The American Tobacco Company v. Patterson Brief for the Equal Employment Opportunity Commission

    No. 80-1199

3tt %  ^itprrntp (Court of %  lu ttr i itatrn
October Term , 1981

T h e  A m erican  T obacco Com pany , et  al.,
PETITIONERS

V.

J o h n  P atterson , et  al .

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Rex E. Lee
Solicitor General 

W m . Bradford Reynolds 
Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

David A. Strauss 
Assistant to the Solicitor General
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217

ConstanceL. Dupre 
Acting General Counsel

P h il ip  B. Sklover
Acting Associate General Counsel 

Vella M. F in k  
Assistant General Counsel

W illiam  H. Ng 
Attorney. .  . "

Equal Employment Opportunity Commission 
2401 E Street, N.W.
Washington, D.C. 20506



QUESTION PRESENTED

Whether Section 703(h) of the Civil Rights Act 
of 1964 protected petitioners’ decision to adopt 
racially discriminatory lines of employee progression 
from a timely challenge.

0 )





TABLE OF CONTENTS
Page

Opinions below...................... -..............................-.......... - 1

Jurisdiction. ....................... -.......... -....... - ......—------------- 2

Statement ..........................................................................  2

Summary of argument -.......................................  11-

Argument :
I. Section 703(h) does not bar a timely challenge

to the post-Act adoption of an aspect of a senior­
ity system .....................................    15
A. This case presents a challenge to the adop­

tion, not the operation, of the lines of pro­
gression ......................-.... - ................. -... -......  15

B. By its terms, Section 703 (h) does not exempt
the decision to adopt an aspect of a seniority 
system from Title VII ..................................— 19

C. Immunizing the decision to adopt an aspect
of a seniority system from timely challenge 
would not serve the purposes of Section 
703(h) and would thwart the central pur­
poses of Title V I I ............-............... -..............  22

II. Petitioners’ lines of progression are not a bona
fide aspect of a seniority system .......... - ............  35

Conclusion ......................... ............................. ..................  I 2

TABLE OF AUTHORITIES
Cases:

Alabama Power Co. V. Davis, 431 U.S. 581 ........... 30
Albemarle Paper Co. V. Moody, 422 U.S. 405.......21, 27, 41
Alexander V. Aero Lodge No. 735, 565 F.2d 1364,

cert, denied, 436 U.S. 946 .......... ......... -..............  18

(III)



IV

Cases—Continued Page
Alexander v. Gardner-Denver Co., 415 U.S. 36.....  27
Alexander V. Louisiana, 405 U.S. 625 ....................  38
Bartmess V. Drewrys U.S.A., Inc., 444 F.2d 1186.... 20
California Brewers Association V. Bryant, 444 U.S.

598 _________ __ ________ 26, 30, 31, 33, 34-35, 36, 37
Carson V. American Brands, Inc., No. 79-1236

(Feb. 25, 1981) ...... .................... ..... ....... .... ......  27
Chardonw. Fernandez, No. 81-249 (Nov. 2, 1981).. 19
Christiansburg Garment Co. V. EEOC, 434 U.S.

412 .......................................... ............. ....... ..... . 17
Chromocraft Corp. V. EEOC, 465 F.2d 745 .......... . 27
Dandridge V. Williams, 397 U.S. 471 .......................  37
Dayton Board of Education V. Brinkman, 443 U.S.

526 ........... ............ ............... ........ ...... ......... .........  37
Delaware State College V. Ricks, 449 U.S. 250...... . 18, 20
Dothard V. Rawlinson, 433 U.S. 321 ............ ..........  17, 41
Emporium Capwell Co. V. Western Addition Com­

munity Association, 420 U.S. 5 0 -------- ---- -------  20
Ford Motor Co. V. Hoffman, 345 U.S. 330 ------- ..... 31
Franks V. Bowman Transportation Co., 424 U.S.

747 .................... ......... ....... ........ - ...... ...17, 21, 23, 26, 28
Fumco Construction Corp. V. Waters, 438 U.S.

567   ......................... ..  .............. ........ ........  33-34
Griggs V. Duke Power Co., 401 U.S. 424....11-12, 17,19, 29,

33, 34, 41
Hameed V. International Association of Bridge

Workers, Local 396, 637 F.2d 506 —__ _____ ... 37
Hankerson V. North Carolina, 432 U.S. 233 ........... 37
Humphrey V. Moore, 375 U.S. 335 __ ___ __ ____  30
Hunter V. Westinghouse Electric Corp., 616 F.2d

267 .......... ............... ____ ____ _ _ ________  16
International Brotherhood of Teamsters V. United 

States, 431 U.S. 324...—.9 ,18, 22, 23, 25, 30, 33, 35, 36,
37, 41

International Union of Electrical Workers V. Rob­
ins & Myers, Inc., 429 U.S. 229 _____ _________  16

Jersey Central Power & Light Co. v. Local 327,
IBEW, 508 F.2d 687 .+ ,H.V................................ . 31



V

Cases—Continued Page
Laffey V. Northwest Airlines, Inc., 567 F.2d 429,

cert, denied, 434 U.S. 1086 .......... ...... ..... -..........  18
Local Lodge No. 1&24, International Association of

Machinists V. NLRB, 362 U.S. 411 ........... .........  21
McDonnell Douglas Cory. V. Green, 411 U.S. 792.... 39, 41
Mohasco Cory. V. Silver, 447 U.S. 807 ............. .....  16
Nashville Gas Co. V. Satty, 434 U.S. 136........ ......  19
Newman V. Piggie Park Enterprises, Inc., 390

U. S. 400 .................................... .............. ..............  17
Occidental Life Insurance Co. V. EEOC, 432 U.S.

355 .... - ........ ....... .................... ,...... -.... ...............  27-28
Old Colony Trust Co. V. Commissioner, 301 U.S.

379 ..................... .................. -....... ...................... - 20
Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 ............................ -.... . 39,40
Pettway V. American Cast Iron Pipe Co., 494 F.2d211 .......................... ............ ;....,.... ....... :--- -------  29
Rosen V. Public Service Electric & Gas Co., 477

F.2d 9 0 ....... ....................... - ....... ............... —-----  20
Rowe V. General Motors Corp., 957 F.2d 348 ------- 38
Sears V. Bennett, 645 F.2d 1365, petition for cert, 

pending sub nom. United Transportation Union
V. Sears, No. 81-221......................... ........ ...........  40

Trans World Airlines, Inc. V. Hardison, 432 U.S.
63 ........................................................... -......... ~~~ 30,37

United Air Lines, Inc. V. Evans, 431 U.S. 553-----  18
United States V. Georgia Power Co., 634 F.2d 929, 

petition for cert, pending sub nom. Local 8U,
IBEW  V. United States, No. 80-2117 _____ .____  36, 37

United States V. Hayes International Corp., 456
F.2d 112 ............ ........................... ... - ........ - - - - -  29

United States V. N.L. Industries, Inc:, 479 F.2d
354 ........... -................... - ...................... - - ............  27

United Steelworkers of America V. Weber, 443 U.S.
193 —.......... ....... -.................... .......... ..... ............. - 35

Village of Arlington Heights V. Metropolitan Hous­
ing Development Corp., 429 U.S. 252 ---- --------  39, 40

Washington v. Davis, 426 U.S. 229 ....................... 39



VI

Statutes and rule: Page
Civil Rights Act of 1964, Title VII, 42 U.S.C.

2000e et seq...... .......... .............................. ....... . 2
Section 703(a) (2), 42 U.S.C. 2000e-2(a) (2).. 12,19,

21
Section 703 (c) (2), 42 U.S.C. 2000e-2(c) (2).. 19
Section 703(c) (3), 42 U.S.C. 2000e-2(c) (3).. 19, 21
Section 703(h), 42 U.S.C. 2000e-2 (h) ........... passim
Section 706(b), 2000e-5(b) .... ................. ......  27
Section 706(e), 42 U.S.C. 2000e-(5) (e)..... . 16
Section 713(b), 42 U.S.C. 2000e-12(b) ____  39

78 Stat. 260...... .................. ........................................  15
Fed. R. Civ. P. 60(b)(5) ....................................... 9

Miscellaneous:
Aaron, Reflections on the Legal Nature and En­

forceability of Seniority Rights, 74 Harv. L.
Rev. 1532 (1962) ............... .......... ............ ..... . 30

110 Cong. Rec. (1964) :
p. 486 ........ ........................................................  24
p. 1518__________ ____ _____ ________ __  24
p. 2726 .... ............ ................... ....... - ................  21, 24
p. 2804 ......... ............. ......... ................... ...........  23
p. 5094 ..................... ....... ....... ......... ................  32
p. 5423 ................ ......... - .......... ............... ........  32
p. 6549 ........ ............ ........................... ........ ......  25, 32
pp. 6553-6554 ______ _____ _______ ____ ___ 32
p. 6564 ....... ..... .. .................... ....... ....... ...........  25
p. 6566 ____ ___ ___ ____ ____ _____ - ........  14
p. 7206 .......... ............ ................ -........... - .........  23
p. 7207 .......       25
p. 7213_________      25
pp. 7266-7267 „„_______ ____ ~~~............... . 21
p. 9111..... ........ - ...... -......... .......... -.............. . 24
p. 9113 .........         24
p. 11471   24
p. 11486 .................... - ..... ........ ................ ........  38
p. 11848 ............ ............. -----....... ....... ............  32
p. 11931 _______     23
p. 12723 ____ ___ ______ -.................... -..........  18, 23



VII

Miscellaneous—Continued Page
Cooper & Sobol, Seniority and Testing Under Fair 

Employment Laws: A General Approach to Ob­
jective Criteria of Hiring and Promotion, 82
Harv. L. Rev. 1598 (1969) ..... ........... ...... ..........  31,36

EEOC, Legislative History of Titles VII and XI
of Civil Rights Act of 1964 (1964) .......... ..........  21

31 Fed. Reg. 10270 (1966) ......................................  39
H.R. 7152, 88th Cong., 2d Sess. (1964) ............... 23
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963).... 24, 30,

32
Vaas, Title VII: Legislative History, 7 B.C. Indus.

& Com. L. Rev. 431 (1966) ..................................  21



1\\ tip &xx$xm? (to rt rtf tip Httltrb dtatrjs
October T erm , 1981

No. 80-1199
T h e  A m erican  T obacco Com pany , et  al .,

PETITIONERS

V.

J o h n  P atterson , et  al .

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

OPINIONS BELOW

The en banc decision of the court of appeals (App. 
135-184) is reported at 634 F.2d 744. The decision 
of the panel of the court of appeals (App. 112-134) 
is reported at 586 F.2d 300. The decision of the 
district court (App. 109-111) is unofficially reported 
at 18 Fair Empi. Prac. Cas. (BNA) 371. An earlier 
decision of the court of appeals (App. 70-107) is re­
ported at 535 F.2d 257. Earlier opinions of the 
district court (App. 2-49, 50-69) are unofficially re­
ported at 11 Fair Empl. Prac. Cas. (BNA) 577 and 
8FairEmpl. Prac. Cas. (BNA) 778.

( 1)



2

JURISDICTION

The judgment of the court of appeals was entered 
on November 18, 1980. The petition for a writ of 
certiorari was filed on January 16, 1981, and granted 
on June 15, 1981. The jurisdiction of this Court rests 
on 28 U.S.C. 1254(1). ‘

STATEMENT

The Equal Employment Opportunity Commission 
and the private respondents brought these actions, 
which were consolidated for trial in the United 
States District Court for the Eastern District of 
Virginia in 1973. Both suits alleged that petitioners’ 
promotion and seniority practices had confined blacks 
to low-paid, segregated jobs, in violation of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. 2000e et 
seq. (App. 2-3) J

1. Petitioner American Brands, Inc., and its sub­
sidiary, the American Tobacco Company, operate two 
plants—the “Virginia branch” and the “Richmond 
branch”—in Richmond, Virginia. Each branch is di­
vided into a prefabrication department, which blends 
and prepares tobacco for further processing, and a 
fabrication department, which manufactures the fin­
ished product (App. 16, 75). Petitioner Tobacco 
Workers’ International Union and its affiliate, Local 
182, are the collective bargaining agents for hourly- 
paid production workers at both branches (App. 17).2

1 “App.” refers to the Joint Appendix filed in this Court. 
“J.A.” refers to the Joint Appendix filed in the court of 
appeals. “Exh. App.” refers to the Exhibits Appendix filed in 
the court of appeals.

2 The international union was named as a defendant only 
in the private action (App. 3).



3
Both the company and the union concede that until 

at least 1963, they engaged in open race discrimina­
tion involving every aspect of employment at the two 
plants—jobs, cafeterias, lockers, and plant entrances 
(App. 75). Petitioner union maintained two segre­
gated locals; blacks were represented by all-black 
Local 216, while whites were represented by all- 
white Local 182 (App. 19). Black employees were 
assigned to jobs in the “historically black” prefabri­
cation departments and were generally not assigned 
to jobs in the “historically white” fabrication de­
partments (App. 77, 78, 33). Jobs in the prefabrica­
tion departments pay less than jobs in the fabrication 
departments (App. 33-34). The small proportion of 
blacks in the fabrication departments generally held 
manual labor or cleaning jobs (Exh. App. 46-48; 
App. 33).

Seniority governed layoffs and promotions (App. 
75). Under the seniority system maintained by pe­
titioners until 1963, the prefabrication departments 
each constituted one seniority unit and the fabrica­
tion departments constituted separate seniority units 
(App. 75). Thus an employee could transfer from 
one of the predominantly black prefabrication depart­
ments to one of the predominantly white fabrication 
departments only by forfeiting his seniority.

In 1963, petitioners came under pressure from gov­
ernment procurement agencies enforcing the anti- 
discrimination obligations of government contractors 
(App. 75; J.A. 202). They dropped departmental 
seniority; instead, employees forfeited seniority only 
when they transferred between the Richmond branch 
and the Virginia branch (App. 75).3 At the same

3 The union locals were also merged in 1963, with the 350 
members of the black local absorbed into the 1400-member 
white local. None of the officers of the black local retained 
his position (J.A. 202-203, 247, 500).



4
time, however, petitioners stopped using seniority 
alone to determine who would be promoted. Instead, 
employees had to apply for openings, and the openings 
were not posted; employees learned of them only by 
being canvassed by supervisors (App. 76, 28)—vir­
tually all of whom were white.4 Promotions were 
then awarded to the most senior “qualified” employee 
who applied. The company did not maintain writ­
ten job descriptions; “qualified” meant that an em­
ployee “had filled a particular job before and was, 
in the opinion of supervisory personnel, familiar with 
it” (App. 28). Between 1963 and 1968, when this 
promotions policy was in force, virtually all the va­
cancies in the fabrication departments were filled by 
white employees. Many of these employees had less 
plant seniority than blacks (App. 32). The fabri­
cation departments thus remained predominantly 
white.® The district court held that this promotion

4 At the Virginia branch, the first black supervisor was 
appointed in 1963. By 1969, only three of the 71 supervisory 
employees were black (App. 34). The first black supervisor 
at the Richmond branch was appointed in 1966, and by 1969 
there remained one black supervisor among a total of approxi­
mately 30 supervisory employees (App. 35). Between 1963 
and 1969 there appear to have been more than 30, and per­
haps more than 40, vacancies in supervisory jobs (compare 
Exh. App. 130-131 with App. 96).

6 In the Virginia branch there were 82 blacks in the fabri­
cation department in 1963 and 88 in 1968 (Exh. App. 47). The 
Virginia branch fabrication department appears to have in­
cluded approximately 660 employees (see Exh. App. 57). In 
the Richmond branch there were six blacks in 1963 and 12 in 
1968 in the fabrication department (Exh. App. 48) ; that de­
partment included approximately 60 employees (see Exh. App. 
58). The prefabrication departments, by contrast, were pre­
dominantly black (see App. 77-78). Most of the blacks in 
the fabrication departments continued to hold manual labor 
or cleaning jobs (Exh. App. 33, 48).



5

policy was racially discriminatory (App. 8, 32), and 
the court of appeals agreed (App. 75, 78).

In January 1968, the company began posting va­
cancies, although it continued not to provide written 
job descriptions (App. 21, 76). Then, according to 
the company, on November 14, 1968,6 it developed 
and proposed the establishment of nine lines of pro­
gression. The union accepted and ratified the lines of 
progression in 1969 (J.A. 246-247). Six of these 
lines of progression are at issue before the Court.7

Each line of progression consisted of only two jobs. 
Apparently no employee was eligible for the “top” 
job in a line until he had worked at least one day 
in the “bottom” job.8 According to the company,

8 Stipulations of fact adopted by the district court specify 
that the posting system was instituted on January 15, 1968 
(App. 21). The stipulation does not identify the date on 
which the company proposed the nine lines of progression. 
In his opening statement at trial, counsel for the company 
said that “the[ ] lines of progression * * * were finally 
set up at a meeting in November 1968 * * *” (Tr. 34). Russell 
Penn Truitt, a member of the company’s board of directors 
and director of manufacturing (Tr. 786, 789), testified at 
trial that the “lines of progression Were established” (J.A. 
570) at a meeting that was held on “November 14, 1968” 
(J.A. 571).

The court of appeals stated that the lines of progression 
were instituted in January 1968 (App. 143), but the court 
made no reference to the company’s statements, and it was 
immaterial to the court’s holding whether the lines were 
adopted in January or November of 1968.

7 The district court held that the others did not violate 
Title VII (App. 31-32) and respondents do not now challenge 
this ruling.

8 Two lines appear to have had alternative bottom jobs. See 
page 6, note 9 infra.



6
among employees who had worked in the “bottom” 
job the one with the most seniority within the plant 
would receive# the “top” job (App. 142-143 n.3). 
Of the six lines at issue here, four consisted of nearly 
all-white “top” jobs from the fabrication depart­
ments linked with nearly all-white “bottom” jobs 
from the fabrication departments; the other two con­
sisted of all-black “top” jobs from the prefabrication 
departments linked with all-black “bottom” jobs from 
the prefabrication departments.9 The top jobs in the 
“white” lines of progression were among the best­
paying jobs in the plants (Exh. App. 155-163). While 
it appears that more than two-thirds of the em­
ployees in the two plants were in a line of progres­
sion,10 very few of these employees were in the

9 The lines of progression at issue here are (App. 21-22, 
31-32) :

1. Learner-adjuster (top)
Packing or making machine operator, Schmermund 
boxer operator (bottom)

2. Examiner-making (top)
Catcher (bottom)

3. Examiner-packing (top)
Line searcher—Schmermund boxers (bottom)

4. Turbine operator (top)
Boiler operator (bottom)

5. Adt dryer operator (top)
Assistant adt dryer operator (bottom)

6. Textile dryer operator (top)
Assistant textile dryer operator (bottom)

Both jobs in lines 5 and 6 were in theffabri cation departments 
(Plaintiffs’ Exh. 1), and both were all black (Exh. App. 160, 
161, 171-172). All jobs in the remaining lines were located in 
the fabrication department and were nearly all white (Exh. 
App. 25-37, 46-48, 158-160).

10 In 1973, 646 of the 952 hoursly-paid workers in the two 
branches were in the lines of progression. Only five of these 
employees were in the “black” lines. Exh. App. 158-162.



7

“black” lines (Exh. App. 158-161). At the Virginia 
branch, which was only 15% black (App. 34-35), 
approximately four times as many black employees 
as white employees were outside the lines of progres­
sion entirely. At the Richmond branch, which was 
one-third black (App. 35), approximately six times 
as many blacks as whites were outside the lines (see 
Exh. App. 158-162).

Between 1968, when the lines of progression were 
instituted, and 1973, when these actions were brought, 
there were approximately 30 vacancies in top jobs 
in the “white” lines of progression (Exh. App. 38- 
47). One of those vacancies was filled by a black; 
the other 120 top positions continued to be held by 
whites (see Exh. App. 158-161). The bottom jobs in 
these lines were also predominantly white, despite 
numerous vacancies (see Exh. App. 38-47, 158-161). 
No whites held jobs in the “black” lines (see Exh. 
App. 160-162). Segregation continued in other re­
spects as well; in the two plants’ prefabrication de­
partments, for example, approximately 81% and 92% 
of the hourly-paid production workers were blacks 
(App. 19, 77).

2. On January 3, 1969, 50 days after the company 
proposed the establishment of the lines of progres­
sion, three black employees (including one of the pri­
vate respondents) filed charges with the EEOC, al­
leging that they had been denied seniority and wage 
benefits because petitioners discriminated on the basis 
of race.11 Copies of these charges were served on pe-

11 App. 102, 6-7. Exhs. A-l to A-20 attached to the 
Commission’s first request for admissions; company’s re­
sponse to the EEOC’s first request for admissions.



8

titioners on February 19, 1969.12 The Commission 
found reasonable cause to believe that petitioners’ 
seniority, wage, and job classification practices had 
discriminatorily restricted blacks to low paying seg­
regated jobs in violation of Title VII. When con­
ciliation efforts failed, the Commission brought this 
action.13

After an extensive trial, the district court held that 
petitioners’ seniority, promotion, and job classifica­
tion practices violated Title VII (App. 8-9). The 
court found that petitioners maintained seniority and 
other employment practices which continued the seg­
regation that had been explicitly enforced until 1963 
(App. 32). In particular, the court ruled that the 
six lines of progression “perpetuated past discrimina­
tion on the basis of * * * race” (App. 32), and be­
cause petitioners offered no business justification for 
the six lines, the district court held that they violated 
Title VII and enjoined the company and union from 
using them further (App. 31-32, 57).

In 1976, the court of appeals affirmed.14 It ex­
pressly endorsed the district court’s finding that 
“after the effective date of Title VII the company and 
the union discriminated in the promotional policies

12 Exhs. B-l to B-7 of Commission’s first request for 
admissions; company’s response to EEOC’s first request for 
admissions; union’s response to EEOC’s first request for 
admissions.

13 The EEOC also charged petitioners with sex discrimina­
tion. The district court upheld this charge (App. 8) and 
the court of appeals affirmed (App. 74). There is no need 
to consider the claim of sex discrimination in connection with 
the lines of progression at issue here.

14 The court of appeals modified the district court’s remedy 
(see App. 83, 91) in ways that are not relevant here.



9

of their bargaining agreements” (App. 78). In par­
ticular, the court agreed with the trial court that 
the six lines of progression, the rule requiring 
employees to forfeit their senority if they transferred 
between branches, the reliance on the subjective eval­
uations of white supervisors, and the failure to post 
written job descriptions all violated Title VII. With 
respect to jobs in the six lines of progression enjoined 
by the district court, the court of appeals noted that 
“ [mjost of these jobs were in the fabrication depart­
ments. Since black employees had been largely ex­
cluded from the fabrication departments, they held 
few jobs in most of these lines and could not advance 
despite their seniority” (App. 78-79). In this re­
spect, the court of appeals ruled, the lines of progres­
sion operated “in a manner similar to the [pre-1963] 
segregated departmental seniority rosters” (App. 
79), permitting the company to carry forward segre­
gated employment patterns. This Court denied a pe­
tition for a writ of certiorari. See 429 U.S. 920
(1976).

3. In 1977 petitioners moved to vacate the dis­
trict court’s 1974 decree.1* Petitioners relied pri­
marily on International Brotherhood of Teamsters 
v. United States, 431 U.S. 324, 353-354 (1977), 
which held that Section 703(h) of the Civil Rights 
Act, 42 U.S.C. 2000e-2(h), exempts certain bona fide 
seniority systems from the provisions of Title VII. 
Petitioners argued, among other things, that their 
seniority systems, including the six lines of progres­
sion, were bona fide and therefore not in violation of

16 The company and the union did not identify the basis for 
their motion. The court below treated petitioners’ application 
as a motion under Rule 60(b) (5) of the Federal Rules of 
Civil Procedure (App. 187 n .l).



10

Title VII. The district court declined to modify its 
order, holding that petitioners’ “seniority system
* * * is not a bona fide system under Teamsters
* * * because this system operated right up to the 
day of trial in a discriminatory manner * * * [and] 
had a discriminatory genesis” (App. 110).

A panel of the court of appeals agreed that 
“Teamsters requires no modification of the relief 
we approved with regard to job descriptions, lines of 
progression * * * or supervisory appointments” be­
cause those employment practices were not part of a 
seniority system and therefore did not fall within 
Section 703(h) (App. 116). The court of appeals 
then reheard the case en banc and held that Ҥ 703 
(h) * * * has no application to [petitioners’] job 
lines of progression policy, whether or not it be 
considered a ‘seniority system’ * * * ![because] [ t] his 
policy was not in effect at American in 1965 when 
Title VII went into effect” (App. 142-143). The 
court of appeals concluded that the “legislative his­
tory of § 703(h) * * * demonstrates that Congress 
intended the immunity accorded seniority systems by 
§ 703(h) to run only to those systems in existence at 
the time of Title VII’s effective date, and * * * to 
routine post-Act applications of such systems” (App. 
143-144). Because the lines of progression were 
instituted in 1968 and thus did not create any pre- 
Act expectations, the court of appeals did not disturb 
the district court’s injunction against the six lines of 
progression.16

16 The en banc court remanded for a hearing on, among 
other things, the bona tides of the rule that seniority was 
forfeited when an employee transferred between branches 
(App. 145-146, 147-154).

In dissent, Judge Widener, joined by Judge Russell, asserted 
that the lines of progression were established before the



11

SUMMARY OF ARGUMENT

I. The court of appeals’ judgment is correct, but 
in our view its rationale is too broad. The court 
overlooked the distinction between the decision to 
adopt an aspect of a seniority system and the sub­
sequent employment decisions made in implementing 
the system. Unlike the court of appeals, we believe 
that Section 703(h) protects applications of a sen­
iority system even if the system, or the challenged 
aspect of the system, was instituted after the effec­
tive date of Title VII.

Respondents, however, filed a timely challenge to 
the adoption of petitioners’ lines of progression. Sec­
tion 703(h) does not immunize the decision to adopt 
an aspect of a seniority system, when that decision 
is properly challenged. By interpreting Section 703(h) 
to protect the application of a seniority system but 
not the decision to adopt an aspect of a seniority sys­
tem, the Court can give full force to the language and 
policies of that Section without undermining the cen­
tral purpose of Title VII—something Section 703(h) 
was never intended to do.

1. When petitioners instituted the lines of progres­
sion, they established a newT qualification for the 
“top” jobs; no matter how senior he might be, an 
employee seeking a “top” job had to have served 
in a “bottom” job. Because the “bottom” jobs in the 
most desirable lines of progression had been deliber­
ately reserved to whites, the decision to adopt the 
lines of progression “operate[d] to ‘freeze’ the status 
quo of prior discriminatory employment practices” 
{Griggs v. Duke Power Co., 401 U.S. 424, 430

effective date of Title VII (App. 161-177) and that Section 
703(h) immunizes the post-Act establishment of seniority 
systems in any event (see App. 160 n .l).



12

(1971)), ensuring that virtually no blacks would 
be promoted to “top” jobs. Moreover, the lines of 
progression now at issue were not justified by a busi­
ness necessity. It follows that permitting the lines of 
progression to be instituted would have been incon­
sistent with a central prohibition of Title VII—that 
employers and unions may not “limit * * * or clas­
sify” employees “in any way which would deprive or 
tend to deprive any individual of employment op­
portunities * * * because of * * * race” (42 U.S.C. 
2000e-2(a) (2)).

2. At the same time, neither the language nor the 
purposes of Section 703(h) require that the decision 
to adopt the lines of progression be immunized. Al­
though the distinction between adopting and imple­
menting a provision of a collective bargaining agree­
ment was established under the National Labor 
Relations Act, on which Title VII was modeled, 
Congress drafted Section 703(h) to protect only em­
ployment decisions made “pursuant to” a seniority 
system; the language of Section 703(h) does not cover 
the decision to adopt an aspect of a seniority system. 
The legislative history demonstrates that the prin­
cipal purpose of Section 703(h) was to protect em­
ployees’ seniority “rights”—that is, the expectations 
employees acquire on account of having worked for a 
period of time under a seniority system. A timely 
challenge to the decision to adopt a new aspect of a 
seniority system, such as respondents’ challenge to 
petitioners’ decision to institute the lines of progres­
sion, in no way threatens these expectations, for it 
occurs before legitimate expectations can develop. 
Indeed, it was the decision to adopt the lines of 
progression which prevented employees from using 
their seniority “rights” to obtain top jobs; in this 
way, respondents’ challenge to the lines of progression



13

actually vindicated expectations based on the seniority 
system.

Petitioners assert that unless they are free to 
adopt such measures as the lines of progression policy 
without regard to the prohibitions of Title VII, they 
will be unable to adapt to changing circumstances. 
But the courts below did not impose any extraordi­
nary limitation on petitioners. They merely required 
that petitioners justify the additional employment 
qualifications imposed by the lines of progression 
policy in the same way they would justify any other 
employment qualifications that served the same pur­
pose of filling jobs with properly trained and experi­
enced employees. Because employees had developed 
no expectations in the continued operation of the lines 
of progression policy, the circumstance that that 
policy was part of a seniority system should not ex­
cuse petitioners from having to show that the lines 
are not an artificial and unnecessary barrier to em­
ployment with a discriminatory effect on blacks.

There is, to be sure, substantial basis for conclud­
ing that Congress considered it inappropriate to re­
quire employers and unions to show a business neces­
sity for using the seniority principle to reconcile 
members’ conflicting interests and otherwise to or­
ganize the workplace. But the lines of progression 
at issue here do not serve any of these functions; 
rather, as petitioners acknowledge, they qualify the 
use of seniority in order to serve the same manage­
ment needs as other employment practices that would 
undoubtedly be subject to the prohibitions of Title 
VII. There is, therefore, no reason to exempt the 
decision to adopt the lines of progression from those 
prohibitions.

II. The Court may also affirm the judgment of 
the court of appeals on the alternative ground that



14

the lines of progression policy is not bona, fide and 
therefore not within Section 703(h). The district 
court, on the basis of its extensive familiarity with 
the case, held that the lines of progression policy 
was not bona fide; this holding was not questioned 
by the court of appeals and is strongly supported by 
the record.

Petitioners maintained explicit segregation until 
at least 1963. Under pressure from government agen­
cies, they then modified their promotion practices, 
ostensibly giving black employees the opportunity to 
obtain jobs previously reserved for whites; but the 
new system they adopted depended heavily on the 
standardless, subjective evaluations of white super­
visors. Consequently, the jobs previously reserved to 
whites continued to be held by whites. The district 
court and the court of appeals held that this promo­
tion practice was racially discriminatory.

In 1968, petitioners, again under pressure from 
the government, shifted to the lines of progression 
policy. This policy had the predictable effect of con­
tinuing the same segregated employment patterns 
that had previously existed, essentially excluding 
blacks from the better jobs. In view of both the 
company’s and the union’s previous explicit com­
mitment to segregation, and their previous choice of 
practices that would continue segregation in effect, 
there is a substantial basis for inferring that peti­
tioners adopted the lines of progression practice at 
least in part because it would continue the segre­
gated employment patterns.

Moreover, petitioners were unable to identify the 
business purposes served by the six lines of progres­
sion at issue here—despite having an opportunity, 
and every incentive, to do so at the first trial. Be­
cause the lines did not serve a business purpose, and



15

did serve an objective the company and union had 
long and persistently pursued—reserving the best 
jobs for whites—the district court was justified in 
concluding that the latter objective at least partially 
motivated the decision to adopt the lines of progres­
sion, rendering them not bona fide.

ARGUMENT

L SECTION 703(h) DOES NOT BAR A TIMELY CHAL­
LENGE TO THE POST-ACT ADOPTION OF AN 
ASPECT OF A SENIORITY SYSTEM

A. This Case Presents a Challenge to the Adoption, 
Not the Operation, of the Lines of Progression

1. While the judgment of the court of appeals was 
correct, its rationale, in our view, is too broad. Spe­
cifically, the court of appeals overlooked the distinc­
tion between a challenge to the adoption of a sen­
iority system and a challenge to the system’s operation. 
Contrary to the court of appeals, we believe that 
Section 703(h) applies to a challenge to the opera­
tion of an aspect of a seniority system, even if that 
aspect was instituted after the effective date of Title 
VII. But Section 703(h) should not apply to a timely 
challenge to the post-Act adoption of an aspect of a 
seniority system.

Respondents’ claim is properly seen as a challenge 
to the adoption, not the operation, of the lines of 
progression. The company asserted that the lines 
were adopted on November 14, 1968, and the private 
respondents filed a charge with the EEOC before 
the statutory charging period elapsed.17 Until the

17 Respondents filed their charge within 50 days. At the 
time the private respondents filed their charge, Title VII 
generally required charges to be filed within 90 days of an 
alleged violation. 78 Stat. 260. Section 706(e), added in 1972,



16
district court enjoined their operation, the lines were 
applied in making various employment decisions, but 
those applications merely furnished additional evi­
dence in support of the claim that the decision to 
institute the lines violated Title VII.

If respondents had not filed a timely challenge to 
the adoption of the lines of progression, and had 
instead challenged only subsequent promotion deci­
sions made pursuant to the lines of progression policy, 
Section 703(h) would, in our view, apply to their 
claim. Such a claim could succeed only if the lines 
of progression were not part of a seniority system 18 
or were not bona fide, even though the lines were 
adopted after the effective date of Title VII. But to 
interpret Section 703(h) to bar a timely challenge 
to the adoption of the lines of progression would 
thwart the basic purpose of Title VII without any 
sufficient justification in the language of Section 
703(h) or the policies underlying that Section. Be­
cause respondents made a timely challenge to the

now generally requires aggrieved persons to file a charge 
with the EEOC “within one hundred and eighty days after 
the alleged unlawful employment practice occurred.” 42 U.S.C. 
2000e-5(e). See generally Mohasco Corp. V. Silver, 447 U.S. 
807 (1980). This period should also apply here, because the 
private respondents’ charge was pending with the EEOC on 
March 24, 1972, the effective date of the 1972 amendment. 
See, e.g., Hunter v. Westinghouse Electric Corp,, 616 F.2d 
267 (6th Cir. 1980). See also International Union of Elec­
trical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 241-243 
(1976).

18 In our view, the court of appeals panel was correct in its 
conclusion that the lines of progression policy was not an 
aspect of petitioners’ seniority system. See pages 35-37, note 
31 infra. Throughout this discussion, however, we shall, like 
the en banc court of appeals, assume arguendo that the lines 
of progression are part of a “seniority * * * system” within 
the meaning of Section 703(h).



17
adoption of the lines of progression, Section 703(h) 
does not require modifying the district court’s in­
junction against the use of the lines.

2. By adopting the lines of progression, petitioners 
instituted a new qualification that had to be met by 
employees seeking one of the high paying “top” jobs 
formerly confined to whites. Irrespective of his sen­
iority, and whatever his other qualifications, an em­
ployee had to have served in one of the “bottom” 
jobs. Because the “bottom” jobs were historically 
confined to whites as well, the new qualification im­
posed by the lines of progression predictably “op­
erate [d] to ‘freeze’ the status quo of prior discrimi­
natory employment practices” (Griggs v. Duke Power 
Co., 401 U.S. 424, 430 (1971)); practically no blacks 
were promoted to the “top” jobs. This new qualifica­
tion was “not justified by any business necessity” 
(App. 31-32).

These facts were found by the district court in 
1974 and affirmed by the court of appeals in 1976, 
and petitioners do not appear to take issue with them 
here. It is a central policy of Title VII—“ ‘a policy 
that Congress considered of the highest priority’ ” 
(Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 
418 (1978), quoting Newman v. Piggie Park Enter­
prises, Inc., 390 U.S. 400, 402 (1968); see Franks v. 
Bowman Transportation Co., 424 U.S. 747, 763
(1976) )—that an employer or union may not impose 
job qualifications which perpetuate the effects of past 
discrimination without serving a busines necessity. 
See Dothard v. Rawlinson, 433 U.S. 321, 328-332
(1977) ; Griggs v. Duke Power Co., supra.

Petitioners nonetheless assert that they should be
allowed to reinstate the additional qualification im­
posed by the lines of progression policy. In par­
ticular, they claim that the lines of progression are



18

an aspect of a seniority system and are therefore 
protected by Section 703(h). But the language of 
Section 703(h) does not compel the result petitioners 
seek; moreover, no purpose of Section 703(h) would 
be served—and the central purpose of Title VII would 
be disserved—by permitting this result. Congress 
enacted Section 703(h) not to “narrow [the] ap­
plication of * * * [TJitle [VII]” or undermine its 
basic objectives but only to “clarif [y] its * * * intent 
and effect.” 110 Cong. Rec. 12723 (1964) (remarks 
of Sen. Humphrey) ; see International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 352 
(1977). Here Section 703(h) can be fully reconciled 
with the central purposes of Title VII by sustaining 
our challenge to the adoption of the lines of progres­
sion while not endorsing the court of appeals’ more 
far-reaching assertions that Section 703(h) is inap­
plicable to the operation of any aspect of a seniority 
system if that aspect was instituted after the effec­
tive date of Title VII.1'9

1,9 If a seniority system is not bona fide, then not only its 
adoption but its application is unprotected by Section 703(h). 
See, e.g., International Brotherhood of Teamsters v. United 
States, supra, 431 U.S. at 353; Alexander v. Aero Lodge No. 
735, 565 F.2d 1364, 1378 (6th Cir. 1977), cert, denied, 436 
U.S. 946 (1978). The application of such a discriminatory 
system is a continuing violation which may be challenged as 
long as the violation persists. See United Air Lines, Inc. V. 
Evans, 431 U.S. 553, 560 (1977). See also Delaware State 
College V. Ricks, 449 U.S. 250, 256-257 (1980) ; Laffey v. 
Northwest Airlines, Inc., 567 F.2d 429, 473 (D.C. Cir. 1976), 
cert, denied, 434 U.S. 1086 (1978). But if a seniority system 
is bona fide, then in our view Section 703(h) protects the 
application of the system, even if the system was instituted 
after the effective date of Title VII. In other words, because 
of Section 703(h), the application of a bona fide seniority 
system is not a continuing violation.



19
B. By Its Terms, Section 703(h) Does Not Exempt 

the Decision to Adopt an Aspect of a Seniority 
System from Title VII

1. Under the terms of Section 703(a)(2), 42 
U.S.C. 2000e-2 (a) (2), petitioners’ adoption of the 
lines of progression was clearly an unlawful employ­
ment practice. That section makes it illegal for an 
employer “to limit * * * or classify his employees 
* * * in any way which would deprive or tend to de­
prive any individual of employment opportunities or 
otherwise adversely affect his status as an employee, 
because of such individual’s race * * Section 
703(c)(2), 42 U.S.C. 2000e-2(c) (2), applies es­
sentially the same prohibition to unions. See also 
42 U.S.C. 2000e-2(c) (3). Petitioners restricted 
eligibility for top jobs to those employees who had 
held the bottom jobs; in this way they “limit[ed]” 
employees and “classif [ied] ” them in ways that di­
rectly “deprive[d] [and] tend[ed] to deprive” many 
of them of certain “employment opportunities.” Be­
cause petitioners’ decision to limit and classify em­
ployees in this way gave effect to past intentional 
discrimination, and served no business necessity, it 
was racially discriminatory under Griggs v. Duke 
P-ower Co., supra.20 See Nashville Gas Co. v. Satty, 
434 U.S. 136, 141-143 (1977).

20 It is very likely that at the time the private respondents 
challenged the adoption of the lines of progression policy, 
that policy only limited their prospects and had not yet had a 
concrete effect on their wages or conditions of employment. 
But this did not bar their claim. Section 703(a) (2) refers to 
“classifications]” or “limit[ations]” which affect employ­
ment “opportunities” ; it is not confined to employment prac­
tices or decisions which immediately affect wages or other 
specific benefits. “ [T]he proper focus is on the * * * discrimi­
natory act, not the point at which the consequences of the act 
become painful.” Chardon v. Fernandez, No. 81-249 (Nov. 2, 
1981) slip op. 2 (emphasis in original). Thus, for example, an



20

2. By contrast, the terms of the Section 703(h) 
exemption do not cover petitioners’ decision to adopt 
the lines of progression. Section 703(h) provides that 
“it shall not be an unlawful employment practice for 
an employer to apply different standards of compen­
sation, or different terms, conditions or privileges of 
employment pursuant to a bona fide seniority 
system * * *.” This language addresses only decisions 
made “pursuant to” a seniority system; here, it would 
cover, at most, a decision not to promote a particular 
employee to a top job because he had not worked in 
a bottom job. The decision to adopt a sonority sys­
tem is, plainly, not a decision made “pursuant to” 
that system. See generally Old Colony Trust Co. v. 
Commissioner, 301 U.S. 379, 383 (1937). Moreover, 
in order to challenge the decision to adopt the lines of 
progression, we need not claim that petitioners were 
“apply [ing] different standards of compensation, or 
different terms [and] conditions * * * of employ­
ment” ; under Section 703(a) (2), it suffices that the 
lines of progression policy classified and limited em­
ployees in a way that adversely affected their 
opportunities.

Congress could have drafted Section 703(h) to re­
fer to decisions to adopt a seniority system, had it

employee can—and sometimes must—challenge a decision de­
nying him tenure even while he continues to work for his 
employer. See Delaware State College V. Dicks, supra. Simi­
larly, active employees may challenge a discriminatory retire­
ment plan. See, e.g., Bartmess V. Drewrys U.S.A., Inc., 444 
F.2d 1186, 1188-1189 (7th Cir. 1971). See also Rosen V. Public 
Service Electric & Gas Co., A ll F.2d 90, 94 (3d Cir. 1973). In 
any event, the adoption of a seniority system in a collective 
bargaining agreement binds employees in the bargaining unit, 
and in that sense has an immediate impact on them. See gen­
erally Emporium Capwell Co. V. Western Addition Community 
Association, 420 U.S. 50 (1975).



21

wished to do so. The National Labor Relations Act 
was the model for much of Title VII (see, e.g., 
Franks v. Bowman Transportation Co., 424 U.S. 
747, 768-770 (1976); Albemarle Paper Go. v. Moody, 
422 U.S. 405, 419 & n .ll, 420 & n.12 (1975) ),'21 
and the NLRA distinguishes between the adoption of 
an unlawful term in a collective bargaining agree­
ment and its subsequent implementation; the Court 
has held that the adoption may be an unfair labor 
practice, challengeable only within the statutory 
charging period, while its implementation is not. See 
Local Lodge No. 14.24, International Association of 
Machinists v. NLRB, 362 U.S. 411 (1960). More­
over, members of Congress pointed out that the lan­
guage of Section 703(a)(2) referring to the 
“limit [ing]” and “classify [ing]” of employees would 
cover seniority systems (see, e.g., 110 Cong. Rec. 
2726 (1964) (remarks of Rep. Dowdy)), but Con­
gress did not extend Section 703(h) to “limitations” 
and “classifications”—only to differences in employ­
ment conditions that were the result of the applica­
tion of seniority systems.22

21 See also 110 Cong. Rec. 7266-7267 (1964) (remarks of 
Sen. Ellender) ; EEOC, Legislative History of Titles VII and 
X I of Civil Rights Act of 1964, at 7-9 (1964); Vaas, Title VII: 
Legislative History, 7 B.C. Indus. & Com. L. Rev. 431, 431 & 
n.2 (1966).

22 By its terms Section 703(h) applies only to employers, 
not to unions. In practice, Section 703(h) can operate to im­
munize unions as well; for example, Section 703(c) (3) makes 
it unlawful for a union “to cause or attempt to cause an em­
ployer to discriminate against an individual in violation of 
this section,” so union involvement in a practice protected by 
Section 703(h) cannot by itself give rise to liability under 
Section 703(c) (3).

But it is nonetheless significant that Congress referred only 
to employers in drafting Section 703(h). The application of 
a seniority system, especially insofar as it affects terms and



22
Thus while Section 703(h) exempts actions taken 

in implementing a seniority system, nothing in Sec­
tion 703(h) refers to the adoption or institution of 
a seniority system. Petitioners themselves emphasize 
(e.g., Union Br. 11) Senator Dirksen’s statement 
that the language of Title VII “received meticulous 
attention. We have tried to be mindful of every 
word, of every comma, and of the shading of every 
phrase” (110 Cong. Rec. 11935 (1964)). For these 
reasons, the only conclusion to be drawn from the 
language is that “the unmistakable purpose of 
§ 703(h) [is] to make clear that the routine applica­
tion of a bona fide seniority system would not be 
unlawful under Title VII.” International Brother­
hood of Teamsters v. United States, 431 U.S. 324, 
352 (1977) (emphasis added).

C. Immunizing the Decision to Adopt an Aspect of 
a Seniority System from Timely Challenge Would 
Not Serve the Purposes of Section 703(h) and Would 
Thwart the Central Purposes of Title VII

1. The distinction between the adoption and the 
application of an aspect of a seniority system reflects 
important congressional policies. The legislative his­
tory shows that the central purpose of Section 703(h) 
was not to ensure that employees and unions could 
design and adopt whatever sort of seniority system 
they desired; rather, Section 703(h) was intended to 
protect the expectations employees acquired in the 
continued operation of a seniority system. In other 
words, Section 703(h) rests on a “congressional judg-

conditions of employment, is the responsibility of the em­
ployer. By contrast, the decision to adopt a seniority system, 
or a particular aspect of it, is jointly made by the employer 
and the union. Thus Congress’s reference to employers alone 
is further evidence that Section 703(h) was intended to cover 
only the application, not the adoption, of a seniority system.



23

ment * * * that Title VII should not * * * destroy or 
water down the vested seniority rights of employees 
simply because their employer had engaged in dis­
crimination prior to the passage of the Act.” ln- 
ternational Brotherhood of Teamsters v. United 
States, supra, 431 U.S. at 353. A timely challenge to 
the adoption of a seniority system does not endanger 
this congressional policy, for it occurs before such 
expectations can develop.

Section 703(h) was added to the Civil Rights Act 
in response to criticism by opponents of the Act. See 
International Brotherhood of Teamsters v. United 
States, supra, 431 U.S. at 352.2S Those opponents 
repeatedly argued that “Title VII would undermine 
the vested rights of seniority” (110 Cong. Rec. 7206 
(1964) (statement of Sen. Clark, quoting Sen. Hill)). 
The minority report of the House Committee that 
favorably reported the bill became the Civil Rights 
Act charged that Title VII would “seriously im-

2:3 Section 703 (h) was not part of the bill passed by the 
House, H.R. 7152, 88th Cong., 2d Sess. (1964). See 110 
Cong. Rec. 2804 (1964) ; Franks v. Bowman Transportation 
Co., 424 U.S. 747, 759 (1976). That bill was sent directly to 
the Senate floor where it was filibustered; Senators Mansfield 
and Dirksen eventually submitted a substitute bill that broke 
the filibuster. See Vaas, Title VII: Legislative History, supra, 
7 B.C. Indus. & Com. L. Rev. at 445. Section 703 (h) first ap­
peared as part of this substitute bill. 110 Cong. Rec. 11931 
(1964). Senator Humphrey, one of the drafters of the substi­
tute, explained that Section 703(h) did not alter the meaning 
of Title VII but “merely clarifie[d] its present intent and 
effect.” 110 Cong. Rec. 12723 (1964) ; see Franks v. Bowman 
Transportation Co., supra, 429 U.S. at 761. Thus, as petition­
ers implicitly acknowledge, statements of House proponents 
of Title VII about its effects on seniority, and statements made 
by Senate proponents before Section 703 (h) was proposed, are 
evidence of the meaning of Section 703(h).



24

pair * * * [t]he seniority rights of employees in cor­
porate and other employment * * H.R. Rep. No. 
914, 88th Cong., 1st Sess. 64-65 (1963). Another 
opponent argued that under Title VII “benefits which 
organized labor has attained through the years would 
no longer be matters of ‘right’ * * 110 Cong.
Rec. 486 (1964). Title VII, opponents charged, 
would “destroy union seniority” which was a “most 
valuable asset” (H.R. Rep. No. 914, supra, at 71; 
emphasis in original) and would undermine “estab­
lished seniority” (110 Cong. Rec. 2726 (1964)). Op­
ponents of Title VII outside Congress claimed that it 
would “placet] in jeopardy” the “seniority rights of 
union members.” See 110 Cong. Rec. 9111 (1964).

The bill’s defenders answered these charges in the 
same vein; they focused on employees’ expectations 
about the continued operation of seniority systems. 
Thus the bill’s supporters accused their opponents of 
attempting to “put [people] in fear about * * * sen­
iority” by falsely suggesting that under Title VII 
“seniority systems would be abrogated and * * * 
white men’s jobs would be taken and turned over to 
[blacks].” 110 Cong. Rec. 11471 (1964). This was 
“a cruel hoax * * * [that] generates unwarranted 
fear among those individuals who must rely upon 
their job or union membership to maintain their ex­
istence.” 110 Cong. Rec. 9113 (1964). The chair­
man of the House committee that reported the bill 
said: “It has been asserted * * * that the bill would 
destroy * * * employee rights vis-a-vis the union and 
the employer. This again is wrong.” 110 Cong. Rec. 
1518 (1964) (statement of Rep. Celler). Other House 
proponents explained that “ [T]itle VII * * * does not 
permit interferences with seniority rights of em­
ployees or union members.” 110 Cong. Rec. 6566 
(1964). The Senate managers, Senators Humphrey



25
and Kuchel, explained that “ [t]he full rights * * * of 
union membership * * * will in no way be impaired” 
(110 Cong. Rec. 6549 (1964) (Sen. Humphrey)) 
and that “seniority rights [would not] be affected by 
this act” (110 Cong. Rec. 6564 (1964) (Sen.
Kuchel)).

Perhaps the most “authoritative indicators of [the] 
* * * purpose [of Section 703(h)]” (International 
Brotherhood of Teamsters v. United States, supra, 
431 U.S. at 352) are memoranda submitted during 
the Senate debate by Senators Clark and Case. The 
theme of those memoranda was that Title VII would 
not interfere with seniority “rights” or expectations 
based on seniority systems already established and in 
operation (110 Cong. Rec. 7207, 7213 (1964)):

[I] t has been asserted that title VII would un­
dermine vested rights of seniority. This is not 
correct. Title VII would have no effect on sen­
iority rights existing at the time it takes effect. 

* * * * *
Title VII would have no effect on established 

seniority rights. Its effect is prospective and 
not retrospective.

Thus it seems clear that the principal purpose of 
Section 703(h) was to make explicit Congress’s in­
tention not to “destroy” the “rights” that employees 
acquired under seniority systems. That is, Title VII 
was not to interfere with employees’ expectations 
that a seniority system, once lawfully instituted, 
would continue to operate.

This conclusion is subject to two qualifications. 
First, as we will explain (pages 30-31, infra), it 
cannot fairly be said that this was the only purpose 
of Section 703(h) ; Congress also recognized the im­
portant role that seniority plays in collective bargain­
ing, and its historic importance to workers. Second,



26

while Section 703(h) did protect employees’ seniority 
expectations to some degree, it did not insulate those 
expectations entirely from adjustment. It is well 
established, for example, that a violation of Title VII 
may be remedied by an “award of the seniority credit 
[a victim of discrimniation] presumptively would 
have earned but for the wrongful treatment” even if 
“such relief diminishes the expectations of other, 
arguably innocent, employees * * Franks v. Bow­
man Transportation Co., supra, 424 U.S. at 767, 774.

Nonetheless, the legislative history shows that in 
passing Section 703(h) Congress’s primary concern 
was with employees’ expectations under seniority sys­
tems that were in operation. A timely challenge to 
the adoption of an aspect of a seniority system— 
such as respondents’ challenge to the lines of progres­
sion—in no way impairs these expectations. Respond­
ents challenged the lines of progression soon after 
they were established.24 Petitioners were notified of

124 Judge Widener, dissenting from the en banc decision of 
the court of appeals, argued that the lines of progression 
were adopted before 1965. But Judge Widener made no 
reference to the company’s explicit statement that the lines of 
progression were “set up” and “established” on November 14, 
1968. See page 10, note 16 supra. In any event, Judge Widen- 
er’s argument was simply that between 1963 and 1968, when 
company supervisors were using their discretion to decide 
whether an applicant for a job was “qualified,” they would 
consider, together with a variety of other factors, the appli­
cant’s experience in other jobs in the plant (App. 162, 169). 
This cannot be enough to show that there were defined lines of 
progression that were an aspect of a seniority system. See 
California Brewers Association V. Bryant, 444 U.S. 598, 609- 
610 (1980) (“ [A] standard that gives effect to subjectivity” 
“depart [s] significantly from commonly accepted concepts of



27

the challenge within six weeks.25 Thus employees 
could not have justifiably relied on the continued ex­
istence of the lines of progression and developed 
legitimate expectations based on the lines.26 See Oc-

‘seniority.’ ”). If Judge Widener’s approach were correct, an 
employer could extend Section 703(h) immunity to any cri­
terion simply by showing that it had previously entered into 
discretionary employment decisions in some way.

25 Under Section 706(b) of Title VII (42 U.S.C. 2000e- 
5(b) ), added in 1972, notification of a charge must be served 
on the employer and union within 10 days of its receipt by 
the EEOC. Before 1972, the EEOC was only required to serve 
notice within a reasonable time. See Chromocraft Corp. V. 
EEOC, 465 F.2d 745 (5th Cir. 1972).

26 Some expectations based on the lines of progression may, 
of course, have arisen between the challenge and the con­
clusion of the litigation. But this is an unavoidable risk ; until 
the litigation runs its course, timely notification of the chal­
lenge to the lines of progression is the only possible means of 
preventing employees from acquiring unjustified expectations. 
The Court has held that Congress relied on such notification 
to ensure that litigation delays would not be unfair. See 
Occidental Life Insurance Co. V. EEOC, 432 U.S. 355, 372- 
373 (1977).

Moreover, Congress intended the EEOC to delay initiating 
litigation until it had investigated the charge and attempted 
conciliation. See Occidental Life Insurance Co. V. EEOC, 
supra, 432 U.S. at 359-360, 368. Voluntary settlement and 
conciliation are “the preferred means’’ of resolving employ­
ment discrimination claims (Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44 (1974); see Carson v. American Brands, 
Inc., No. 79-1236 (Feb. 25, 1981), slip op. 8 n.14), and a 
principal objective of Title VII is to “ ‘spur * * * employers 
and unions to self-examine and to self-evaluate their employ­
ment practices * * *.’ ” Albemarle Paper Co. v. Moody, 422 
U.S. 405, 417-418 (1975), quoting United States V. N.L. Indus­
tries, Inc., 479 F.2d 354, 379 (8th Cir. 1973). Had petitioners 
done so, or had they been willing to conciliate with the



28

cidental Life Insurance Co. v. EEOC, 432 U.S. 355, 
371-372 (1977).

In fact, when the lines of progression were estab­
lished they interposed additional qualifications which 
had to be met by employees seeking to use their sen­
iority to obtain a better job. Before the lines were 
instituted, employees with plant seniority could look 
forward to obtaining one of the top jobs; when the 
lines of progression were adopted, employees—black 
and white alike—found that less senior employees 
who had served in bottom jobs would obtain the top 
jobs instead. In this way, the decision to adopt lines 
of progression frustrated existing seniority expecta­
tions. Respondents’ challenge to that decision ac­
tually helped restore previously existing expectations. 
Thus once respondents’ claim is seen as a challenge to 
the adoption, not the operation, of the lines of 
progression policy, there is no basis for suggesting 
that it is inconsistent with the purpose of Section 
703(h).

2. Petitioners assert (e.g., Union Br. 31; Com­
pany Br. 30, 32) that unless Section 703(h) is inter­
preted to permit them to reinstate the lines of pro­
gression, their ability to determine who should be

respondents, no unwarranted expectations would have de­
veloped.

In any event, the danger that employees acquired unwar­
ranted expectations in the continued operation of petitioners’ 
lines of progression is far less than the danger that a seniority 
system that is not bona fide will create such expectations, 
since such a system may operate for years without being 
challenged; yet Congress clearly intended to permit challenges 
to aspects of seniority systems that were not bona fide. More­
over, courts retain the power to shape seniority relief in a 
way that avoids inequity. See Franks V. Bowman Transporta­
tion Co., swpra, 424 U.S. at 770.



29
promoted—and otherwise to alter plant operations in 
response to changing circumstances—will be exces­
sively and unjustifiably restricted. But the courts be­
low did not impose any extraordinary or unprece­
dented limitation on petitioners.

Petitioners’ lines of progression policy specifies 
that, as an additional prerequisite or qualification for 
holding a “top” job, an employee must have held the 
designated “bottom” job. The effect of denying peti­
tioners the benefit of Section 703(h) was only to 
require that they justify this policy in the same way 
they would justify any other employment qualifica­
tion—by showing, under Griggs v. Duke Power Co., 
supra, 401 U.S. at 431, that that qualification is not 
an “artificial, arbitrary, and unnecessary barrier [] 
to employment * * * which operates to exclude 
[blacks and] cannot be shown to be related to job 
performance.''

For example, in order to serve the same purposes 
as the lines of progression policy, petitioners might 
have specified that as a prerequisite to obtaining 
certain jobs an employee must have experience in a 
designated job outside the company, or must have 
completed a training program, or must demonstrate 
certain aptitudes, or must have a vocational school 
diploma. All of these requirements would be subject 
to Griggs. See, e.g., Pettway v. American Cast Iron 
Pipe Co., 494 F.2d 211, 221-222 (5th Cir. 1974) 
(high school diploma); United States v. Hayes Inter­
national Corp., 456 F.2d 112, 118 (5th Cir. 1972) 
(prior experience). Petitioners do not explain why it 
is unreasonable, or in conflict with a purpose of Title 
VII or Section 703(h), to require the same justifica­
tion for the employment qualifications established by 
the lines of progression policy.

It is not a sufficient answer that the lines of pro­
gression policy is an aspect of a seniority system.



eo

We can discern only two reasons Congress might have 
had for requiring a weaker justification for an em­
ployment practice that is an aspect of a seniority 
system, and neither of those reasons is applicable 
here.

First, as we have explained, Congress did not want 
Title VII to “destroy or water down the vested sen­
iority rights of employees simply because * * * [the] 
seniority system * * * perpetuate [d] [past] discrimi­
nation.” International Brotherhood of Teamsters v. 
United States, supra, 431 U.S. at 353. Congress 
may have been concerned about the employee who 
worked for years in a bottom job with the expecta­
tion that by doing so he would improve his chances 
of obtaining a top job. But, as we have said, this 
concern is not material here, for petitioners’ lines of 
progression were challenged when they were adopted, 
before any such expectations could develop.

The second possible reason for requiring a lesser 
justification for an aspect of a seniority system is 
that the seniority principle—That preferential treat­
ment is dispensed on the basis of some measure of 
time served in employment” (California Brewers As­
sociation v. Bryant, supra, 444 U.S. at 606) and that 
“longevity with an employer” is “reward [ed]” (Ala­
bama Power Co. v. Davis, 431 U.S. 581, 589 
(1977))—is of “overriding importance” in collective 
bargaining and in the organization of the workplace. 
Humphrey v. Moore, 375 U.S. 335, 346 (1964); see 
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 
79 (1977); Aaron, Reflections on the Legal Nature 
and Enforceability of Seniority Rights, 75 Harv. L. 
Rev. 1532, 1534 (1962). In considering Title VII 
and Section 703(h), Congress recognized that unions 
almost universally use seniority to allocate scarce 
benefits among their members. See, e.g., H.R. Rep.



31

No. 914, supra, at 71. The seniority principle is thus 
often vital to a union’s efforts to aggregate and rec­
oncile the conflicting interests of those it represents 
(see, e.g., Cooper & Sobol, Seniority and Testing 
Under Fair Employment Laws: A General Approach 
to Objective Criteria of Hiring and Promotion, 82 
Harv. L. Rev. 1598, 1604 (1969))—a central aspect 
of a union’s role under the federal labor laws. See 
Ford Motor Co. v. Huffman, 345 U.S. 330, 338-339 
(1953).

Accordingly, Congress may well have believed 
that to require a union to show that seniority serves 
a business necessity would undermine one of the 
central institutions of collective bargaining. Specifi­
cally, the business necessity requirement is not 
well suited to justifying the use of the seniority prin­
ciple itself—that is, length of service—as a criterion. 
See generally Jersey Central Power & Light Co. v. 
Local 327, IBEW, 508 F.2d 687, 705-710 (3d Cir. 
1975). The principal justification for using seniority 
as a criterion lies in tradition, and in employees’ gen­
eral willingness to accept it as a fair basis for allo­
cating scarce benefits. See, e.g., Cooper & Sobol, 
supra, 82 Harv. L. Rev. at 1604-1605.

This case, however, does not concern a union’s role 
in reconciling employees’ conflicting interests by us­
ing a measure that is generally accepted as legiti­
mate; nor does it involve dispensing preferential 
treatment “on the basis of * * * time served in em­
ployment,” California Brewers Association v. Bryant, 
supra, 444 U.S. at 606. The lines of progression are 
a constraint that was imposed on the use of seniority 
in order to serve management objectives. Petitioners 
virtually concede as much, arguing that the “narrow- 
ling]” of seniority by such means as the lines of 
progression policy is needed to achieve management’s



32
goal of promoting the more qualified employees (see 
Union Br. 30; Company Br. 28-29); it is in any 
event obvious that any justification for the lines of 
progression must invoke management’s needs for 
qualified employees, not the union’s interests.

We know of nothing suggesting that Section 703(h) 
was intended to allow a policy that limits the use 
of seniority in order to serve the same management 
objectives as other employment qualifications to be 
justified more easily than other qualifications.27 In­
deed, it is fair to say that in enacting Section 703(h) 
Congress was almost exclusively concerned with the 
importance of seniority to unions and employees, and 
scarcely mentioned employers’ interests in incorporat­
ing rules into seniority systems. See, e.g., 110 Cong. 
Rec. 6549, 6553-6554, 11486, 11768, 11848 (1964); 
H.R. Rep. No. 914, supra, at 71.

We recognize, of course, that “ [sjeniority systems, 
reflecting as they do, not only the give and take of

27 The legislative history includes such statements as “noth­
ing in the bill would affect any seniority plan which was not 
a cloak for racial or religious discrimination” (110 Cong. 
Rec. 5423 (1964) (remarks of Sen. Humphrey), quoted at 
Union Br. 16), but it is clear that by “discrimination” the 
proponents of the Act meant the sort of discrimination out­
lawed by Griggs. For example, in the same speech in which 
he made the statement just quoted, Senator Humphrey said 
that the bill “does not limit the employer’s freedom to hire, 
fire, promote, or demote for any reason * * *—so long as his 
action is not based on race” (110 Cong. Rec. 5423 (1964)). 
Indeed, the proponents of the Act often linked management 
practices to seniority systems, explaining that both would be 
unlawful if discriminatory and lawful if nondiscriminatory. 
See, e.g., 110 Cong. Rec. 5094 (1964) (“An employer will re­
main wholly free to hire on the basis of his needs and of the 
job candidate’s qualifications. What is prohibited is the re­
fusal to hire someone because of his race or religion. Simi­
larly, the law will have no effect on union seniority rights.”) .



33

free collective bargaining, but also the specific char­
acteristics of a particular business or industry, in­
evitably come in all sizes and shapes,” and that 
“ [significant freedom must be afforded employers 
and unions to create differing seniority systems” 
(California Brewers Association v. Bryant, 444 U.S. 
598, 608 (1980)). When employees have developed 
expectations based on “those components of [a] * * * 
seniority scheme that, viewed in isolation, [do not] 
embody or effectuate the principle that length of em­
ployment will be rewarded,” there is good reason to 
“exempt [those components] from the normal opera­
tion of Title VII * * Id. at 607. Thus to the 
extent that petitioners’ lines of progression are bona 
fide, and are an aspect of their seniority system, 
the “routine application” (International Brotherhood 
of Teamsters v. United States, swpra, 431 U.S. at 
352) of the lines of progression will be protected by 
Section 703(h), because those lines of progression 
may have given rise to employees’ expectations. More­
over, even when the adoption of a seniority system 
is challenged, there may be aspects of the system— 
notably the very use of the seniority principle—to 
which it would be inappropriate to apply the “busi­
ness necessity” requirement as it has been developed 
in other contexts.

Here, however, respondents have challenged the 
adoption of an aspect of a seniority system that re­
sembles any other job qualification and that gave rise 
to no legitimate expectations. If the six challenged 
lines of progression are “related to job performance” 
('Griggs v. Duke Power Co., supra, 401 U.S. at 431), 
petitioners should be able to show that they are—just 
as they were able to show that the other three lines 
served a business necessity (App. 31-32). See Furnco



34
Construction Corp. v. Waters, 438 U.S. 567, 577
(1978). But there is no reason to allow employees 
and unions to adopt “artificial, arbitrary, and un­
necessary barriers to employment” (Griggs v. Duke 
Power Co., supra, 401 U.S. at 431) merely because 
those barriers “have some nexus to an arrangement 
that concededly operates on the basis of seniority” 
0California Brewers Association v. Bryant, supra, 
444 U.S. at 608).

3. Petitioners (e.g., Union Br. 28-31; Company 
Br. 27-31) and amicus (Am. Br. 15, 20 n.18)28 also 
argue that unless the lines of progression are im­
munized from Title VII, employers and unions will 
be unable to adopt any change in their seniority prac­
tices, even a change that would favor minorities, for 
fear that the entire seniority system will then be 
challenged as not being sufficiently favorable to mi­
norities (see, e.g., Union Br. 18). Neither we nor 
the court of appeals suggests that the addition of a 
single feature—such as the lines of progression—to 
a seniority system deprives every other aspect of 
that system of the protection of Section 703(h). The 
court of appeals carefully distinguished between the 
lines of progression policy, which it held was not 
covered by Section 703(h), and the rule providing 
that an employee forfeited his seniority when he 
transferred between branches—a rule which the court 
specifically held was protected by Section 703(h) and 
therefore was lawful unless not bona fide. App. 142, 
145. A challenge to the adoption of an aspect of a 
seniority system draws into question only that aspect, 
not other features that were adopted long before. See 
California. Brewers Association v. Bryant, supra, 444

28 “Am. Br.” refers to the brief of Amicus Curiae Equal 
Employment Advisory Council.



35
TJ.S. at 610-611.28 Similarly, if an aspect of a 
seniority system is changed, the question raised by a 
timely challenge to the change is whether that change 
violates Title VII; the change would not make the 
entire system liable to reexamination.30

II. PETITIONERS’ LINES OF PROGRESSION ARE 
NOT A BONA FIDE ASPECT OF A SENIORITY 
SYSTEM

Section 703(h) “does not immunize all seniority 
systems. It refers only to ‘bona fide’ systems * * 
International Brotherhood of Teamsters v. United 
States, supra, 431 U.S. at 353. Thus if petitioners’ 
six lines of progression are not a bona fide aspect of 
their seniority system, the district court was correct 
in refusing to modify its original injunction against 
the lines.81

29 See Brief for the United States and the EEOC as amici 
curiae in Pullman-Standard V. Swint and United Steelivorkers 
of America V. Swint, Nos. 80-1190 and 80-1193, at 9-10. A 
copy of this brief has been sent to counsel for the other 
parties.

30 Moreover, Section 703(h) does not even become relevant 
unless a properly challenged aspect of a seniority system has 
a disproportionately harmful effect on minorities. If a new 
aspect of a seniority system, or a change in that system, has 
the effect of favoring minorities in order to overcome prior 
discrimination, that new aspect does not violate the substan­
tive prohibitions of Title VII even if it is not justified by a 
business necessity. There is thus no basis for petitioners’ sug­
gestion that the Section 703 (h) exemption is needed to protect 
the efforts of employees to modify their employment practices 
so as to overcome prior discrimination; such efforts are pro­
tected because they are not proscribed by any provision of 
Title VII. See United Steelworkers of America v. Weber, 
443 U.S. 193 (1979).

31 We also agree with the court of appeals panel that the 
lines of progression policy was not an aspect of a seniority 
system, and is not within Section 703(h) for that reason as



36
The district court held that the lines of progres­

sion were not bona fide. Although they decided the 
case on different grounds, the court of appeals panel

well. The lines of progression policy did not establish units 
within which seniority was calculated; the seniority units 
were the two branches, and the amount of time an employee 
had spent in a line of progression was irrelevant to his 
seniority. In this respect the lines of progression policy was 
unlike the distinction between city and over-the-road drivers 
involved in International Brotherhood of Teamsters V. United 
States, supra; unlike the distinction between temporary and 
permanent employees at issue in California Brewers Associa­
tion V. Bryant, supra, 444 U.S. at 609; and apparently unlike 
the usual line of progression seniority scheme (see, e.g., United 
States V. Georgia Power Co., 634 F.2d 929, 931 (5th Cir. 1981), 
petition for cert, pending sub mom. Local 8It, IBEW  V. United 
States, No. 80-2117; Cooper & Sobol, supra, 82 Harv. L. Rev. 
at 1602).

Similarly, the lines of progression policy does not “de­
lineate how and when the seniority time-clock begins ticking, 
* * * specify how and when a particular person’s seniority 
may be forfeited, * * * [or] define which passages of time 
will ‘count’ towards the accrual of seniority and which will 
not.” California Brewers Association V. Bryant, supra, 444 
U.S. at 607 (footnotes omitted). Nor does it “particularize the 
types of employment conditions,” such as “vacation time * * * 
job security in the event of layoffs, * * * promotions or job 
assignments” that “will be governed or influenced by senior­
ity.” Ibid. & n.20.

Moreover, the lines of progression policy, again unlike the 
distinction at issue in California Brewers Association, does not 
“focusf ] on length of employment” (444 U.S. at 610). Appar­
ently one day’s service in a bottom job was as much benefit 
to an employee as 40 years’ service. The only thing dis­
tinguishing the lines of progression from, for example, an 
“educational prerequisite”—which clearly cannot be an aspect 
of a seniority system (see id. at 609)—is that the qualifica­
tions required by the lines of progression policy could be ob­
tained only by working in petitioners’ plant. But this alone 
cannot justify treating a rule as an aspect of a seniority 
system; many other criteria, clearly not aspects of a seniority



37
and the en banc court of appeals did not question 
this holding. The district judge had presided over a 
lengthy trial at which the genesis and impact of the 
lines of progression, and the possible business justifi­
cations for them, were thoroughly explored. Because 
of the district judge’s familiarity with the case, his 
conclusion that the lines of progression were not bona 
fide is entitled to some deference. See, e.g., Dayton 
Board of Education v. Brinkman, 443 U.S. 526, 535 
n.8 (1979). Moreover, the record strongly supports 
the conclusion reached by the district judge. In these 
circumstances, the Court may wish to affirm the judg­
ment of the court of appeals on the alternative basis 
that the six lines of progression are not bona fide. 
See, e.g., Dayton Board of Education v. Brinkman, 
433 U.S. 406, 419 (1977); Hankersonv. North Caro­
lina, 432 U.S. 233, 240 & n.6 (1977); Dandridge v. 
Williams, 397 U.S. 471, 475-476 & n.6 (1970).

An aspect of a seniority system “cannot be bona 
fide if an intent to discriminate entered into its 
very adoption.” International Brotherhood of Team­
sters v. United States, supra, 431 U.S. at 346 n.28. 
See, e.g., Trans World Airlines, Inc. v. Hardison, 432 
U.S. 63, 82 (1977); United States v. Georgia Power 
Co., 684 F.2d 929 (5th Cir, 1981), petition for cert, 
pending sub nom. Local 8U, 1BEW v. United States, 
No. 80-2117; Hameed v. International Association of 
Bridge Workers, Local 896, 637 F,2d 506, 516 & n .ll 
(8th Cir. 1980).32 Petitioners concede that until 1963

system—such as certain aptitude tests (see ibid.) or a super­
visor’s evaluation (see id. at 609-610)—might be capable of 
being satisfied only by an employee who had already worked 
in the employer’s plant.

as jn our Brief for the United States and the EEOC as 
Amici Curiae in Pullman-Standard v. Swint and United Steel­
workers of America V. Swint, Nos. 80-1190 and 80-1193, we 
discussed the criteria for determining whether a seniority



38
the plants were explicitly segregated along racial 
lines in every significant respect. Promotions were 
determined by seniority, but petitioners prevented 
senior blacks from obtaining the better-paying fabri­
cation jobs by adopting a rule that strongly discour­
aged transfers from the prefabrication departments 
—which had been deliberately kept predominantly 
black—to the fabrication departments, in which all 
but the least desirable jobs were reserved for whites.

In 1963, petitioners, under pressure from govern­
ment agencies, dropped this seniority rule and main­
tained only the rule that an employee forfeited his 
seniority when he transferred between branches. On 
its face, this new system seemed to promise that some 
blacks could use their seniority to be promoted into 
jobs previously reserved for whites. But petitioners 
modified the seniority system with a system of “quali­
fications” that relied heavily on the standardless, 
discretionary evaluations of white supervisors—the 
sort of subjective decisions that have proved to be a 
recurrent source of racial prejudice. See, e.g., Alex­
ander v. Louisiana, 405 U.S. 625, 631-632 (1972); 
Rowe v. General Motors Corp., 457 F.2d 348, 358- 
359 (5th Cir. 1972). Not surprisingly, this new 
promotions policy replicated the employment patterns 
achieved by the explicitly racial regime. The district 
court and the court of appeals found that this promo­
tions policy, too, was racially discriminatory.

In 1968, petitioners again came under pressure 
from government agencies,38 and again they modified

system is bona fide under Section 703(h) and the relationship 
between those criteria and the proof of discriminatory pur­
pose under the Equal Protection Clause.

33 EEOC representatives were involved in inducing the 
company to change its employment practices in 1968. See J.A. 
570-572. The EEOC did not approve the specific measures



39
their promotion policy. This time the restriction they 
placed on the pure use of plant seniority was the 
lines of progression. Because of the lines of progres­
sion, four of the most desirable jobs in the plant— 
previously all-white jobs—were reserved to em­
ployees who had served in other traditionally white 
jobs. This policy also had a predictable effect; after 
five years and numerous vacancies, the top jobs re­
mained almost exclusively white. See page 7, supra. 
At the same time, between four and five times as 
many blacks as whites were excluded from the lines 
of progression entirely, even though the company 
employed four times as many whites as blacks (see 
pages 6-7, supra-, App. 75). In this way, the lines 
of progression “fostered [a] racially stratified job 
environment[] to the disadvantage of minority [em­
ployees]” (McDonnell Douglas Corp. v. Green, 411 
U.S. 792, 800 (1973)). “ [W]hen the adverse con­
sequences of i[an action] upon an identifiable group 
are [clearly] * * * inevitable * * * a strong infer­
ence that the adverse effects were desired can reason­
ably be drawn.” Personnel Administrator of Massa­
chusetts v. Feeney, 442 U.S. 256, 279 n.25 (1979). 
See Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 266 
(1977); Washington v. Davis, 426 U.S. 229, 241-242 
(1976). Here, the persistent racial pattern, and the 
obvious and predictable segregative consequences of 
the lines of progression, create a strong inference 
that petitioners adopted the lines in order to main­
tain that pattern.

adopted by the company (see 42 U.S.C. 2000e-12(b) ; 31 Fed. 
Reg. 10270 (1966)), and there is no indication that the EEOC 
was aware of the effects of the lines of progression (see J.A. 
572), so the EEOC representative’s presence at discussions 
is not evidence that the lines of progression are bona fide.



40
Notably, both the company, which proposed the 

lines of progression, and the union, which ratified 
them, had an extensive history of discriminatory 
practices. This suggests the presence of impermissi­
ble racial purposes. See Village of Arlington Heights 
v. Metropolitan Housing Development Corp., supra, 
429 U.S. at 267; Sears v. Bennett, 645 F.2d 1365, 
1370-1371, 1373-1374 (10th Cir. 1981), petition for 
cert, pending sub nom. United Transportation Union 
v. Sears, No. 81-221. While the union had merged its 
segregated locals—under direct pressure from govern­
ment agencies (App. 75; J.A. 202)^white members 
dominated the merged union. Thus there is no suffi­
cient reason to believe that the collective bargaining 
process, which would ordinarily protect employees’ 
interests, adequately protected the interests of black 
employees in this instance. The more reasonable con­
clusion is that the union and the company agreed on 
a policy that would continue the pattern of guaran­
teeing that senior white employees would receive the 
best, traditionally white jobs. At the very least, in 
view of the care with which both the company and 
the union had always preserved the best jobs for 
white employees, it is difficult to quarrel with the 
district court’s apparent conclusion that petitioners 
adopted the lines of progression “at least in part ‘be­
cause of,’ not merely ‘in spite of’ ” the fact that they 
were likely to continue to give the best jobs to whites. 
See Personnel Administrator of Massachusetts v. 
Feeney, supra, 442 U.S. at 279.

If the lines of progression policy served some sub­
stantial legitimate interest, it would be more diffi­
cult to conclude that race entered into the decision 
to adopt them. But petitioners established no busi­
ness justification for the lines. At the trial, petition­
ers had every incentive to show that the lines of



41

progression served a business interest.34 Although 
petitioners established that three lines of progres­
sion served a business necessity, they offered essen­
tially no business justification for the six lines at 
issue here (App. 9). The district court accordingly 
found, in effect, that the six lines do not “serve the 
employer’s legitimate interest in ‘efficient and trust­
worthy workmanship.’ ” Albemarle Paper Co. v. 
Moody, supra, 422 U.S. at 425, quoting McDonnell 
Douglas Corp. v. Green, supra, 411 U.S. at 801. See 
Dothard v. Rawlinson, supra, 433 U.S. at 329. Thus 
it is difficult to escape the conclusion reached by the 
district court, that the lines of progression were in 
fact intended to serve the racially segregative objec­
tives that the company and union had repeatedly 
pursued through a variety of other means.8,5

84 The issue at trial was not whether the lines of progres­
sion were bona fide but whether they were “related to job 
performance” within the meaning of Griggs V. Duke Power 
Co., supra, 401 U.S. at 431. While the Griggs standard is dif­
ferent from the test that would be used to determine if the 
lines of progression were bona fide (see Dothard V. Rawlinson, 
supra, 433 U.S. at 328; International Brotherhood of Team­
sters V. United States, supra, 431 U.S. at 335-336 n.15), every 
plausible justification for the lines of progression would also 
have helped petitioners meet the Griggs test.

85 The explanation which petitioners did offer for the six 
lines of progression is revealing. A company manager testi­
fied that the lines were not the result of any formal studies 
or any documentary evidence but simply of informal man­
agement views developed “over the years” (J.A. 224-225). 
In short, the lines of progression reflected the same kind of 
standardless supervisory judgments that were used—and 
were held to be discriminatory—before the lines of progres­
sion were adopted. See also pages 26-27, note 24 supra. More­
over, the manager’s testimony reinforces the district court’s



42
For these reasons, this Court can affirm the judg­

ment of the court of appeals on the alternative 
ground that the district court correctly held that the 
lines of progression were not bona fide and therefore 
not within Section 703(h).

CONCLUSION
The judgment of the court of appeals should be 

affirmed.

Respectfully submitted.

Rex E. Lee
Solicitor General

Wm . Bradford Reynolds 
Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

David A. Strauss
Assistant to the Solicitor General

Constance L. Dupre 
Acting General Counsel

P h ilip  B. Sklover
Acting Associate General Counsel

Vella M. F in k
Assistant General Counsel

W illiam H. N g 
Attorney
Equal Employment Opportunity Commission 

N ovember 1981

implicit conclusion that the lines of progression were chosen 
because they were another means of maintaining the tradi­
tional employment patterns at petitioners’ plants.

&  U .  S .  GOVERNMENT PRINTING OFFICE; 1 9 8 1 3 5 7 4 7 6  6 6 7