S 703(h) of Title vII does not immu-
nbe a sgniority system that perpetuates past discrimination simply because
those challenging the system are unable to demonstrate to the court's
satisfaction that the system was adopted or maintained for an invidious
purpose, and (2) the Court of Appeals did not ignore the clearl-y erroneous
rule and make ap independent determination of discriminatory purpose, but
rather followed(well-established legal principles both in reletting the Dis-
trict court's findrng of no discriminatorl' purpose and in concruding that a
finding of such a purpose was compelled b-v all of the relevant evidence\

)

67



U.S. SUPREME COURT REPORTS 72LEd2d

HEADNOTES

Classified to U.S. Supreme Courr Digest. Lau.yers. Edition
Appeal and Error $s 1472, 16gg - court's ruling that a charenged senior-

?"1 of Appears' re'ieu' - se- ity system satisfied the requirements ofnioritv svstem - "crearr1, errone- s zoairr or riti" i,u-li tr," ci,ir Rightsous" etandard Act of 1964 G2 USCS S 2000e_2(h)) be-1a-1d. In reversing a Federal District cause differentiars iesulting from the

TOTAL CLIENT.SERVICE LIBRARY ^ REFERENCES
5 $f_ Ju1-2d, Appeal and Error S 839; lb Am Jur 2d, CivilRights gS 141-148
12 Federal Procedural Forms, L Ed, Job Discrimination

$$ a5:11-a5 :t6, 4S:Zl, 45:7 S, 4B:9t
16 Am Jur Pl & p: Fo_rms (Rev), Labor and Labor Relations

$$ 159:321 - 759 :328, t59:Z 67-tS9:87 2
10^3f^ {gr Legal Forms 2d. Labor and Labor Relations

$$ 159:321-159:314 t59:7 6t -tS9:872
2 Am Jur Proof of Facts 2d lg7, Racial Discrimination inE^mployment (In General; Use of'statistic.; d a_-Jr.'"p.oofof Facts 2d 227, Racial Discrimination in g_pf"y_""t_

Recru.iting and Hiring; 4 Am Jur proof ofiulir"ia''izz,Racial Discrimination in Employmlnt-post-Hiir.g"pr".-
tices

27 Am Jur Trials .1, Employment Discrimination ActionUnder Federal Civil Righti A"t.
42 USCS g 2000e-2; Federal Rules of Civil procedure, Rule 52
FRES, Job Discrimination gg 2:11&_2:120
US L Ed Digest, Appeal and Error gS 1477, 1688
L Ed Index to Annos. Appeal and Error; Civil Rights; FederalRules of Civil proceduie; Labor and Emplo-vmelt
ALR Quick Index, Appeal and Error; Discrimination: Rules of.Civil Procedure; Seniorit.r.
Federal Quick Index. Appeal and Error; Fair Emplo).mentPractices; Federal Rule-s'of Civil procedu."; S".r_-.ii.-i 

"'-r

ANNOTATION REFERENCES
Supreme ()ourt's'ie*'s as t. *'hat constitutes factual issue under.'crearlverroneous" srandard of Federar Rure of civil proceJure sz.l. p.,r.:;iira''rr,;,findings ol fact shall not be ser a-.ide unress.t"urtr 

"..or,"ous. 
z2 L Ed 2d u90

Racial discriminatitin in labor and empio.r.ment. 2S L Ed 2d gZS.
tlse of emplo.r'ment senioril-r in la.r ofl and recall. promotion. or transfer ofemplo-r'ees as uniau'fur empr.,r'ment p.i.ti." ,na"i ritr,,'r,ri.i-il..iih,sii. a., or7964 t42 USCS SS 20(Xre et seq.) 34 ALR Fed 16.
Fair emplol'ment statutes designed t. eliminate racral. rerigious. or nationalorigin discrimination in private 

"-plorr.,"ni. +a'alnZa f f Ss

68



)RTS iz,L Ed 2d

')'ers' Edition
.g thal a challenged senior-
atisfied the requirements of
itle VII of the Civil Rights
(42 USCS $ 20o0e-2th)) be-

:ntials resulting from the

REFERENCES

Am Jur 2d. Civil

rb Discrimination

d Labor Relations

Labor Relations

Discrimination in
;; 3 Am Jur Proof
in Emplol-ment-
of Facts 2d 477,

Post-Hiring Prac-

imination Action

ocedure, Rule 52

688
'il Rights; Federal
ryment
nination: Rules of

rair Emplol'ment
,; Senioritl'

ES

u, ,a.u* under "clearl.r'
-e 52,a,. providing that
>us 72 L Ed 2d tr90

2d 92E,

omotion. or transfer of
'Il of Civil Rrghrs Act of

relrgious. or nationa]

PULLMAN-STANDARD T. SWINT
456 trs 273.72 L il 2d 66, 102 S Cl t78l

rr.st€rrr were not the product of an intent

l;'iir.ti.,tate, a Federal Court of Ap

[:r;:#:.i'*;::::a*lT l;:::,li
:i* ";5} r"ffi1?l'"1n41,f; '';.LT L :i
Hr,.". that a District Court's findings

:'i*l*:',ffi Bnff ''"i iiffi '":ii:
.irJ"a that a finding of discrimination

""a.. S 703th) was. a finding of "ultimate

ir.i" tt,rt it would review by making an

il * mi;l: ff n: %1'l il?' s il',"1t'iH
ials' acknowledgment with regard to
hrt" SZ came late in the court's opinion,
*i,t, tt," court's conclusion strongly sug-

oesting that its ruling was a product of
[i" cou.t's independent consideration of
itre totalitl' of the circumstances it found

in the record, and (3) after holding that
lh" Dirt.i.t Court had failed to consider

relevant evidence and indicating that
the District Court might have come to a
diflerent conclusion had it considered

that evidence, the Court of APPeals

failed to remand for further proceedings

a-s to the intent of a predecessor union in
the case and the significance, if any, of
such a finding u'ith respect to a union
currently administering the seniority
6vstem; when a District Court's finding
on an ultimate fact is set aside for an
error of law. a C.ourt of Appeals is not
relieved of the usual requirement of rtr
manding for further proceedings to the
tribunal charged with the task of fact-
finding in the first instance, and, to the
extent that the Court of Appeals as'
sumed that it could reverse the District
Court's finding on discriminatory intent
s'ithout concluding that the finding u'as
clearlv erroneous. it erred (Marshall
and Brennan, JJ.. dissented from this
holding. t

[See annotation p 890. infra]

Civil Rights $ 7.5 - senioritl' system

- disparate impact - discrimina-
tory intent

2a. 2b. tlnder $ 703tht of Title VII of
the Civil Rights Act of f964 t42 USCS
$$ 2000e-2rhti-u'hich permil. an em-
plo3'er to appl1, diflerent compensation
standards or different terms. conditions,
or privileges of emplo-vment pursuant to

a bona fide seniority Eyst€m provided
that such diflerences are not the result
of an intention to discriminate because
of race-a shou'ing of disparate impact is
insufficient to invalidate a seniority sys-
iem, even though the resu)t may be to
perpetuate pre-Act discrimination, and
accordingly, any challenge to a seniority
system under Title VII requires a trial
on the issue of discriminatory intent;
although discriminatory impact may be
considered by a trial court in reaching a
finding on u,hether discriminatory intent
exists as a factual matter, differentials
among employees that result from a se.
niority system are not unla*{ul employ-
ment practices unless the product of an
intent to discriminate. (Marshall, J., dis-
sented from this holding.)

Appeal and Eror $ 1477; Trial $ 94 -seniority eystem differential
impact fact question
"clearly erroneous" standard

3a, 3b. With regard to S 703(h) of Title
VII of the Civil Right-s Act of 196l U2
USCS S 20o0e-2(h)t, u'hich permits an
ernployer to appll' different compensa-
tion standards or different terms of em-
ployment pursuant to a bona fide senior-
ity system provided that such differences
are not the result of an intention to
discriminate because of race, the ques-
tion of u'hether the differential imoact of
a senioritl' s)'stem reflect^s (n int"nt to
discriminate on ggcount of race is a pure
question of fact,fand is neither a ques-
tion o(lau' nor/l mixed question of lau
in factJ so that the question is subject to
the "c{earlv erroneous" standard of Rule
52 of the Federal Rules of Civil Proce-
dure. u'hich does not appl-v to conclu-
sions of laq' and does not divide findings
of fact into those that deal with "ulti-
mate" fact and those that deal with
subsidiarl facts; discriminator.v intent
means actual motive and is not a legal
presumption to be drau'n from a factual
shou'ing of something less than actual
motive. so that a FederqfCourt of Ap
peals mal onll reverse h Federal Dis-
trict Court's finding on discriminatory
intent if it concludes that the findinc is
clearll' erroneous under Rule 52,a'\ 

.-

ISee annotation p 890, infraf
69



Appeal and Error $ 1692.2 - revierr
b1' Court of Appeals - eroneous
vieu, of lau' - remand

4a-4c. Although a Federal Court of
Appeals ma)' set asjle findings of a Fed-
eral District Court (f those findings rest
on an erroneous vieg' of the lau\ the
Iresence of legal errors ma.\' justif-v a
(yemand by the Court of Appeals to the
District Court for additional fact finding
under the correct legal standard since
fact finding is the pasic responsibilitl. of
the District CourtJ u'here findings are
infirm bgcause of an erroneous view of
the law,\6 remand is the proper course
unless the record permils onl1. one reso-
Iution of the factual issue)

Civil Rights g 7.5 - senioritl' system

- discriminatory motivation -predecessor union
5a, 5b. For purposes of g 703thr of Title

VII of the Civil Rights Act of t964 G2

Respondent black employees, brought
suit in Federal District Court against
petitioners, their employer and certain
unions. alleging that Title VII of the
Civil Right-s Act of 1964 was violated b1.
a senioritl' system maintained b-r, peti-
tioners. The District Court found that
the differences in terms, conditions, or
privileges of employment resulting from
the seniority system "are 'not the result
of an intention to discriminate' because
of race or color" and held. therefore.
that the system satisfied the require-
ments of S 703(h, of the Acr. That section
provides that it shall not be an unlau.ful
employment practice for an employer to
apply different compensation standards
or different terms. conditions, or privi-
leges of emplo-r'ment "pursuant to a bona
fide seniorit! sl'srem provided
that such diflerences are not the resulr
of an intenrion to discriminate because
of race." The Court of Appeals rer.ersed.
holding that the differences in treatmenr
of emplo.vees under the senioritr. s\.sterrr
resulted from an intent to discriminate
and thus violated S 703rhi. Although re-
cognizing that Federal Rule of Civil Pro

70

SYLLABUS BY REPORTER OF DECISIONS

U.S. SL]PREME COURT REPORTS 72LEd2d

USCS S 20ooe-2th)t, r*'hich provides rhat
it shall not be an unlawful practice f<rr
an emplover to apply diflerent compen-
sation standards or difl'erent terms. con-
ditions, or privileges of emplo."-ment pur-
suant to a bona fide senioritv svstem
"provided that such differencei aie not
the result of an intention to discriminate
because of race," a discriminatorv moti-
vation b1' a predecessor cannot be im-
puted to a successor which is currentlv
maintaining the seniority s1'stem. and is
relevant only to the extent that it ma.y
shed some light on the purpose of the
successor union or an emplol-er in creat-
ing and maintaining the separat.e senior-
ity system at issue; furthermore acquies-
cence b1' a successor union in raciall5,
discriminatorl' conduct on the part of a
predecessor union is not the equivalent
of a discriminatory purpose on the part
of the successor.

cedure 52{a) requires that C District
Court's findings of fact aot be set aside
unless clearll' erroneous) the Court of
Appeals concluded that a finding of dis-
crimination or nondiscrimination under
$ 703(hl u'as a finding of "ultimate fact',
that the court would revieu bl' making
"an independent determinarion of Ithel )
allegations of discriminarion. thoueh /
bound bt' findings of subsiciiar-v facr \
which are themselves not clearl\' 

"..o.,"- 
,l

ous. "
Held: The Court of Appeals erred in

the course of its revieu' of the District
C,ourt's judgment.

(a) Under g 703{h). a shou'ing of a dis-
parate impact alone is insufiicient to
invalidate a s?niorit.v s_vsterrr. even
though the result mav be to perpetuate
pre-Act discrimination. Absent a discrim-
inator.t purpose. the operation of a se-
nioritl s.vstem is not an uniau'ful em-
plo,r'ntent practice even if the s.r'srem has
some discriminator5' consequences.

t'bt Rule 52rat does not dir-ide findings
of fact into those that deal q,ith "ulti-
mate" and those that deal u'ith "subsid.
iar.\"' facts. While the Rule. does not



TS 72LEd2d PULLMAN-STANDARD V SWINT
456 US 213,72 L Ed 2d 66. 102 S Ct 1?81

of lau', here the ' u'as unprotected b1' $ 703th) was the

lrrtt"i for appll'- product of the court's improper indepen-

u-""'"}lri..ii"rl ient consideration of the rotality of the

.'li' ".-. i".'".t"a circumstances it found in the record'

ifr" C.r.i 
-ol 

Ap When the Court of Appeals concluded

;;;";;;; finding that the District Court had erred in

,rl"ii"ilip^.t Jr failing to consider cerrain relevant evi-

;h;;i; .n'i.tt"nt dence, it improperly made its own deter-
nnrrnr of racp for mination based on such evidence Jtrbgn-

lth)t, *'hich Provides that
an .unla',r'ful Practice for

r appl;- different comPen-

L< or diflerent terms' con-

ileges of emPlol'ment Pur-
rna fide senioritl' s-Ystem

such diflerences are not

r intention to discriminate
e," a discriminator]' moti-

'redecessor cannot be im-

:cessor u'hich is currentlY
re senioritY sYstem, and is
to the extent that it maY

ht on the Purpose of the

n or an emPloYer in creat-

aining the seParate senior-
issue; furthermore acquies-

rccessor union in raciallY

' conduct on the Part of a
nion is not the equivalent
ratory PurPose on the Part
)r.

SIONS

requires that a District
ss of fact not be set aside

,'- ".ron"or.. 
the Court of

iuded that a finding of dis-

rr nondiscrimination under
a finding of "ultimate fact"
t would revieu' b1' making
lent determination of [the]
cf discrimination. though
,ndings of subsidiarY fact

emselves not clearll' errone'

C-ourt of APPeals erred in
f it-s revieu' of the District
nent.
E 703' ht. a showing of a dis-

,""r alone is insufticient to

r s?nioritl s)'stem' even

result ma1' be to PerPetuate
'imination Absent a discrim-
rose. the oPeration of a se-

:m is not arr unla$'ful em-

aetice even i{ the s.vstem has

rinatort' consequences'
.2,ar does not divide findings
those that deal rr'ith "ulti-

rhose that deal u'ith "subsid'

While the Ru)e does not

White, J., delivered the opinion of the

Court, in which Burger, C.J., and Bren-
nan. Powell, Rehnquist, and O'Connor,
JJ., joined. Stevens, J., filed a statement
concurring in part. Marshall, J', filed a
dissenting opinion, in which Blackmun'
J., joined excePt as to Part I.

APPEARANCES OF COUNSEL

Michael J. Gottesman argued the 
-cause 

for petitioners'

bi;;" R. Jones argued the cause for respondents'

Briefs of Counsel, P 889, infra'

OPINION OF THE COURT

t456 US 2751

Justice White delivered the oPin-

ion of the Court'

Respondents were black emplol'ees

at th; Bessemer, AIa , Plant of Peti-
aon"r, Pullman-standard (the Com-

Dan\',. a manufacturer of railu'ar'
i."iett cars and parts Thel'brought
suri against the ComPan'r and the

union petitioners-the United Steel-

* orkers of America. AFLCIO-CLC'
and its l,ocal 1466 tcoliectivell'
USWr-'-alleging violations of Title

VII of the Civil Rights Act of 1964'

78 Stat 253, as amended, 42 USC

$ 2000e et seq. (1976 ed and SuPP

iv t 1nz USCS $S 2oooe et seq.l and

42 USC S 1981 [42 USCS S 1981]'' As
thel' conie here, these cases involve
onlv the validitl'. under Title VIl, of
a senioritl' s1'stem maintained b1'

the Companv and USW. The District
Court found "that the differences in
terms. conditions or privileges of em-

olovment resulting [from the senior-
itt svstenti are 'not the result of an

inrention io discriminate' because of

I. ln their original complaint besid.e' ch.al'

lengrng the senioritr system discussed tn tht:
op,n,on. plaintiffs aiso alleged discriminatror:
,i iol, assig.,ments and promotions and the
la:ture rt, po.t prbliclt a lisr of changes tn

"t,gn.ent.. 
Tlese were all brought -as'class" issues. TV'o charges of individual dis'

criminatiort uere alst' brought' The Court oJ'

Appeals held that the Compan.v had violated

irtie YII in making job assignmenu' and in

selecting fbremen In granting certlorari'. $e

declinei to retieu those aspects of the decr-

ston

7l

district court's findi

an error of lau'



U.S. SUPREME COURT REPORTS 72LEd2d
race or color," App to pet for Cert in
No. 8Gll90, p A-t4Z (hereinafter
App), and held, therefore, that the
system satisfied the requirements of
$ 703G) of the Act. The Court of
Appeals for the Fifth Circuit re-
versed:

"Because we find that the differ_
ences in the terms, conditions and
standards of employment for black
workers and white workers at
Pullman-Standard resulted from
an intent to discriminate because
of race, we hold that the system isnot legally valid under section
703(h) of Title VIt, 42 USC 2000e-
?V) tqz USCS g 2000e-2ih)1.,, 624
F2d 525, SBB-S34 (1980r.

ment discrimination, .,but also prac-
tices that are fair in form, Uui ai.-
criminator.!' in operation." Griggs v
Duke Power Co. 40I IJS 424, S{i, ZA
L_Ed 2d 158, 9r S Ct 84Si (197ii
"Thus, the Court has repeatedll:
held that a prima facie Title tli
violation may be established by poli_
cjes or practices that are neutiai ontheir face and in intent but thail;l'"J*"f";"ffi
sters v United States, 4gi US g24,
349, 52 L Ed 2d 396, 97 S Ct 184d
(7977 ) (hereinafter Teamsters). The
Act's treatment of seniority ,Vrtu*r,
hor,r'ever, establishes an exception to
!!:rS general principles. 'section

1-0-3!h), 78 Srar 257, as iet forrh in 42
yPq $ 2000e-2(h) t42 USCS g 2000e-
2{h)1, provides in pertinent pait:

[456 US 276]

he first question presented in each

a seniority system; and whether the

petition: r+'hether a court of appeals
is iound by the "clearly 

"..o.r"orr."rule of Federal Rule of Civil proce_
dure 52(a) in revievying a district
court's findings of fact, arrived at
after a lengthy trial, as to the moti-
vation of the parties u,ho negotiated

[1a] We granted the petitions for
certiorari filed by USW and bv the
Company, 451 US 906, 6g f fa Za
293, 101 S Ct 1972 (1981), limited ro

'court. belou' applied $,rong legalcriteria in determining the bolna
fides of the seniorit.l. system. W;
conclude that the Court of Appeals
erred in the course of its review and
accordingll' reverse its judgment and
remand for further proceedings

"Notwithstanding any other pro
vision of this subchapier, it slall
not be an unlan{ul employment
practice for an employer to apply
different standardi oi 

"ornp"*u-tion, or different terms, conditions,
or privileges of employment pursu-
ant to a bona fide seniority . . .

system . . provided that such dif_
ferences are not the result of an
intention to discriminate because
of race."

[456 US 277]
Under this section, a showing of
disparate impact is insufficiunl to
invalidate a senioritl. s-ystem, even
though the result mai. Ue to perpetu-
ate pre-Act discrimination. In Trans
ll^orld Airlines. lnc. v Hardison, 43ius 63,82.53 L Ed 2d 113,97'S Ct
2264 0977/, we summarized the ef-
fecl of g 703(hr as follows: .,[A]bsent
a. discriminatory. purpose, the op.ru_
tion of a seniorit-y system cannot bean unlau,ful emplo-vment practice
even if the system has some discrim-i1a!9rf consequences." Thus, any
challenge to a seniority system uri-

I

[2a] Title VII is a broad remedial
rneasure, designed ,,to assure equal_
itv_of emplol'ment opportunities.,.
McD_o_nnell Douglas Co.p ,. Green,
411 US 792,800,36 L Ea 2d 668, 9iS Ct 1812 (lgz3). The Act o."'d"l
signed to bar not only overt employ_
72



EPORTS 72LEd2d

scrimin-ation, ',bui also prac_
at are fair in form, but dis_
,ory T operation.,' Griggs v
rwer Co. 401 US 424. 4i{, ZB
d. 158, 91 S Ct 849 Qg7i;.the Court has repeatedlvrt a prima facie Tltle VIi
, may be established by poli-
rractices that are neutrai onre and in intent but that
ess discriminate in effect
a_ particular group.,' Team_

/Tt9d_ Stares, 4Br US 924,
L Fd 2d 396, 97 S Ct tSad
ereinafter Teamsters). The,tT"ll. of seniority systems,
establishes an exception torneral principles. Section

i _Stat 257, as set forth in 42
We-2(h) [42 USCS g 2000e-
ddes in pertinent part:

r^ithstanding any other pro
rf this subchapier, it sirall
an unlawful employment

. 
tol un employer to apply

t--standards of compensa-
different terms, conditions,
eges of employment pursu_
a bona fide seniority . . .. . provided that such dif_
are not the result of anr to discriminate because

[456 US 277J
rs section, a showing of
impact is insufficient toa seniorit-v system, even
result ma5-be to perpetu_
olscrlmrnation. In Trans

ines, Inc. v Hardison. 432
53 L Ed 2d 113, 97 S Cr
), we summarized the ef-
'3tht 25 follows: "[A]bsent
atory purpose, the opera_
rniorit-y- system cannot beul emplol'ment practice
system has some discrim_
rsequences." Thus, anyr a seniority system un_

PULLMAN-STANDARD T. SWINT
456 US 278.72 L Ed zd 66. 102 S Ct rzir

der Titre vII u',r require a triar on unionization, the plant u.as dividedthe issue of discriminatory' intent: into a nu-t". -oi 
different opera-Was the system adopted because of tional a"pl.r-""r..8 USW sought toirc racially discriminatory impact? represent

This is precisel-v r+'hat happened in [456 US 278]

ti,esu cases. Follou,ing 
"r.'a".is"" 

a-ll production and mainte-
in ruu-'t",s, the Disi?i"i c";;;;i; X,::":,""#:'iI";n1, #;n5HlJ,Xl
;rffi;,i::'d:,'*jiiil':iJ"H'*: ing representative or a bargaining
..instjtuted o, _ri,iiuiil, ffiilfi unit consisting of most of tf,Jr" ernl
ro Section ZOB') ,i ;;"";;,;ili ployees. At that same time, the ln-
rt-igt,rr a", or igoa."-';;;-#:; ternational Association or 

'na"ci,i"-

That court concluded, ;.;".;;;; l:t, and Aerospace Workur. iiafufr

"bo,r" 
and ,r,ill ai."ui._[ei;; ^,ffi; became the bargaining representa-

the system *u. uaopi"d;;;';ffi: tive of a unit consistiig rf fi*;;-
Li""a for purposer iit',"rrr'i"d;;;- flflmentt'' Between tgat and rgaa,
dent of any discrim;;;;;';'1:i::1- JAM ceded certain worker. i., it"
ihe court lr app"ui. r;'il"'Fffi 3iif,i:";lf"sil]i :!"rifi, ffij:,*Circuit reversed. 

unit became all q,hite.

Throughout the period of repre_sentation b1' US\4,, the plani iuas
3lqloxjmatel.y half black. prior to1965,,the.Company openl.r. purrula Jracrall.\. drscriminatorl. policr of iobassignments. Most department;'";;
tained more than one job ;"td;;;and as a result most depart*Z"i'.
were racially mixed. There *"." ,o,,1?.. o1 progression or promotion
wrthrn departments.

The seniority system at issue here
r+'as adopted in 19S4.5 Unde. tliatagreement, seniorit.y wa-s measured
b1' lengh of continuous service in a

II

Petitioners submit that the Court
of Appeals failed to comply with the
command of Rule 52(a) that the find-
ings of fact of a district court mav
not be set aside unless clearly erro_
neous. We first describe the findings
of the District Court and the Cou".t
of Appeals.

Certain facts are common ground
for both the District Court .ia tn"
Court of Appeals. The Companrri
Bes,ssrns. plant u,as unionized i" ti"
early 1940's. Both before una uftu.

2-. The procedural histor.\. of. these cases lsrather complex. The originut .o-piol"i''"u-.
6led in 1971 Since thar time ,h; ;;;; ;;been tried three times and has ,"i.*-UuJ"
resieu,ed b.r'the Courr ol Appeals.

3. In 1941. prior to unionizarion. the Besse.mer plant u.as divided into 2(j d"p;.i;;;.
81 _-1954. there u.ere Zg aepart'meri.:;U
LrS\\' uniu. and 2 IAII ,nlr.' tt,l'l;.r;,menrs remained essentialjr un.i.,rng.a lii".1951

4. The International Brorherh.rcd oi Eiectri-cal Workers rIBE\\', gained rep.es";;;ii;;

status for trf,.o.small departmenl<. The IBE\4:unlt.\4.as all *.hite. IBE\\', hou.er.e, 
".u.s 

a*.-tified in lg46 and its members 
","."."r1_s<.rrbed into a department represenred brUS\\'

5. A departmentat senio:-it\ svstem \r.asparr of the initiai coliectir.e-barguining'"S.;-
menr betu.een the Compan.r. and US\{. in1942. Beru.een 1947 and'f S5a ;"""r*.' ti;seniorin s.r'srt.m changt,d from on. Lu."a'o"oepartnteni: lu ()n( based upor, pa.r,cuiai
occuparions u.ithirr departments In 195.i. thes.\'stenl u.ent back to a departmental base,

73



U.S. SUPREME

particular department.s Seniorit.y
was originalll' exercised onll for
purposes of layoffs and hirings
within particular departments. in
1956 seniority was formally recog-
nized for promotional purposes a-.
well. Again, ho*'ever, seniority, with
limited exceptions, u'as only exer-
cised within departments; employees
transferring to

h56 US 27el
new departments for_

feited their seniority. This senioritv
system remained virtually un-
changed until after this suit was
brought in 1971.?

The District Court approached the
question of discriminatory intent in
the manner suggested by the Fifth
Circuit in James v Stockham Valves
& Fittings Co. 559 F2d gtO eg77).
There, the Court of Appeals stated

y'hat under Teamsters "the totalit.r.
lof the circumstances in the develop-
lment and maintenance of the ,.u.t"rn
l.is relevant to examining that issue."
559 F2d, at 352. There were, in its
vieu,, hou,ever, four particular fac-
tors that a court should focus on.6

First, a court must determine

r+'hether the system "operates to dis-
courag-e all employees equally. from
transferring between senioritr.
unirs." Ibid. The District Court heli
that the system here ,,was faciallv
neutral and . . was applied equalll,
to all races and ethnic g.oup..'; App
A-732. Although there were- chargei
of racial discrimination in its aplli_
cation, the court held that tirlse
were "not substantiated bv the evi-
dence." Id., at A-139. It concluded
that the-system "applied equally and
uniformly to all employees, black
and vi'hite, and that, given the ap
proximatell' equal number

[456 US 280]

of t-he two groups, ,, ;:"il'j:I;:
tively neutral as well." Id., ai A_I94.g

Second, a court must examine the
rationality of the departmental
structure, upon u'hich the seniority
system relies. in light of the general
i$us!1y practice. James, supra, at
352. The District Court found that
linking seniority to,.departmental
age" vvas "the modal form of agree-
ments generally, as u,ell a-c nith
manufacturers of railroad equii
ment in particular." App A-18?. Fu._

COLIRT REPORTS 72LEd2d

6. The onll'exceptions. until lg72 (see n ?.
infra). were for emplo.vees transferring at the
request of the Compan.v or for those electing
transfer in lieu of lal'off.

7. In 1912. the Companr entered inlo an
agreement *.ith the Department of [,abo;" tt,
bring its. emplo.r.ment practices int(.. conrpl,.
ance s'ith Executive Order No_ 11246. 3 CFR
339 (1964-f965 Compr This provided an er_
ception to the departmenral iimir on senior-
it1', allou.rng certain blacL emplovees to makt
interdepartmental transfers u-.ithout anr loss
of seniorit.r.

8. The Fifth Circuit relied upon the fol)ou,
ing passage in Teamsters. 431 US, at 355-856.
52LEi 2d 396. 97 S C\ 1843

"The seniorit.r. system in this litigation is
entirell bona fide. It applres e4uali.r t<, ali
races and ethnic groups To the exteni that il'lock^.' empior.ees into non-linedrrr.er iobs. it
does so for all. . The placing of line d:.ivers

74

rn a Eeparate bargaining unit from other
emplovees is rational, in accord with the in-
dustr-\' practice, and consistent rr.ith National
Labor Relation Board precedents It is corr.
ceded that that seniorin s.vsrem did not have
it.s genesis in racial discrimination. and tharit u'a-< negotiated and has been maintained
free from anl illegal purpose.,'

This passerge was of coursc- rrot meant to br
an exhaustive list of all the factors that adistrict courr might or should conside:- iri
making a findrng of discriminator.\ intenl

9. The court specificall.r. declined to make
an.r finding on u'hether the notransfer pror.i.
sion of the seniorit-r' s-vst.em had u gi.^t",
relative effect on blacki than on *hiies. b*.
cause of qualitative diflerences in the depart-
ments in which the1.\aere concentrated It
believed that such an inquir.v ,, .ould t aw
b,een inconsistenr \.ith the eailier Fifth Cir-
cuir opinion in this case.



EPORTS 72LEd2d

rate bargaining unit from other
is rational, in accord with the in-
:tice, and consistent n.ith National
rtion Board precedents lt is con-
that senioritl'system did not have
in racial discrimination, and that
otiated and ha-s been maintained
n-v illegal purpose "
age r+'&c of course not meant to be
ive list of al] the factors that a
rr1 might or should consider in
nding of discriminator.r' intent.

)ur1 specificalll' declined to make
on r*'hether the no-transfer provi-
senioritl' s1'stem had a greater

tt on blacks than on u'hites. be-
alitative difi'erences in the deparl-
;hich the.v $'ere concentrated. It
at such an inquirl. *.ould have
rstent u'ith the earlier Fifth Cir.
in this case.

PULLMAN-STANDARD v SWINT
456 US 273.72LEn Zd 66. t02 S Cr lZSI

: the system "ope;at.es to dis-
all employees equally from

rring between seniority
Ibid. The District Court heli
e system here "was facially
and . . was applied equally
lces and ethnic groups." App
\lthough there were charges
I discrimination in its appli-
the court held that these
ot substantiated by the evi-
Id., at A-133. It concluded
system "applied equally and
ly to all employees, black
ite, and that, given the ap
tely equal number

[456 US 280]

of employees
wo groups, it was quantita-
rutral as well." Id., at A-134.s

l, a court must examine the
ty of the departmental
), upon which the seniority
elies, in Iight of the general
practice. James, supra, at

r District C,ourt found that
seniority to "departmental
; "the modal form of agree-
enerally, as well as with
lurers of railroad equip
particular." App A-137. Fur-

thermore, it found the basic arrange-
ment of dePartments at the Plant to
l* rationally related to the nature of
iie toork and to be "consistent with
nrsctices which were generalll'
followed at other unionized plants
ihroughout the countrY." Id., at A-
t36-i-t}i. While questions could be

raised about the necessity of certain
departmental divisions, it found that

"ll'of 
tt," challenged lines of division

ere$' out of historical circumstances
at the plant that were unrelated to
racial discrimination.'0 Although un-
ionization did produce an all-white
IAM bargaining unit, it found that
US$' "cannot be charged with racial
6ig,s in its response to the IAM situa-
tion. [USW] sought to represent all
s'orkers. black and u'hite, in the
Dlant." Id., at A-745. Nor could the
bo.prny be charged with any racial
discrimination that may have ex-
Lsted in IAM:

"The compan)' properll' took a
'hands-off approach tou'ards the
establishment of the election units
. . . . It bargained vrith those un-
ions which were afforded represen-
tational

[456 US 281]
status by the NLRB and

did so vgithout any discriminatory
animus." Id., at A-146.

Third, a court had to consider
"n'hether the seniority system had
its genesis in racial discrimination."
James, supra, at 352, by vrhich it
meant the relationship between the
6.\'stem and other raciall_v discrimi-
natorJ' practices. Although finding

ample discrimination by the Com-pal.\. in its emplol'ment practices
and some discriminatorl. practices
by the union,rr the Disiriit C,ourt
concluded that the senioritl system
wa-s in no way related to thl dis-
criminatory practices:

"The seniority system . . . had
its genesis at a period when
racial segregation \^,as certainlv
being practiced; but this systeri
was not itself the product of this
bias. The system rather came
about as a result of colorblind ob-
jectives of a union which-unlike
most structures and institutions of
the era-was not an arm of a
segregated society. Nor did it fos-
ter the discrimination which
was being practiced b.v- custom in
the plant." App 4-144.

Finally, a court must consider
"u'he-ther the system was negotiated
and has been maintained frfo from
an1'_ille^gal purpose.,' James, supra,
at 352. Stating that it had ..carefully
considered the detailed record of ne_gotiation sessions and contracts
which span a period of some thirty-
five years," App A-146, the couit
found that the system r+,as untainted
!t an:\' discriminatory purpose.
Thus, although the District

[456 US 282]

focused on particular factors ,r"'.XI
Iyllq.out the analysis required by
S 703(h), it also looked to the entirl
record and to the "totalit.r. of the
system under attack." Id., at A-142.

10. In particular. the court focused on the
hrsto:-r of the unionizarion prcress at t he
piani and found certain of the departmental
drr'1.1sn. to be based on the evolving relation-
rh;;, [rp1r1-6's, US\1' and IAM.

ll. $'irh respect ro US$. the Drstricr C.ourr
found thal "[u]nion meetings were conducrecirrri- diflerent sides oI the hall for u.hite andbiaci members. and social functions of the

union uere also segregared." ]t also found.
however. thar "iu.]hile possessing some of the
trappings taken frorn an otheru.ise segregated
societr. the US$' local *,a-. one of 

-tte 
f""

inslitutions in the a:ea n.hich drci not func-tion rn fact trr foster and mainuin segrega-
tion. ralher. il sen.ed a .ioint interesr of'r,r.hlte
and black u.orkers *hich had a higher prior.
it.r'than racial considerations.'' app A_1i2, a-
143

75



The Court of Appeals addressed
each of the four factors of the James
test and reached the opposite conclu-
sion. First, it held that the District
Court erred in putting aside qualita-
tive differences bet"r,een the depart-
ments in which blacks were concen-
trated and those dominated by
whites, in consideiing' whether the
system applied "equally" to whites
and blacks.'2 This is a purported
correction of a legal standard under
which the evidence is to be evalu-
ated.

Second, it rejected the District
Court's conclusion that the structure
of departments u'as rational, in line
with industry practice, and did not
reflect any discriminatory intent. Its
discussion is brief but focuses on the
role of IAM and certain characteris-
tics unique to the Bessemer plant.
The court concluded:

"The record evidence, generally,
indicates arbitrary creation of the
departments by the company since
unionization and an attendant ad-
verse affect on black workers. The
individual differences between the
departmental structure at Pull-
man-Standard and that of other
plants, and a-s compared u'ith in-
dustry practice. are indicative of
attempts to maintain one-race de-
partments." 624 F2d,,at 532.

In reaching this conclusion, the

U.S. SUPREME COURT REPORTS 72LEd2d

Court of Appeals did not purport to
be correcting a legal error, nor did it
refer to or expressly apply the
clearly-erroneous standard.

[456 US 283]
Third, in considering the "genesis"

of the system, the C,ourt of Appeals
held that the District Court erred in
holding that the motives of IAM
were not relevant.I3 This u'as the
correction of a legal error on the
part of the District Court in exclud-
ing relevant evidence. The court did
not stop there, however. It went on
to hold that IAM r+'as acting out of
discriminatory intent-an issue spe-
cifically not reached by the District
Court-and that "considerations of
race permeated the negotiation and
the adoption of the seniority system
in 1941 and subsequent negotiations
thereafter." Ibid.

Fourth, despite this conclusion un-
der the third James factor the Court
of Appeals then recited, but did not
expressl.y set aside or find clearly
erroneous, the District Court's find-
ings with respect to the negotiation
and maintenance of the seniority
system.

The court then announced that
"fh]aving carefully reviewed the evi-
dence offered to show whether the
departmental seniorit,v s],stem in the
present case is 'bona fide' u'ithin the
meaning of $ 703(h) of Title VII. u'e
reject the district court's finding."

12. It does not appear to us thst the Districr
Court actualll found a qualirative difference
but held it to be irrelevant. The relevant
passage of the District Court opinion read a-.
follo*'s: "Bl ranking the t*'ent_v-€ighr US$'
and IAM departmenl. according to Eome per-
ceived order of desirabilitl, one could
attempt t measure the relative eflect of the
notransfer rule on u'hitr and black emplor'.
ees. It ma.r' wel) be that a somewhat
greater impact u'as felt bv blacks than u'hites

76

although . . this conclusion is bt no means
certain." Id., at A-134.

13. The original complaint in this ca-se, did
not mention IAI\! Prior to the first trial.
respondents sought and received leave to
amend their complaint trl add IAM a-. a Rule
19 defendant, "insofar as the relief requesled
maf involve or infringe upon the provisions of
such Union's collective bargaining agreemenr
*'ith the Compan_v." Order of the Drstrict
Court. June 4, l974lJoint App 29i.



IPORTS
.72 L Ed 2d

Appeals did not purport to
:ting a legal error, nor did it
' or expressly apply the
rroneous standard.

[156 US 283]
in considering the "genesis"
'stem, the C,ourt of Appeals
the District Court erred in

that the motives of IAM
L relevant.ts This was the
r of a Iegal error on the
he District Court in exclud-
ant evidence. The court did
there, however. It went on
hat IAM u'as acting out of
atory intent-an issue spe-
rot reached by the District
rd that "considerations of
neated the negotiation and
ion of the seniority system
nd subsequent negotiations.." Ibid.

despite this conclusion un-
rird James factor the Court
s then recited, but did not
set aside or find clearly

, the District Court's find-
respect to the negotiation

rtenance of the seniority

rrt then announced that
carefulll' revieu'ed the evi-
red to shou' whether the
rtal seniority s.\'stem in the
se is 'bona fide' rx'ithin the
,f $ 703lhr of Title \rII, we
district court's finding."

. this conclusion is b.v no means
at A-134

ginal complainr in this case did
IAM Prror to the firsr trial.

sought and received leavt. to
compla.int ro add IAM a-s a Rule
"insofar as the relief requested

tr infringe upon the provisions of
collective bargain ing apne€menl
rtpan.r' ' Order of the Districr
.1974 rJoint App7,t'

PULLIITAN.STANDARD T. SWINT
456 LrS 2;3.72 L Ed 2d 66. 102 S Cr l;iJl

624 Fzd. at 533. Elaborating on its
disagreement, the Court of Appeals
stated:

"An anal-ysis of the totality of
the 'facts and circumstances sur-
rounding the creation and continu-
ance of the departmental system
Bt Pullman-Standard leaves us
n.ith the definite and firm convic-
tion that a mistake has been
made. There is no doubt, based
upon the record in this case, about
the existence of a discriminatorv
purpose. The obvious principal
aim of the IAM in 1941 was to
exclude black *'orkers from its
bargaining unit.

[456 US 2&t]
That goal was

ultimatell, reached when maneu-
vers by the IAM and USW re.
sulted in an all-*'hite IAM unit.
The USW, in the interest of in-
creased membership, acquiesced in
the discrimination u'hile succeed-
ing in significantll' segregating the
departments within its ou'n unit.

"The district court might have
reached a diflerent conclusion had
it given the IAM's role in the
creation and establishment of the
seniorit-r' system its due considera_
tion." Ibid. (footnote omittedt.

Having rejected the District
Court's finding, the court made its
on-n findings as to whether the US$,
senioritr system u.as protected b1,
$ 703rht:

the creation of the various all-
r.r'hite and all-black a"purt-"ni.
u'ithin the USW unit a[ the timeof certification and in the vlai.
thereafter, conditions of .acli 

-Jio
crimination which affected the ne-gotiation and renegotiation of the
s,vst6m, and the extent to which
the s.vstem and the attendant no.transfer rule locked blacks intthe least remunerative positionl
within the compan5,. B".ruru o*hnd that the differences in the
terms. conditions and standards oi
employment for black worke.s anJwhite workers at pullmar_btan_
dard resulted from an intent todiscriminate because of .ac", l.e
hold that the system is not i"rr1ir.
_valid under seition Zffi(h;-J?;;i;
YI^l:42 Vgc S 2o0oe_2h\ t42 UStS
S 2000e-2rh)1.', Id., at S3a_'SBa.

In connection n,ith its assertion
!ha-t !t u'as convinced that , ;i";[;
had been made. the Court ;i A;_
peals. in a footnote, referred to t}L
cl.carll'-erroneous standard of nuie
52rat Id., at SBB, n 6.r{ It pointeJ
out, however, that iffindings

[4s6 US 285]

under an erroneous vieu. ;i:"rfi:"',l
ling legal principles, the clearlv ei-l
roneous rule does not appl-y, a.ra th"l
findings ma.r not srand.'t lUia. iiJnalll'. quoting from East v Romine.
Inc., 

^518 F2d Sg2, Bg9 (CAs rgiSl,
th.e Court of Appeals repeated the
Iollou'lng vievr of it-s appellate func_tion in Title VII care-.- *he.u pr._
poseful discrimination is at issue,"\4re consider significant in

decision the manner br. q.hich
tr.r'o seniorit-r' units r.r ere set

vel
of

our
the
up.

"'Although discrimination
non is essentiall.r. a question

14._In Linited Srares r.Linited Srctes Gr.o-
?1.._(. 3J3 US 36,{ Bga). 9: L Ed ;aO Oil.(': 515 (lg48r. this Courr characrerizeC-ihi
crearl-\rrroneous standard as follou :
- 
A hndrng is 'clearl.r. erroneou:. u her: al-u).rugh there is er.idence tc, supporr it. the*'teqing coun on the entire .rlj"r,.. i. i"ii

u'rtir the definrre and firm conviction that amistakt. has been committed ..

\{'e nol€. thar rhe ('ourt of Appeals quoted this
passage at the concjusion of its analvsis of the
Drsiricr ('ourr opinion Supra. at 2g3.72 L Ed
2d. ar 7i

ll



fact it is, at the same time, the
ultimate issue for resolution in
this case, being expresslY Pro-
scribed by 42 USCA $ 2000e-2(a)

[42 USCS $ 2000e'2(a)]. As such, a
finding of discrimination or non-
discrimination is a finding of ulti-
mate fact. [Cites omitted.] In re-
viewing the district court's find-
ings, therefore, we will proceed to
make an independent determina-
tion of appellant's allegations of
discrimination, though bound bY
findings of subsidiary fact which
are themselves not clearlY
erroneous."'624?2d, at 533, n 6.

m
Pointing to the above statement of

U.S. SUPREME COURT REPORTS 72LEd2d

the Court of Appeals and to similar
statements in other Title VII cases
coming from that court,rs petitioners
submit that the Court of Appeals

[456 US 2a6]

made an independent determination
of discriminatory purpose, the "ulti-
mate fact" in this case, and that this
v!'as error under Rule 52(il. We
agree u'ith petitioners that if the
Court of Appeals followed what
seems to be the accepted rule in that
Circuit, its judgment must be re-
versed.!6

[456 US 287]

[3a] Rule 52(a) broadly requires
that findings of fact not be set aside

15. See Jackson v City of Killeen, 654 F2d
1181, 1184 (1981); Payne v Mcl-emore's
\fholesale & Reteil Stores, 654 P2d 1f30,
1147 (1981); Wilkins v Universitl' of Houston.
654 F2d 388, 390 (1981); Lindsel' v Mississippi
Research & Development Center, 652 F2d
488,492 (1981); Rohde v KO. Steel Castings,
Inc.,649 FZd 317,320 (1981); Joshi v Florida
State University, 646 F2d 981, 986 (1981)l

Phillips v Joint Legislative Committee. 637
F2d 1014, 1024 (1981); Danner v United
States Civil Sen'ice C,omm'n, 635 Fzd 427,
430-431 (1981r: Thompson v kland Police
Dept., 633 F2d 11fl, 1112 (1980t; Crauford v
Western Electric Co.. 614 F2d 1300. f 311
(1980)l Burdine v Texa-s Dept. of Communit,r'
Affairs, 606 F2d 563. 566 (1979): Williams v
Tallahassee Motors. Inc. 607 F2d 689. 690
(1979t; Parson v Kaiser Aluminum & Chemi-
cal Corp., 575 F2d 1374.1382 (1978t; Causel' v
Ford Motor Co., 516 F2d 416. 420421 (1975i:
East v Romine Inc.. 5f8 F2d 332. 336-339
( 1975).

16. There is some indication in the opinions
of the C,ourr of Appeals for the Fifth Crrcuit
(see n 15. suprai that the Circuit rule n'ith
respect to "ultimate facts" is onll another
wa.l of statinEi a standard of revier,r' with
respect to mixed questions of lau and fact-
the ultimate "fact" is the statutorl'. legally
determinative consideration (here. intentional
discrimination t u'hich is or is not satisfied b.r'

subsidiary facts admitted or found bl the
trier of fact. A-c indicated in the text, hou--
ever, the question of intentionai discrimina-l
tion under S 703rhr L" a pure question of fact I
Furthermore, the Court of Appeals opinton in-
this case appears to address the issue as a

78

question of fact unmixed with legal considera-
tions.

At the same time, this Court ha-q on occa-
sion itself indicated that frndings on "ultimate
facls" are independentl-v reviewable. In
Baumgarrner v United Srates, 322 US 665. 86
L Ed 1525. 64 S Ct l24O \1944t, the issue n'a-.
whether or not the findings of the trr'o lower
courts satisfied the clear-and<onvincing stan-
dard of proof necessarl to sustain a denatu-
ralization decree. The Court held that the
conclusion of the two lor+'er courls that the
exacting standard of proof had been satisfed
was not an unreviewable finding of fact but
one that a revie*,ing courl could indepen-
dentll'assess. The Court referred to the find-
ing as one of "ultimate" fact, *'hich in that
case involved an appraisal of the strength of
the entire bod.v of evidence. The Court said
that the significance of the clear-and-convinc-
ing-proof standard "*'ould be lost" if the a-s-

certainmenl b1' the los'er courts u'hether that
exacting standard of proof had been satisfeC
on the whole record were to be deemed a
"fact" of the same order as all other "facts
not open to revien here." Id., at 671. 88 L Ed
1525.U sct 1240

The Fifth Circuit's rule on appellate consid-
eration of "ultimate fact.." ha-. iG rool. in
this discussion in Baumgartner. ln Galena
Oaks Corp v Scofield. 218 F?t 217 (CAs
1954r. in which the question wa^s *hether the
gain derived from the sale of a numtrc:' of
houses rxa-. to be treated a^. capital gain or
ordinar-r' income, the Court of Appeals relied
directl.v on Baumgartner in holding that thrs
rvas an issue of "ultimate fact" that an appel-
late coun ma,r' revieu free of the clearll"-errc



CRTS 72LEd2d

of Appeals and to similar
in other Title VII cases

m that court,ts petitioners
rt the C;ourt of Appeals

[456 US 286]

rdependent determination
natory purpose, the "ulti-
in this case, and that this
under Rule 52(a). We

r petitioners that if the
Appeals followed what

: the accepted rule in that
; judgment must be re-

[456 US 287]

e 52{a\ broadly requires
Lgs of fact not be set aside

ct unmixed u'ith legal considera-

re time, this Court ha-s on occa-
icated that findings on "ultimate
independentll reviewable. In
v Unit-ed Stat€s, 322 US 665, 88
I S Ct 1240 (1944t, the issue wa-s

ot the findings of the two lower
d the clear-and-convincing stan-
'necessary to sustain a denatu-
cree. The Court beld that the
the tl'o lower courts that the

dard of proof had been satisfied
rnrevien'able finding of fact but
resiewing coun could indePen-

The Court referred t.o tlie find-
[ "ultimate" fact. u'hich in that
an appraisal of the strength of

dl of evidence. The Court said
ihcance of the clear-and<onvin<'
"rciard "would be lost" if the a-.-

:-r' the lorter courl. uhether that
,dard of proof had been satisfied
e record u'ere to be de.emed a

same order a-. ali other "facts

evieq here " Id.. ar 671. ll,6 L Ed
I 240
lircuit's rule on appllate consid'
rltimate facts" has it,.q roots in
>n in Baumgartner. ln Galena
v Scofield.216 Fzd 217 (CAS

ch the question wa-s nhether the
from the sale of a number of

o be treated a-. capital gain or
)me, thr. (lourt of Appeals relied
,aumganner rn holdrng that this
of "ultimate fact'' that an appel-
rl revierl free of the clearl.""-erro

PULLMAN-STANDARD v SWINT
456 US 2i3, 72 L U 2/t 66, 102 S Ct 1781

unless clearly erroneous' It does not

rnake excePtions. or PurPort to ex-

"ira" 
."tt in categories of factual

inaingt from 
- 
the obligation of a

court of appeals to- accept a district
Jurt's findings unless clearly erre
i*r.. It does not divide facts into
carcgories; in particular, it does not
iiUJ" findings of fact into those that
Jeal with "ultimate" and those that
Jeal with "subsidiarY" facts.

taal The Rule does not aPPIY to

conclusions of law' The Court of AP
oeals, therefore, was quite right in
sa-ving that if a district court's find-
ings rest on an erroneous view of the
lao', the-v maY be set aside on that
basis. But here the District Court
wa-s not faulted for misunderstand-
ins or applying an erroneous defini-
tion of intentional discrimination.t?
It was reversed for arriving at n'hat
the Court of APPeals thought was an
erroneous finding as to lt'hether the
differential impact of the seniorit)'
6-yst€m reflected an intent to dis-
criminate on account of race. That
guestion, as we see it, is a

[456 US 288]
pure

question of fact, subject to Rule
52ra)'s clearly-erroneous standard. It
is not a question of law and not a
mrxed question of lau' and fact.

The Court has previously noted
the vexing nature of the distinction
between questions of fact and ques-
tions of law. See Baumgartner v
United States, 322 US 665, 671, 88 L
Ed 1525, 64 S Cr 1240 \7944r. Rule
52@) does not furnish particular
guidance with respect to distinguish-
ing la*, from fact. Nor do we yet
know of any other rule or principle
that will unerringly distinguish a
factual finding from a legal conclu-
sion. For the reasons that follow,
hou'ever, we have little doubt about
the factual nature of $ 703(h)'s re-
quirement that a senioritl'system be
free of an intent to discriminate.

Treating issues of intent as factual
matters for the trier of fact is com-
monplace, In Dayton Board of Edu-
cation v Brinkman, 443 US 526,534,
61 L Ed 2d 720,99 S Ct 2977 (1979),
the principal question was n'hether
the defendants had intentionally
maintained a racially segregated
school system at a specified time in
the past. We recognized that issue a-s

essentially factual, subject to the
clearly-erroneous rule. In Commis-
sioner v Duberstein, 363 US 278, 4 L
Ed 2d 1218, 80 S Ct 1190 (1960), the
Court held that the principal crite
rion for identifying a gift under the
applicable provision of the Internal

neous rule. Causel v Forci Motor Co.. supra,
r: 421. relfing on Galena Oaks Corp. v Sco
6eld. supra. said that "although discrimina'
tron vel non is essentiall.r' a ques'.ion of fact, it
rs. at the same time. the ultimatt issue for
resolution in this case' and as such. l*'as
deemed m be independentll' revieu'able The
pass&ge from East r Romine, Inc.. supra, a1

33v. which was repeated in the ca-se before us
nou. Eupra. at 285, 72 L H 2d, at 7?-?8,
res:ed on the opinion in Causel r' Ford Motor
Ar/

y'U'h"t*t", Baumganner ma1- have meant b5

/ ttr discussion of ''ultimate facts." it surell did

, Dot mean thal uhenever the result in a case

I t .n-. on a factual 6nding. an appellate court

I ae<d nol remain u'ithrn lhe constrarnL. of
I

Rule 52'ar Baumgartner's discussion of "ulti- 
|

mate facl." referred not to pure findings of I

fact-a. we find discriminatorl intent t<, be in I
this context-but to findings that "clearl-r t
impll.l the application of standards of lau." \
322 LIS. at 671.85, L Ed 1525,64 S C\ 1240 )

li. [tlb] As we noted above. the C,ourt of
Appeals did at certain points purporl to cor.
rect what it viewed as legal errors on the pan
of the District Court. The presence of such
legal erors may justif_v a remand bl the
Coun of Appeais to the District Court for
additional factfinding under the correct legal
standard. lnfra,291-X)2.72 L M 2d. at 81-
82

7S



U.S SUPREME COURT REPORTS 72LEd2d

Revenue Code was the intent or mG
tive of the donor-"one that inquires
what the basic reason for his con-
duct was in fact." Id., at 286, 4 L Bd
2d 7278,80 S Ct 1190. Resolution of
that issue determined the ultimate
issue of whether a grft had been
made. Both issues were held to be
questions of fact subject to the
clearly-erroneous rule.' In United
States v Yellow Cab Co., ggg US g3g,
347, 94 L Ed 150, 70 s ct 777 (Lg(gi),
an antitrust case, the Court referred

,t9 "lfiindings as to the design, mo-
Itive and intent with which m"en act"
las peculiarly factual issues for the
I trier of fact and therefore subject to
(appellate review under Rule 5i.

[2bJ Justice Black's dissent in yel-
Iou' Cah_ suggested a contrary ap.
proach. Relying on United States 

-v

Griffith,334 US
[456 US 28e]

100, 92 L Ed 1236,
68 S Ct 941 (1948), he argued that it
i-" not alrrvays necessary to prove
"specific intent" to restrain trahe; it
is enough if a restraint is the result
or conseq uen ce iEEFiEEniEiin -d@elEms.Sueh
an approach. hou;er.ei,-is sf;Cilcally
precluded br g 703ft r in Title Vi
cases challenging seniority s-ystems.

Differentials among employees that
result from a seniorit-v s;rstem are
not unlan.ful emplcymenf practices
unless the product of an intent to
discriminate. It would make no
Eense, therefore, to say that the in-tent to discriminate required by
S 703(h) may be presumed i.o- .uc[.,
an impact. As $ ZOBth) was construed
in Teamsters, there must be a find_
ing of actual intent to discriminate
o-n racial grounds on the part of
those who negotiated or maintained
the system. That finding appears to
us to be a pure question of fact.

[1b, 3b] This is not to sav that
discriminatory impact is not part of
the evidence to be considered by the
trial court in reaching a finding on
whether there was suih a discrrimi_
natory intent as a factual matter.rs
We do assert, however, that under
$703tht discriminatory intent is a\
finding of fact to be made b1. the /
trial court; it is not a question of law
and not a mixed question of lavu and
fact of the kind that in some cases
may allon' an appellate court to re_
vielv the facts to see if they satisfy
some leggl concept of discriminatory
intent. te Discriminatory

[456 us 290] 
intent here

__-18. See, e.g.. Furnco Construction Corp v
Waters. 438 tIS 567, S80, ST L &t 2d 957. 98 S
Ct 2943 r19lgr: .'proof that [an emplol*er's]
rx,ork force u.as racialll' balanced or'that ii
contained a drsproportionatel.v high percenl_
age of minoritl. emplo.r'ees is not u.hoiv irrel-
evant on the issue of intent *,hen that issue is
-vet to be decided "

I9. We need not. therefore. address the
much-mooted issue of the applicabilir.v of the
Rule 52ra, standard to mixed guestions of lau
and fact-i.e.. questions in u,hich the hisrori.

pare United States ex rel. Johnson v Johnson.
531 F2d 169, 174. n 12 (CA3 19?6r; Stafos v
Janis. 477 F2d 369, 372 (CAIO l973r: and
Johnson v Salisbury. 448 p}d 974, 877 tCA6
1971t, *'ith Rogers l Bares, 431 F2d f6, f8(CA8 1970r; and Penns-vlvania Casualtr. Crc. u
McC,o.r. 167 F2t lS2. lS3 (CAS rgra; Th; i;
also support in decisions of this C,ourr for the
proposition that conclusions on mixed ques,
tions of las' and fact are rndependentl.l: re.
viewable b1' an appellate courl.. e.g.. Bogardus
v Commissioner. 302 US 94. 39. eZ t Ed SZ.
58 S Ct 6I (1937r; Helvering v Tex-penn Oil
Co.,3O0 US 481.491,81 L Ed 255, bZ S Cr 569(1937|: Helvering v Rankin.2gS US 123. lg1.
79 L Ed f343, SS S Ct 232 (1935r But cf..
Commissioner r. Duberstein, 363 tis 27E. 2gg.
4 L U 2d 1215. 80 S Cr ttgo (1960r: Commis-
sioner v Heininger. 320 US 467, Aiir gS L Ed
l7r, 64 S Ct 249 (t943;

put lt another $'a\.

e is substantial authorirr
ts on both sides of thrs question



REPORTS 72LEd2d

lntials among employees that
from a seniority system are
rlau{ul emplcyment practices
the product of an intent to

rinate. It would make no
therefore, to say that the in-'a discriminate required by
r) ma1'be presumed from such
ract. As S 703(h) was construed
msters, there must be a find-
actual intent to discriminate
:ial grounds on the part of
vho negotiated or maintained
;tem. That finding appears to
e a pure question of fact.

3bl This is not to say that
rinatory impact is not part of
dence to be considered by the
rurt in reaching a finding on
rr there r*'as such a discrimi-
intent as a factual matter.tE
assert, however, that under

) discriminatorS' intent is a
of fact to be made by the

,urt; it is not a question of lavv
t a mixed question of law and
the kind that in some cases
lou' an appellate court to re-
re facts to see if they satisfy
:gal concept of discriminatory
e Discriminator-v

[456 US 2e0]

intent here

ted States ex rel- Johnson v Johnson.
169. 174. n 12 tCA3 1976t: Stafos r'
7i Fzd 369. 3?2 tCA10 19?3r: and
s Salisburl. 446 F2d 374. 37; (CA6
th Rogers v Bates. 431 Fzd 16. f8
Ot: and Pennsl'lvania Casualt'r' C'o. v
67 F2d f32, 133 {CAs 1948r. There is
ort in decisions of this Grurt for the
)n that conclusions on mixed ques-
law and fact are independentll re.
b1'an appellate court. e.g.. Bogardus
ssioner. 302 US 34. 39. 82 L Ed 32.
6l (1937t: Hellering v Tex-Penn Oil
JS 481. 491.81 L Ed 755.57 S Cr 569
elvering v Rankin. 295 US 12:j. 131.
1343. 55 S Cr 732 (1935i. Bur cf..

oner v Duberstein. 363 US 278.289.
I 1218. 80 S Cr 119(t 11960,: Commrs.
Heininger. 320 US 467, 475 86 L ft
Cr 249 (7943,

PULLMAN.STANDARD v SWINT
456 US 273,72 L Ed 2d 66. 102 S Ct 1Z8t

means actual motive; it is not a legal
.Lumption to be drar+'n from a
i".tr"t shou'ing. of something less

ih"n ".trrl 
motive Thus. a court of

ippeals -may 
onll' reverse a district

lrrt'. finding on discriminatorf in-
rcnt if it concludes that the finding
;. clearly erroneous under Rule

iZar. Insofar as the Fifth Circuit
essumed otheru'ise, it erred'

IV

ttcl Respondents do not directly
deiend the Fifth Circuit rule that a

rial court's finding on discrimina-
@ry intent is not subject to the
clearl-v-erroneous standard of Rule

'2rat.n 
Rather, among other things,

thel' submit that the Court of Ap
eals recognized and, where apprG
oriate. properly applied Rule 52iat in
itting aside the findings of the Dis-
trict Court. This position has force,
but for two reasons it is not persua-
cive.

First, although the Court of Ap
peal-c acknowledged and correctly
rt.ated the controlling standard of
Bule 52ta\, the acknou'ledgment
came late in the coutt's opinion. The
coun had not expressll' referred to
or applied Rule 52tat in the course of
drsagreeing u'ith the District Court's
resolution of the factual issues
deemed relevant under James v
Stockham

[456 US 2et]
Valves & Fittings Co.,

559 F2d 310 (1977).2' Furthermore,
the paragraph in n'hich the court
finall1' concludes that the USW se-
niority system is unprotected by
$ 703G) strongly suggests that the
outcome u/as the product of the
court's independent consideration of
the totality of the circumstances it
found in the record.

Second and more fundamentally,
when the court stated that it was
convinced that a mistake had been
made, it then not only identified the
mistake but also the source of that
mistake. The mistake of the District
Court was that on the record there
could be no doubt about the exis-
tence of a discriminatorl' purpose.
The source of the mistake was the
District Court's failure to recognize
the relevance of the racial purposes
of IAM. Had the District Court
"given the IAM's role in the creation
and establishment of the seniority
system its due consideration," it
"might have reached a different con-
clusion." Supra. at 2M, 72 L EA 2d,
at 77.

[ac] When an appellate court dis-
cerns that a district court has failed
to make a finding because of an
erroneous view of the law. the usual
rule is that there should be a re-
mand for further proceedings to per-
mit the trial court to make the miss-
ing 6ndings:

"[F]actfinding is the basic responsi-
bilitt' of district courrs. rather

t0. Neither does the dissent contend that
Bure 52,a, rs inapplicabie to findings of dis-
cTuntnaton intenr. Rather. ir contends. that
tht Rule w6-s properll'applred bv the Courr of
Aplrals

ll. ln partrcular. in regard to the second
Jemer factor-whether the departmenta)
a,r'ucture r,r'a-. rational or in line n'ith indus.
ln pra.lice-the Court of Appeais did not
focu-. or, the evidentiary basis ioi an.r. particu-
b: hndrng of the Districr Court. h'app,eared

to make an rndependent examination of the
record and arrive at it.s ou'n conclrrsion con-
trar) to thal of the Districr Court Likeu.ise.
in dealing s'ith the genesis of the senroritl
s.r'stem and n'hether or not the negotiation or
maintenance of the s.vsterr s.as tainted r*'ith
racial discrimination. the Court of Appeals.
while identiff ing u'hat it thought u,as legal
error in failing to consider the racial practices
and intentions of IA\1. did nor otherg'ise
overturn anl of the Drstrict Court's findings
a-. clearl) erroneous

8l



U.S. SUPREME COURT REPORTS 72LEd2d

[456 US 2s3]than appellate courts, and . . the
Court of Appeals should not have
resolved in the first instance

[456 us 2e2] 
this

factual dispute which had not
been considered by the District
Court." DeMarco v United States,
415 US 449, 450, n, 39 L Ed 2d
501, 94 s Ct 1185 (7974).n

Likewise, where findings are infirm
because of an erroneous view of the
law, a remand is the ProPer course
unless the record Permits onlY one
resolution of the factual issue. Kel-
ley v Southern Pacific Co. 419 US
gi8, BS1-332, 42 L Ed 2d 498, 95 s
CL 472 (L974). All of this is elemen-
tary. Yet the Court of Appeals, after
holding that the District Court had
failed to consider relevant evidence
and indicating that the District
Court might have come to a different
conclusion had it considered that
evidence, failed to remand for fur-
ther proceedings as to the intent of
IAM and the significance, if anY, of
such a finding with resPect to the
intent of USW itself. Instead, the
Court of Appeals made its own de-
termination as to the motives of
IAM, found that USW had acqui-
esced in the IAM conduct, and ap
parently concluded that the forego
ing was sufficient to remove the sYs-

tem from the protection of $ 703(h).'3

[1d, 5a] Proceeding in this manner
seems to us incredible unless the
Court of Appeals construed its own
well-established Circuit rule with re-
spect to its authority to arrive at
independent findings on ultimate
facts free of the strictures of Rule
52(a) also to permit it to examine
the record and make its own inde-
pendent flndings with resPect to
those issues on which the district
court's findings are set aside for an
error of law. As we have previously
said, however, the premise for this
conclusion is infirm: whether an ulti-
mate fact or not, discriminatory in-
tent under $ 703&) is a factual mat-
ter subject to the clearly-erroneous
standard of Rule 52(a). It follows
that when a district court's finding
on such an ultimate fact is set aside
for an error of law, the court of
appeals is not relieved of the usual
requirement of remanding for fur-
ther proceedings to the tribunal
charged with the task of factfinding
in the first instance.

Accordingly, the judgment of the
Court of Appeals is reversed, and the
cases are remanded to that court for
further proceedings consistent n'ith
this opinion.

So ordered.

22. See 5A J. Moore & J. Lucas, Moore's
Federal Practice $52.06121 (1982, ("Where the
trial court fails to make findings. or to find on

a material issue, and an appeal is taken. the
appellate court rrill normalll vacate the judg-
ment and remand the action for appropriate
findings to be made"); Rule v International
Assn. of Bridge Workers. 568 Fzd 55E, 566
(CA8 1978r; Chicano Police Oficer's Assn r
Srover, 552 Fzd 918, 921 (CA10 l9?7): O'Neal
v Gresham. 519 F2d 803. 805 (CA4 1975r.

Burch v International Assn. of Machinisl' &
Aerospace Workers. AFLCIO. 433 F2d 561
(CA5 19701 General Electric Credit C-orp r'

t2

Robbins. 414 FZd 208 (CAE 1969)

23. [5b] IAM's discriminatorl motivation.
if it existed. cannot be imputed to US$'. !t is

relevant onl,r' to the extent that it ma1-. shed
some light on the purpose of USW or the
Companf in creating and maintaining the
separate senioritl system at issue in thi-' case.
A discriminator) intent on the part of IAM'
therefore. does not control the outcome of this
ca-se. Neither does the fact. if true. that USW
acquiesced in racialll' discriminatorl' conduct
on the part of lAM. Such acquiescence is not
the equivalent ol a discriminator)- purpose on

the part of US$-.



TS 72LEd,2d

{56 us 2931

ceeding in this manner-ir,.t"dibl" unless the
pals construed its.ou'n
ed Circuit rule $'tth re-

authoritY to arrive at

findings on ultimate
it e 

"tiict.,res 
of Rule

r permit it to examine

r'rri -.X" its own inde-

dings with resPect t0

on" which the district
ngs are set aside for an

.'a-. tn'" have PreviouslY

"..-th" Premise for this

llnfirm''o't,ether an ulti-
r not, discriminatorY rn-

s ?03(h) is a factual mat-
'to the clearll'-erroneous
f- Rule 52tat' It follows

a jistrict court's finding

irtti-.t" fact is set aside

;-;a law' the court of

iot l"ti"""d of the usual

,,-Lf t"-rnding for fur-

,"ai"g. to the trjbunal
r; ift task of factfinding
instance.

rslv. the judgment of the

iti.r. is ieversed' and the

,['rn""d"a to that court for
l**J*g. consistent with

)n.

red.

I F2d 206 (CAE l96e'

IAII s drscrimlnator] motivation
'i.n""i'* i-Puted tt' LlStv{ lt is

' 
:"-,i:.iJ,'#.:' :i' .lL#':,'Ht
J':;;i,;s ;nd matntaining the

;i";;,.' ;i'.L'" "' I'J'.':.:1,t:'i r'ii;.tator\ intenl 0n th€ par

;J=" ;:'"; ;; i;,' " 
n : .1Y1 1"iil,"",1 1,'.{ii:

er does the fact tl 
"rue:; ;;ii discnmr"ato" conduct

t'"1'ielr 
's"h 

acqutescence is not

r"it "i, ai..tlminal()r\ PurPose on

US\\

PULLMAN.STANDARD V SI*,INT
''cio G 

3xr."^ilT"T;l:',;"' ""

Justice stevens, concurring in 
S,Ul,'*:'lrXfS*ti:t",ir"*'-"13-orart d;;iiitl vn' this time finding that

-'r.,^"ot to the extent that the i"rp""J""a" had failed to shou' dis-

ru*lf *#:r*;rfi :-,layi*#*.;-ry,*r,.*nf#
:1";:-'i' ;;il;;;e separatelv in 6i.."it again unanimousll' rejected

*i*iit*: fi ,;J' ib5's"si iu 
.;;lt;? i,llti ?i'J'1"?:'ft

iffi f *. it" Cou.t'" opinion' io* r"u".tes the Fifth Circuit's sec-

Justice Marshall' with whom Jus- ;;; 
-;;imous- 

decision on the

ti ce Black-o" -'o"'l' 
:;;il; ; ni'*F:lrf;""#t$flf$ :i\:

Fart t, dissenting' ';;Ji; 
"iror,"orr"" 

rule. Fed Rule

In19?1.asro^upofN9.Cr9emnl11-c;;-P;;t52ta)'inconcludingthat

r";{l;llti:f,ff tfl IS':r}"=:'.:i'::iff :t"t*iiii?*3i,lr'lxffi .

li'";"1#"p"lir"i.-Standard. thq ffi;l-'Iislrimination against f:-
lff'mtuitsw,::i{fi ii**n::'*::"x'1,ff "}"":"ffi':!}'i[

nSX**Tn*iJi:,i3:[ 1;tip ;[*,.i ;x[:'xrlr"+'l;r
ilil;;?;l'senioritv svstem negoti- IL"li."rpectfullv dissent'

ated 
[450 us 2e4] I
bY both unions discrimi-

+1r.,;n'ri#i,i:i'ru:it,,*"Jl;"1?."JII,i,iiiH::"i$si"!
1964,42 USC Szffi"'"i''""q irgzo discriminator'v 'purpose' 

the opera-

ed and Supp IVI taz iiscs S z'oooe et il; ;' a senioritv s)'stem cannot 'be

5aq 1 and the crr'it 
"iligttt"t- e" 'I an unla.o'ful emplovment practrce

1866. 42 uSC S'igii"'iil 
'r2'scS 

!"""-ii-lr,- s)'stem has some discrim'

! 19811. In 1g74, il;;*i;r corrr inator.v consequences."' Ante' at

for rhe Northern bi"ri"i of Ala- ii7","'iZ L eO' ?9. at i2, quoting

bama concluded thi'i"tr,"-t""io'lt;- i;;;='-wgtia 4itlines' lnc v Hardi-

Evsterr, did not "o'Ji",""i" 
;t;;i;i- 

"""^"asz 
us os' s3' ry ! 'Ed 

2d !1'
nate against Negroes' A unanimou-' g7s ct 2264 $977y As I have prevr-

panel of the Fifth""Citt"it 
-t"-i'"tt"a' 

;;tl't-i,,d,"ated' I do not find any-

The court ,ut"a tiui ihe District iift ir1t". I"]::-""1 
sratutorl. tan_

Cor^ had committed several "tL"-T guage ot 
'"*",'n?Hirl rss1

;i"i::'#;'niu'ii ,fJ'';","'""1i.i: r'i'tlii-io support th-e

LAI\', and had '"ri"i oi'- p"t".rtt1. proposition that $ 703rh) of Title vII

inaccuratefactualconclusions.Su'intimmunizesasenioritl.s;.stemthat
t Pullman-Standard' 539 F2d 7i ' gt p"'p"t"""t past '-discrimination' 

a-s

96 (1976). on remand. the District [he' system at issue here clearll'
83



does, simply because the plaintiffs
are unable to demonstrate to this
Court's satisfaction that the system
was adopted or maintained for an
invidious purpose. See Teamsters v
United States, supra, at 377-394, 52
L Ed 2d 396, 97 S Ct 1843 (opinion of
Marshall, J.). In my opinion, placing
such a burden on plaintiffs who chal-
lenge seniority systems with admit-
ted discriminatory impact, a burden
never before imposed in civil suits
brought under Title VII, frustrates
the clearly expressed will of Con-
gress and effectively "freeze[s] an
entire generation of Negro employ-
ees into discriminatory patterns that
existed before the Act." Quarles v
Philip Morris, lnc., 279 F Supp 505,
516 (ED Va 1968t (Butzner, J.).

u

Even if I were to accept this
Crcurt's decision to impose this novel
burden on Title VII plaintiffs, I
rrould still be unable to concur in iLs
conclusion that the Fifth Circuit's
decision should be reversed for fail-
ing to abide b-v Rule 52ta). The ma-
jority asserts that the Court of Ap-
peals in this case ignored the
clearly-erroneous rule and made an
independent determination of dis-
criminator.v purpose. I disagree. In
m1' vieu'. the court belou' follou'ed
well-established legal principles both
in rejecting the District Court's find-
ing of no discriminatory purpose and
in concluding that a finding of such
a purpose was compelied bv all of
the relevant evidence.

The majoritl' concedes, a-s it must,

U.S. SUPREME COURT REPORTS 72 L Ed, 2d

that the "Court of Appeals acknowl-
edged and correctly stated the con-
trolling standard of Rule 52(a't."
Ante, at 290,72 L Ed 2d, at 81. In a
footnote to its opinion, the Court of
Appeals plainly states that findings
of fact may be overturned only if
they are either "clearly erroneous"
or "made under an erroneous vie'*'
of controlling legal principles." 624
F2d, at 533, n 6. Furthermore, as the
majority notes, ante, at 283, 72 L Ed
2d, at 76, the Court of Appeals justi-
fied its decision to reject the District
Court's finding that the seniority

[456 US 2e6]

system was not the result of pur-
poseful discrimination b.v stating:
"An analysis of the totalit5' of the
facts and circumstances surrounding
the creation and continuance of the
departmental system at Pullman-
Standard leaves us with the definite
and firm conviction that a mistake
has been made." 624 F2d. at 533
(emphasis added; footnote omitted).r
I frankl-y am at a loss to understand
hou' the Court of Appeals could have
expressed its conclusion that the
District Court's finding on the issue
of intent u'as clearly erroneous r,r'ith
an)' more precision or claritl'.

The majoritl- rejecls the Court of
Appeals' clear articulation and im-
plementation of the clearlt,-errone-
ous rule on the apparent ground
that in the course of correctll' set-
ting forth the requirements of Rule
52tal, the court also included the
follou'ing quotation from its prior
decision in East v Romine. Inc.. 518
F2d 332, 339 (1975r:

"'Although discrimination vel non

I. As the majoritl acknou'ledges. ant€. ar

stared in United States v United States G1'p
sum Co 333 US 364. 395, 92 L Ed 746. 66 S
C\ 525 (1948), that a frnding of facr is clearl-r'

u

erroneous iI "the revierxing court or, the en-
tire evidence is lefi u'ith the definite and lirm
mnviction that a mista*e ha-. fuen commit-
ted" temphasis addedr.



)RTS 72LDd2d

ourt of Appeals ackno'*'l-
correctly stated the con-

rndard of Rule 52(a)."
),72L Ed 2d. at 81. In a
its opinion, the Court of
rinly states that findings
y be overturned onlY if
.ther "clearlY erroneous"
rnder an erroneous view
ng legal princiPles." 624

, n 6. Furthermore, as the
rtes, ante, at 283,72 L Ed
he Court of APPeaIs justi-
Lsion to reject the District
Lding that the senioritY

[456 US 296]

s not the result of Pur-
scrimination b)' stating:
sis of the totalitY of the
ircumstances surrounding
n and continuance of the
tal system at Pullman-
eaves us u'ith the definite
:onviction that a mistake
made." 624 F2d, at 533
added; footnote omitted).'
rm at a loss to understand
lurt of Appeals could have
it's conclusion that the

rurt's finding on the issue
vas clearly erroneous with
rrecision or clarit.v.

ioritl' rejects the Court of
:lear articulation and im-
ion of the clearll'-errone-
on the aPParent ground
)e course of correctlY set-

the requirements of Rule
court also included the

ouotation from its Prior
:r Ea-st v Romine. Inc., 51E

139 (1975r:

ugh discrimination vel non

"the revteuing court on the en-

: is lefi u'ith lbe delinite and firm
hat a mistahe ha-' been commtt'
sis added t.

PULLMAN-STANDARD V SWINT
456 US 279,72LE.d 2d 66, I02 S Ct l78l

is essentially a question of fact it
is, at the same time, the ultimate
issue fot resolution in this case,

b"i.,g "*P.esslY 
Proscribed b1' 42

uSce $ zoooe-zta\ 142 uscs
S ZO00o2tull. As such, a finding of
iiscrimination or nondiscrimina-
tion is a finding of ultimate fact'
icites omittedl. In reviewing the

district court's findings, therefore'
we r*'ill proceed to make an inde-

oendent determination of aPPel-

iant's allegations of discrimina-
iion, though bound bY findings of
iubsidiarY fact which are them-
selves not clearly erroneous'"' 624

FZd, at 533, n 6'

The onlY question Presented bY

this case, therefore, is r;'hether this
,"f"."ra" to East v Romine, Inc''
si,ould be read as negating the Court

oi app"utt' unambiguous acknou'l-
edsment" t456 us 2971

of the "controlling standard of

Rule 52." Ante, at 290, 72 L Ed 2d'

at 81. The majoritv bases it.s affirma-
tive ansu'er to that question on two
fact.ors. First, the majority contends
that the Court of APPeals must not
have properll' respected the clearly-
e.ro.,eou. rule because its acknou'l-
edement that Rule 52rar supplied the
coitrolling standard "came late in
the court's opinion." Ante' at 290' i2
L Ed 2d. at 81. Second, the Court of
Appeals not onl-v "identified the mis-
take" that it felt had been made.
"but also the source of that mis-
take." Ante, at 291, 72 L Ed 2d' at
8i lf the Court of APPeals had re-
alil' been applf ing the clearly-erro-
neous rule. it should have abided b1

the "usual requirement of remand-
ing for further Proceedings to the
tribunal charged u'ith the task of
factfinding in the first instance."
Ante, at 293,72 L Ed 2d, at 82.

Neither of these arguments justi'

fies the majority's conclusion that
this case must be remanded for a

fourth trial on the merits. I am
aware of no rule of decision em-

braced b5 this or any other court
that places disPositive weight on

whether an accurate statement of
controlling principle appears "early"
or late in a court's opinion. Nor does

the majority suggest a bases for this
unique rule of interPretation. So

long as a court acknou'ledges the
p.op". legal standard, I should think
it irrelevant whether it chooses to
set forth that standard at the begin-
ning or at the end of its opinion. The
heart of the majoritY's argument,
therefore, is that the failure to re-

mand the action to the District
Court after rejecting its conclusion
that the seniority system was "bona
fide" within the meaninC of $ 703(h)

indicates that the C;ourt of Appeals
did not properl;- follou' the clearl-"*-

erroneous rule. Before addressing
this issue, however, it is necessary to
examine the nature of the finding of
"intent" required b1' this Court in
Teamsters. the procedure that courts
of appeals should follow in revieu'ing
a district court's finding on intent.
and the extent to t'hich the court
below adhered to that Procedure in
this case.

The District C,ourt examined the
four fact.ors approved b1' the Fifth
Circuit in James v Stockham Valves
& Fittings

[456 US 298j

Co. 559 Fzd 310 (1977)'

cert denied, 434 US 1034, 54 L Ed 2d

781, 98 S Ct 767 (1978), to determine
rrhether the departmental senioritl'
system at Pullman-Standard $'as

adopted or maintained for a discrim-
inatory purpose' Although indicating
that these four factors are not the
onll' t'a1' to demonstrate the exis'

85



U.S. SUPREIUE COURT REPORTS 72LEd2d

tence of discriminatory intent,2 the
Court today implicitly acknolvledges
that proof of these factors satisfies
the requirements of Teamsters.3 In
particular, the majority agrees that
a finding of discriminatorY intent
sufficient to satisfy Teamsters can be
based on circumstantial evidence,
including evidence of discriminatorl'
impact. See ante, at 289,72 L Ed 2d,'

at 80; see also Arlington Heights v
Metropolitan Housing Dev. CorP..
429 US 252,266,267, 50 L Ed 2d
45O,97 S Ct 555 (|1977).

Given the nature of this factual
inquiry, the court of appeals must
first determine whether the district
court applied correct legal principles
and therefore considered all of the
legally relevant evidence presented
by the parties. This, as the majorit.r'
acknowledges, is a "legal" function
that the court of appeals must Per-
form in the first instance. Ante, at
282,283,72 L Ed 2d, at 76. Second,
the court of appeals must determine
r+'hether the district court's finding
r*'ith respect to intent is supported
b5' all of the legallS' relevant evi-
dence. This. the Court holds todal', is
generalll' a factual determination
Iimited b1' the dictates of Rule 52tat.
Finally, if the court of appeals sets
aside the district court's finding u'ith
respect to intent, either because that
finding is clearly erroneous or be-
cause it is based on an erroneous
legal standard, it ma1' determine, in
the interest of judicial econom.r.
s'hether the Iegally

[456 uS 2ee]

relevant evidence presente
to the district court "permits only
one resolution of the factual issue."
Ante, at 292,72 L Ed 2d, at 82. lf
only one conclusion is possible, the
revier+'ing court is free to find the
existence of the fact in question as a
matter of lau'. See Bigelovv v Vir-
ginia, 421 US 809, 826-827, 44 L Ed
2d 600, 95 S Ct 2222 {]975t; l,evin v
Mississippi River Fuel Corp., 386 US
762, 170, 17 L Ed 2d 834,87 S Ct
927 (L967).

A common-sense reading of the
opinion below demonstrates that the
Court of Appeals followed precisely
this course in examining the issue of
discriminatory intent. Even the ma-
jority concedes that the Court of
Appeals determined that the District
Court committed "legal error" b"v

failing to consider all of the relevant
evidence in resolving the first and
the third James factors. Ante, at
282. 283, 72 L M 2d, at 76. With
respect to the first James factor-
whether the system inhibits all em-
ployees equally from transferring be'
tween seniority units-the District
Court found that the departmental
system "locked" both Negro and
white workers into departmenls by
discouraging transfers. The District
C,ourt acknou'ledged that Negroes
might suffer a greater impact be-
cause the compan.y's previous dis-
criminatory policl- of openl-v main-
taining "Negro" jobs and "\'hite"
jobs had caused Negroes to be con-
centrated in less desirable positions.
The District Courl concluded, how-

2. Contrarl to the majorit.v's suggestion.
ante. at 279 n 8. 72 L EC 2d. at 74. I find
nothing in the Fifth Circuit's decision in
James v Stockham Valves & Frttings (o tt,
impll' thar these factors constitute the onlr
relevant crileria for determinrng dtscrimina'
tDr.v int€ni

86

3. This conclusion nould seem to be com-
pelled since. a. the majorit.v notes. the James
factors are nothing more than a summar-t of
the criteria examined b.r' thrs C,ourt in Team-
sters. 431 US. at 355-35€'. 52 L Ed 2d 396. 9?
S Cr 1843



?ORTS 72 L Ed 2d

relevant evidence presented
strict court "permits only
rtion of the factual issue."
292,72 L Ed 2d, at 82. If
conclusion is possible, the
court is free to find the

of the fact in question as a
I }aw. See Bigelow v Vir-
us 809, 82ffi27. 44 L Ed

5 S Ct 2222 1975t; Levin v
ri River Fuel Corp., 386 US
17 L Ed 2d 834.87 S Ct

).

mon-sense reading of the
elow demonstrates that the
Appeals followed precisely
ie in examining the issue of
atory intent. Even the ma-
ncedes that the Court of
letermined that the District
mmitted "legal error" by
consider all of the relevant
in resolving the first and
I James factors. Ante, at
72 L M 2d. at 76. With

o the first James factor-
the system inhibits all em-
qually from transferring be-
rniority units-the District
rnd that the departmental
'locked" both Negro and
rrkers into departments bY

;ing transfers. The District
:knou'ledged that Negroes
rfler a greater inrPact be-
e company's Previous dis-
lry policl' of openll' main-
''Negro" jobs and "whit,e"
caused Negroes to be con'

I in less desirable Positions.
.rict Court concluded. how-

:onclusion u'ould set'm to be com'
:. as the majoritl nole!. th( James
nothing more than a summar-r' of

r examined bv this C'ourl ln Team-
JS. at 355-356. 52 L EC 2d 396. 9;

PULLMAN-STANDARD T' SWINT
456 US 273,72LEi 2d 66. r02 S Cr 1781

p'er, that this differential impact
o.u= irrelevant in determining
r*.hether the seniority system oper-
oted neutrally. The Court of Appeals
iroperll held that the District Court
[rr"d i, failing to consider the fact
itrar the departmental system locked

N"gr*. into less desirable jobs.

SimilarlY, as for the third James
factor-wheth.er.the seniority system

had its genesis in racial discrimina-
tion-the District Court rejected re-

soondents' argument that the mo
tives of the IAM were relevant. It
concluded that the USW could not
be charged u'ith the racial bias of
the IAM. The Court of APPeals held
that this conclusion was erroneous
because the "motives and intent of
the IAM in 1941 and 1942

[456 US 300]
are signif-

icant in consideration of whether the
seniority system has its genesis in
racial discrimination." 624 FZd, al
z.oo 1

As the majoritv acknowledges,
shere findings of fact "'are made
under an erroneous vieu' of control-
ling legal principles, the clearly er-
roneous rule does not apply, and the
findings ma)' not stand."' Ante, at
25a,. 72 L Ed 2d, at 7i, quoting 624
F2d. at 533. n 6: see also Kelle.y v
Southern Pacific Co. 419 US 318.
323. 42 L Ed 2d 498, 95 S Cr 472
t1974); United States v General Mo
tors Corp. 384 US 127, 747, n 16, 16
L Ed 2d 415, 86 S Ct 1321 (1966r;
United States v Singer Manufactur-
ing Co. 374 US 774, 194, n 9, l0 L

Ed 2d 823, 83 S Cr 1773 (1963t;
United States v Parke, Davis & Co.,
362 US 29, 44,4 L Ed 2d 505, 80 S
Ct 503 (1960); Rowe v General Me
tors Corp. 457 F2d 348, 356, n 15
(CAi L972t. Having found that the
District Court's findings as to the
first and third James factors were
made under an erroneous view of
controlling legal principles, the
Court of Appeals wu compdled tn
set aside those findings free of the
requirements of the clearly+rrone'
ous rule.5 But once these two find-
ings were set aside. the District
Court's conclusion that the depart-
mental s-vstem u'a-s bona fide rtithin
the meaninC of S 703(h) also had to
be rejected, since that conclusion
wa-s based at least in part on its
erroneous determinations concern-
ing the first and the third James
factors.

At the very least, therefore, the
Court of Appeals wa-c entitled to
remand this case to the District
Court for the purpose

[456 US 301]
of reexamin-

ing the bona fides of the seniority
system under proper legal standards.
However, as we have often noted. in
some curses a remand is inappropri-
ate u'here the facts on the record are
susceptible to onl-r' one reasonable
interpretation. See Dalton Board of
Education v Brinkman. 443 US 526,
534-537, 61 L Ed 2d 720.99 S Ct
2977 ,1979r: Bigelou' v Virginia, su-
pra. ar 826-82?. 44 L Ed 2d
600, 95 S Ct 2222. In such ca-ses.

{. As the majoritl indrcates in a footnote.
anie. ar 29:. n 23. 7: L Ed 2d. at 61, the
drs:riminaror.v motive of the lA!\t is "relevanr

t() the extenr that it mav shed light on
th€ purpose oi LIS\\' or the Companl in creat.
rng and mainratnrnE the separare senio:.itr
Fvstern al issue in this case " I do nor read the
Coun of Appeals opinion in this ca-se a-" hold-
rng anrthrng more than thar if the US$'
pantcipated in esublishing a system that n.as
dcsrgned for the purpose of peipetuating pasr

discriminatron. the third James factor r*'ouid
be satisfied Given that the IAM is a partl to
this litigation. its partrcipation in the creation
ol the senioritt st'stem can hardl-v be deemed
irrelevant

5. It is therefore irreielant that the Coun
of Appeals did not specificallv hold that the
District Court's other factual findings *'ere
clearll' erroneous

87



U.S. SUPREME COURT REPORTS 72LEd2d
"[e]ffective judicial administration',
requires that the court of appeals
drar+' the inescapable factual ;;;il_
sion itself, rather than remand the
case to the district court for further
needless proceedings. Levin v Missii
sippi River Fuel eorp., 8g6 US,-;1
170, 77 L Ed 2d 834; 87 S Ct gzt.
Such action- is particula.ly 

"pp.op.i-ate where the court of appeut, is in
as good a position to eviluate the
record evidence as the district court.
The major premise behind the deier_
ence to trial courts expressed in
Rule 52(a) is that findings of-faJ
"depend peculiarly upon the credit
gtven to witnesses b1, those r+ho seeand hear them." United States r..
Yellou' Cab Co. 398 US agg, Sai, ga
L-Ed 1S0, Z0 S Ct tz7 \g4g:see utso
United Srates v Oregon State Medi
cal Society, 943 US 816,592,96 L Ed
9-78, 72 S Ct 690 (7952tt.Indeed Rule
52ta) expressly acknou,ledges the irn-
portance of this factor bv- statinsthat "due regard shall be gi"en i3
the opportunitl' of the trial iourt to
.ludge of the credibilit.r- of the wit_
nesses." ConsequentlS.. this C)ourt
has been especiall-r, reluctant to re-
solve factual issues u.hich depend on
the.credibilit-t. of u'itnesses. See g""-
91all1' United States , O.ego" S-rrie
Medical Societ.r-, supra. at ggZ, gO L
Ed 978, ZZ S Ci Ogo.

In the case before the Court today
this usual deference is not requi.el
because the District Court's findings
of fact were entirely based on docu_
mentary evidence.6 As n,e

[456 US 302]

Unired States v Generat T::r::
Corp., supra, at 141, n 16, 16 L Ed
2d 415, 86 S Ct 1827, ,,the trial
court's customary opportunity to
evaluate the demeanor and thus the
credibilit.y of the witnesses, which is
the rationale behind Rule S2(a) . . . ,plays only a restricted role [in] a
'paper case."' See also Jennings v
General l{edical Corp. 604 F2d t:00,
1305 (CA10 1979) ('.When the find_
ings of a trial court are based on
documentarl , rather than oral evi_
de1ce, they do not carr-y the same
weight on appellate revieu.',); Orvis v
Higgins, 180 F2d SgZ, S39 CA2
I950r.?

I believe that the Court of Appeals
correctly determined that a nnai"gof discriminatory intent was com-_
pelled b1' the documentary record
presented to the District Court. With
respect to three of the four James
factors, the Court of Appeals found

. p.-On1.r' tu.c, u'itnes,ses testified during thebrief .hearing rhat the Disrrici C.;;;'";;_
ducted on the guestion whethei tf,.-*ri*ii,
s-ystem at Puliman-Standard u,ss i-mune u.,-der $.703rhr. Both of ttu"" "itn"*r;.';"-;;long-time Negro emplolees of pullman_Sun.
dard who testified on behalf o{ res}tond..nl..
concerning racial segregation ar the ifr"i"rab-r the t'Sll Theri. is no indication in the
Pt:,ll:l Coun s-opinion tf.,u, u- ."f,.a"rfin
the-testlmon-\ of these twc, s.itnesses in con-cJuding thar the s.ysrem wa-q Uo"u na" *.iti,i,
the meaning of g f03ih, fi," ."-rina", ;i;;record belore the Districr C"r., 

"o"rl.tJ un,tirelr of I39 exhibit-. submitted br. ;;a;;
dents. the compan\. and rhe unio.ri .;;:;;;rng the devel6pry,"n, and maintenance of theseniont.v s.\-srerrr from l9a0 through iiie,
1970's

E8

7. This is not tr-r sar. thal the clearl.v-errone
:u. I.rl: doe_s nor appl.r to'document..case=
;51 -U-l,t"d States v Singer Manufacturing C,o
374 US 174. Ig.t. n 9. l0 L U 2d BZS. gS 

-s O1.773 (1963r. Hou,ever. .,when the a."i"io, oilhe co-ur1 belou 7ssl. upon an incorrect readrng.ol an undisputed drrumenr. lthe appel.
laterl courl is free to substitutr, ,t^.'or^.n iuuJ_
ing of the documenr " Eutecuc Cbrp. *, Metco.
Inc. 579 Fzd t, S (CA2 lg78, St* aiso frf.i"n,sie v Sea Land Senrce, S5l F2d gl (CAs
l9?7t; Best Medium pub. Ca. u Nutionut-inl
sider. Inc., 385 FZd 384 (CA? 196i,. c;; ;;.
nied,39Cr US 95S, l9 L Ed 2d 1150. ei. S Cr
10.52 (1966r. Unired States ex rel. Brnion r.

Q Brlen, 273 Fhl 49S rCA3 t9S9;, cert denied.
363 US 8tZ. 4 L Ed 2d ll54. 80 S Cr 124.o
(196Or.



PORTS 72LEd2d

case hfore the Court today
,l deference is not required
.he District Court's findings
ere entirely based on docu-

evidence.o As we

[456 US 302]

noted in
States v General Motors
pra, at 141, n 16, 16 L Ed

86 S Ct 7321, "the trial
customary oPPortunitY to
the demeanor and thus the
y of the witnesses, which is

nale behind Rule 52(a) . . . ,
Lly a restricted role [in] a

ase."' See also Jennings v
Medical Corp. 604 Fzd 1300,

\10 1979) ("When the find-
a trial court are based on
,tary, rather than oral evi-
hey do not carrY the same

n appellate revieu"'); Orvis v
180 F2d 537, 539 (CA2

ve that the Court of APPeals
' detcrmined that a finding
iminatory intent wa-c com-

l1' the documentarl' record

'd to the District Court. With
to three of the four James
the Court of APPeals found

rs not t() sal that the clearll'-errone-
Loes noi appll to "dcrument" cases
j States v Singer Manufacturing Co

4. 194. n 9, 10 L Ed 2d 823. 83 S C\

3r. Hor,r'ever, "*hen the decision of
belou resl. upon an incorrecl read-

undrsputed document, [the aPPei-

t is frt<- to substitute iL' oq'n read'

documen'. " Eutectic Corp. v lletco,
'2d 1. 5 (CA2 1978, See also McKer''
r I.'nd Service, 551 F2d 91 (CA5

;t Mediunr Pub Co v National ln-
.. 385 F2d 3t'4 (CA? 196?t. cert de-

us 955. 19 L Ed 2d 1150. 86 s c\
i8r. United States e:t rel. Binion r'

2i3 F?t 495 (CA3 1959t, cert denied'

trz. 4 L Ed 2d 1154, 80 S Ct 1249

PULLMAN-STANDARD V SWINT
456 US 273,72LFj 2d 66, r02 S Ct 1781

overn'helming evidence of discrimi-

;;i;r-t intent- Pirst, in ruling that
li"-tiirt.i.t Court erred b5' not ac-

ino"'t"dging the- Iegal significance of

ii" fr., that the senioritY system

i*X"a Negroes into the least remu-

.,-*i"tlu" jobs in- the comPanY' the

Court of APPeals determined that

iu.n aitptoportionate impact demon-

Iir"t"a that !l'" svstem did not
I-loeratle] to discourage all employ-
*'eoually from transferring be-

;;;, senioritY units'"' 624 F2d' at

a3o, quoting 
t456 us soal

James v Stockham

Valves & Fittings Co', 559 F2d, at

352 Second, noting that "[n]o credi-

Ll" erpla.ration ha[d] been advanced

to sufficiently justify" the existence

of two seParate Die & Tool DePart-

ments and two seParate Mainte-
nance DePartments, a condition not

found at anY other Pull-man-Stan-

dard plant, or the creation of all-
white and all-Negro departments at
the time of unionization and in sub-
sequent years, the Court of Appeals
concluded that the second James fac-
tor had not been satisfied.s 624 Fzd',
at 533. Pinally, with respect to the
third James factor the Court of Ap
peals found that once the role of the
IAM u'as properly recognized. it was
"crystal clear that considerations of
race permeated the negotiation and
the adoption of the seniority system
in 1941 and subsequent negotiations
thereafter." 624 FZd, at 532.s

[456 US 3M]
After revieu'ing all of the relevant

record evidence presented to the Dis-
trict Court, the Court of Appeals
concluded: "There is no doubt, based
upon the record in this case, about
the existence of a discriminatory
purpose." Id., at 533. Because I fail
to see hou' the Court of Appeals

8. Although the majority is correct ln stal-
rar that the Court of Appeals did not "refer

! or e.f,press,/.r' appiv the clearl.v+rroneous
candard" in reaching this conclusion. ante. at

D,:.72 L Ed 2d, at 76 tempha-sis addedt. the
eppellatt court's adherence to the require-
otnr-. of Rule 52rar is nevertheless apparent
irom the lbllou'ing statement:

'Tne record evidence indicates that a signif
ran: number of one'race' departmenl< \'ere
caabh-shed upon unionrzatlon at Pullman'
liandari, and during the next twentl five
s?ar:. one-race departments *'ere can'ed out
o: previous)l mixed departments. The estat"
innmen'. and maintenance of the segregated
&panments appear to be based on no other
etsttierations than the objective to separate
tatraces " 624 F2d. at 531 remphasis added
lr m1 opinion. this statement is sufficient to
rrtI.sfr the requirements of Rule $!qsr, partic'
ut:ir rn light of the C,ourt of Appeals' gen-
rra. acxnowledgment that it uas bound b1
tnt clearl.v-erroneous rule. See supra. at 296-

ni.72 L Ed 2d. at 84

9. Whether or not the Court of Appeals
expressl.r-. ruled on the fourth James factor is
irrelevant. As the Court of Appeals clearll'
stated. it-s conclusion rra-s based on "the total-
it1- of the facL. and circumstances surround'
ing the creation and continuance of the de-
partmental s)'st.en.) al Pullman-Standard " 624
F2d. at 533: see alsr' id. ,, 532 t"lt is crystal
clear that considerations of race permeated
the negotiation and the adoption of the se
nioritl sl'stenr in 1941 and subsequent negoti-
ations thereafier"t. and id., at 533 t"We con-
sider significant in our decision condi'
tions o1 racial discrimination q'hich affected
the negotiation and renegotiation of the svs'
tem ,"t. Even assumlng that the District
C,ourt was correct in concluding that the svs-
tem had been mainuined free of anl illega)
purpose. the C,ourt of Appeals *'a^. entitled to
conclude that discriminat.orl intent had been
demonstrated on the basis of other relevanl
evidence.

89



U.S. SUPREME COURT REPORTS 72LEd2d

erred in carrying out its appellate
function, I respectfully dissent from
the majority's decision to prolong

respondents' ll-year quest for the
vindication of their rights b-y requir-
ing yet another trial.

EDITOR'S NOTE

An annotation on "Supreme Court's views as to what constitutes factual issue
under 'clearly erroneous' standard of Federal Rule of Civil Procedure 52(a), provid-
ing that findings of fact shall not be set aside unless clearly erroneous," appears p
890, infra.

90