In a class action against respondent employer and certain labor
unions (of which respondent union is the successor) petitioners
alleged various racially discriminatory employment practices in
violation of Title VII of the Civil Rights Act of 1964 (Act),
especially with respect to employment of over-the-road (OTR) truck
drivers. After certifying the action as a class action and,
inter alia, designating one of the classes represented by
petitioner Lee as consisting of black nonemployee applicants who
applied for and were denied OTR positions prior to January 1, 1972,
the District Court permanently enjoined the respondents from
perpetuating the discriminatory practices found to exist, and, in
regard to the black appliants for OTR positions, ordered the
employer to notify the members of the designated class of their
right to priority consideration for such jobs. But the court
declined to grant the unnamed members of the class any specific
relief sought, which included an award of backpay and seniority
status retroactive to the date of individual application for an OTR
position. While vacating the District Court's judgment insofar as
it failed to award backpay to unnamed members of the class and
reversing on other grounds, the Court of Appeals affirmed the
District Court's denial of any form of seniority relief, holding
that such relief was barred, as a matter of law, by § 703(h) of
Title VII, which provides that it shall not be an unlawful
employment practice for an employer,
inter alia, to apply
different conditions of employment pursuant to a
bona fide
seniority system.
Held:
1. That petitioner Lee, the named plaintiff representing the
class in question, no longer has a personal stake in the outcome of
the action because he had been hired by respondent employer and
later was properly discharged for cause does not moot the case. An
adverse relationship sufficient to meet the requirement that a
"live controversy" remain before this Court not only obtained as to
unnamed members of the class with respect to the
Page 424 U. S. 748
underlying cause of action, but also continues with respect to
their assertion that the relief they have received in entitlement
to consideration for hiring and backpay is inadequate without
further award of entitlement to seniority benefits. Pp.
424 U. S.
752-757.
2. Section 703(h) does not bar seniority relief to unnamed
members of the class in question, who are not seeking modification
or elimination of the existing seniority system but only an award
of the seniority status they would have individually enjoyed under
the present system but for the illegal discriminatory refusal to
hire. The thrust of § 703(h) is directed toward defining what is
and what is not an illegal discriminatory employment practice in
instances in which the post-Act operation of a seniority system is
challenged as perpetuating the effects of discrimination occurring
prior to the Act's effective date, and there is no indication in
the legislative materials concerning it that § 703(h) was intended
to modify or restrict relief otherwise appropriate under the Act
once an illegal discriminatory practice occurring after the Act's
effective date is proved, such as a discriminatory refusal to hire
as in this case. Pp.
424 U. S.
757-762.
3. An award of seniority retroactive to the date of the
individual job application is appropriate under § 706(g) of Title
VII, which, to effectuate Title VII's objective of making persons
whole for injuries suffered on account of unlawful employment
discrimination, vests broad equitable discretion in the federal
courts to
"order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay . . . or any other relief as
the court deems appropriate."
Merely to require respondent employer to hire the class victim
of discrimination falls far short of a "make whole" remedy, and a
concomitant award of the seniority credit he presumptively would
have earned but for the wrongful treatment would also seem
necessary absent justification for denying that relief. Without a
seniority award dating from the time when he was discriminatorily
refused employment, an individual who applies for and obtains
employment as an OTR driver pursuant to the District Court's order
will never obtain his rightful place in the hierarchy of seniority
according to which various employment benefits are distributed. Pp.
424 U. S.
762-770.
4. Denial of seniority relief for the unnamed class members
cannot be justified as within the District Court's discretion
on
Page 424 U. S. 749
the grounds given by that court that such individuals had not
filed administrative charges with the Equal Employment Opportunity
Commission under Title VII, and that there was no evidence of a
"vacancy, qualification, and performance" for every individual
member of the class. Nor can the denial of such relief be justified
as within the District Court's discretion on the ground that all
award of retroactive seniority to the class of discriminatees will
conflict with the economic interests of other employees of
respondent employer. The District Court made no mention of such
considerations in denying relief, and to deny relief on such a
ground would, if applied generally, frustrate the "make whole"
objective of Title VII. Pp.
424 U. S.
770-779.
495 F.2d 398, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined, and in Part I
of which POWELL, J., joined. BURGER, C.J., filed an opinion
concurring in part and dissenting in part,
post, p.
424 U. S. 780.
POWELL, J., filed an opinion concurring in part and dissenting in
part, in which REHNQUIST, J., joined,
post, p.
424 U. S. 781.
STEVENS, J., took no part in the consideration or decision of the
case.
Page 424 U. S. 750
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question whether identifiable applicants
who were denied employment because of race after the effective date
and in violation of Title VII of the Civil Rights Act of 1964, 78
Stat. 253, as amended, 42 U.S.C. § 2000e
et seq. (1970 ed.
and Supp. IV), may be awarded seniority status retroactive to the
dates of their employment applications. [
Footnote 1]
Petitioner Franks brought this class action in the United States
District Court for the Northern District of Georgia against his
former employer, respondent Bowman Transportation Co., and his
unions, the International Union of District 50, Allied and
Technical Workers of the United States and Canada, and its local,
No. 13600, [
Footnote 2]
alleging various racially discriminatory employment practices in
violation of Title VII. Petitioner Lee intervened on behalf of
himself and others similarly situated alleging racially
discriminatory hiring and discharge
Page 424 U. S. 751
policies limited to Bowman's employment of over-the-road (OTR)
truck drivers. Following trial, the District Court found that
Bowman had engaged in a pattern of racial discrimination in various
company policies, including the hiring, transfer, and discharge of
employees, and found further that the discriminatory practices were
perpetrated in Bowman's collective bargaining agreement with the
unions. The District Court certified the action as a proper class
action under Fed.Rule Civ.Proc. 23(b)(2) and, of import to the
issues before this Court, found that petitioner Lee represented all
black applicants who sought to be hired or to transfer to OTR
driving positions prior to January 1, 1972. In its final order and
decree, the District Court subdivided the class represented by
petitioner Lee into a class of black nonemployee applicants for OTR
positions prior to January 1, 1972 (class 3), and a class of black
employees who applied for transfer to OTR positions prior to the
same date (class 4).
In its final judgment entered July 14, 1972, the District Court
permanently enjoined the respondents from perpetuating the
discriminatory practices found to exist, and, in regard to the
black applicants for OTR positions, ordered Bowman to notify the
members of both subclasses within 30 days of their right to
priority consideration for such jobs. The District Court declined,
however, to grant to the unnamed members of classes 3 and 4 any
other specific relief sought, which included an award of backpay
and seniority status retroactive to the date of individual
application for an OTR position.
On petitioners' appeal to the Court of Appeals for the Fifth
Circuit, raising for the most part claimed inadequacy of the relief
ordered respecting unnamed members of the various subclasses
involved, the Court of Appeals affirmed in part, reversed in part,
and vacated in part. 495 F.2d 398 (1974). The Court of Appeals
Page 424 U. S. 752
held that the District Court had exercised its discretion under
an erroneous view of law insofar as it failed to award backpay to
the unnamed class members of both classes 3 and 4, and vacated the
judgment in that respect. The judgment was reversed insofar as it
failed to award any seniority remedy to the members of class 4 who
after the judgment of the District Court sought and obtained
priority consideration for transfer to OTR positions. [
Footnote 3] As respects unnamed members
of class 3 -- nonemployee black applicants who applied for and were
denied OTR positions prior to January 1, 1972 -- the Court of
Appeals affirmed the District Court's denial of any form of
seniority relief. Only this last aspect of the Court of Appeals'
judgment is before us for review under our grant of the petition
for certiorari. 420 U.S. 989 (1975).
I
Respondent Bowman raises a threshold issue of mootness. The
District Court found that Bowman had hired petitioner Lee, the
sole-named representative of class 3, and had subsequently properly
discharged him for cause, [
Footnote
4] and the Court of Appeals affirmed. Bowman argues that, since
Lee will not in any event be eligible
Page 424 U. S. 753
for any hiring relief in favor of OTR nonemployee
discriminatees, he has no personal stake in the outcome, and
therefore the question whether nonemployee discriminatees are
entitled to an award of seniority when hired in compliance with the
District Court order is moot. Bowman relies on
Sosna v.
Iowa, 419 U. S. 393
(1975), and
Board of School Comm'rs v. Jacobs,
420 U. S. 128
(1975). That reliance is misplaced.
Sosna involved a challenge to a one-year residency
requirement in a state divorce statute. The District Court properly
certified the action as a class action. However, before the case
reached this Court, the named representative satisfied the state
residency requirement (and had, in fact, obtained a divorce in
another State). 419 U.S. at
419 U. S. 398
and n. 7. Although the named representative no longer had a
personal stake in the outcome, we held that
"[w]hen the District Court certified the propriety of the class
action, the class of unnamed persons described in the certification
acquired a legal status separate from the interest asserted by [the
named representative],"
id. at
419 U. S. 399,
and, accordingly the "cases or controversies" requirement of Art.
III of the Constitution was satisfied.
Id. at
419 U. S. 402.
[
Footnote 5]
It is true as Bowman emphasizes that
Sosna was an
instance of the "capable of repetition, yet evading review" aspect
of the law of mootness.
Id. at
419 U. S.
399-401. And that aspect of
Sosna was remarked
in
Board of School Comm'rs v. Jacobs, supra, a case which
was held to
Page 424 U. S. 754
be moot. [
Footnote 6] But
nothing in our
Sosna or
Board of School Comm'rs
opinions holds or even intimates that the fact that the named
plaintiff no longer has a personal stake in the outcome of a
certified class action renders the class action moot unless there
remains an issue "capable of repetition, yet evading review."
[
Footnote 7] Insofar as the
concept of mootness defines constitutionally minimal conditions for
the invocation of federal judicial power, its meaning and scope, as
with all concepts of justiciability, must be derived from the
fundamental policies informing the "cases or controversies"
limitation imposed by Art. III.
"As is so often the situation in constitutional adjudication,
those two words have an iceberg quality, containing beneath their
surface simplicity submerged complexities which go to the very
heart of our constitutional form of government. Embodied
Page 424 U. S. 755
in the words 'cases' and 'controversies' are two complementary
but somewhat different limitations. In part, those words limit the
business of federal courts to questions presented in an adversary
context and in a form historically viewed as capable of resolution
through the judicial process. And in part those words define the
role assigned to the judiciary in a tripartite allocation of power
to assure that the federal courts will not intrude into areas
committed to the other branches of government."
Flast v. Cohen, 392 U. S. 83,
392 U. S. 94-95
(1968). There can be no question that this certified class action
"clearly presented" the District Court and the Court of Appeals
"with a case or controversy in every sense contemplated by Art. III
of the Constitution."
Sosna, supra at
419 U. S. 398.
Those courts were presented with the seniority question "in an
adversary context and in a form historically viewed as capable of
resolution through the judicial process."
Flast, supra at
392 U. S. 95.
The only constitutional mootness question is therefore whether,
with regard to the seniority issues presented, "a live controversy
[remains] at the time this Court reviews the case."
Sosna,
supra at
419 U. S.
402.
The unnamed members of the class are entitled to the relief
already afforded Lee, hiring and backpay, and thus, to that extent,
have
"such a personal stake in the outcome of the controversy
[whether they are also entitled to seniority relief] as to assure
that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult . . . questions."
Baker v. Carr, 369 U. S. 186,
369 U. S. 204
(1962). Given a properly certified class action,
Sosna
contemplates that mootness turns on whether, in the specific
circumstances of the given case at the time it is before this
Court, an adversary relationship sufficient to
Page 424 U. S. 756
fulfill this function exists. [
Footnote 8] In this case, that adversary relationship
obviously obtained as to unnamed class members with respect to the
underlying cause of action and also continues to obtain as respects
their assertion that the relief they have received in entitlement
to consideration for hiring and backpay is inadequate without
further award of entitlement to seniority benefits. This becomes
crystal clear upon examination of the circumstances and the record
of this case.
The unnamed members of the class involved are identifiable
individuals, individually named in the record. Some have already
availed themselves of the hiring relief ordered by the District
Court and are presently employed as OTR drivers by Bowman. Tr. of
Oral Arg. 23. The conditions of that employment are now, and, so
far as can be foreseen, will continue to be, partially a function
of their status in the seniority system. The rights of other
members of the class to employment under the District Court's
orders are currently the subject of further litigation in that
court.
Id. at 15. No questions are raised concerning the
continuing desire of any of these class members for the seniority
relief presently in issue. No questions are raised concerning the
tenacity and competence of their counsel in pursuing that mode of
legal relief before this Court. It follows that there is no
meaningful sense in which a "live controversy" reflecting the
issues before the Court could
Page 424 U. S. 757
be found to be absent. Accordingly, Bowman's mootness argument
has no merit.
II
In affirming the District Court's denial of seniority relief to
the class 3 group of discriminatees, the Court of Appeals held that
the relief was barred by § 703(h) of Title VII, 42 U.S.C. §
2000e-2(h). We disagree. Section 703(h) provides in pertinent
part:
"Notwithstanding any other provision of this title, it shall not
be an unlawful employment practice for an employer to apply
different standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a
bona
fide seniority or merit system . . . provided that such
differences are not the result of an intention to discriminate
because of race, color, religion, sex, or national origin. . .
."
The Court of Appeals reasoned that a discriminatory refusal to
hire
"does not affect the
bona fides of the seniority
system. Thus, the differences in the benefits and conditions of
employment which a seniority system accords to older and newer
employees is protected [by § 703(h)] as 'not an unlawful employment
practice.'"
495 F.2d at 417. Significantly, neither Bowman nor the unions
undertake to defend the Court of Appeals' judgment on that ground.
It is clearly erroneous.
The black applicants for OTR positions composing class [
Footnote 9] are limited to those whose
applications were put
Page 424 U. S. 758
in evidence at the trial. [
Footnote 10] The underlying legal wrong affecting them is
not the alleged operation of a racially discriminatory seniority
system, but of a racially discriminatory hiring system. Petitioners
do not ask for modification or elimination of the existing
seniority system, but only for an award of the seniority status
they would have individually enjoyed under the present system but
for the illegal discriminatory refusal to hire. It is this context
that must shape our determination as to the meaning and effect of §
703(h).
On its face, § 703(h) appears to be only a definitional
provision; as with the other provisions of § 703, subsection (h)
delineates which employment practices are illegal, and thereby
prohibited, and which are not. [
Footnote 11] Section 703(h) certainly does not expressly
purport to qualify or proscribe relief otherwise appropriate under
the remedial provisions of Title VII, § 706(g), 42 U.S.C. §
2000e-5(g), in circumstances where an illegal discriminatory act or
practice is found. Further, the legislative history of § 703(h)
plainly negates its reading as limiting
Page 424 U. S. 759
or qualifying the relief authorized under § 706(g). The initial
bill reported by the House Judiciary Committee as H.R. 7152
[
Footnote 12] and passed by
the full House on February 10, 1964, [
Footnote 13] did not contain § 703(h). Neither the House
bill nor the majority Judiciary Committee Report [
Footnote 14] even mentioned the problem of
seniority. That subject thereafter surfaced during the debate of
the bill in the Senate. This debate prompted Senators Clark and
Case to respond to criticism that Title VII would destroy existing
seniority systems by placing an interpretive memorandum in the
Congressional Record. The memorandum stated: "Title VII would have
no effect on established seniority rights. Its effect is
prospective, and not retrospective." 110 Cong.Rec. 7213 (1964).
[
Footnote 15] Senator Clark
also placed in the Congressional Record a Justice Department
statement concerning Title VII which stated:
"[I]t has been asserted that Title VII would undermine vested
rights of seniority. This is not
Page 424 U. S. 760
correct. Title VII would have no effect on seniority rights
existing at the time it takes effect."
Id. at 7207. [
Footnote 16] Several weeks thereafter, following several
in
Page 424 U. S. 761
formal conferences among the Senate leadership, the House
leadership, the Attorney General and others,
see Vaas,
Title VII: Legislative History, 7 B.C..Ind. & Com.L.Rev. 431,
445 (1966), a compromise substitute bill prepared by Senators
Mansfield and Dirksen, Senate majority and minority leaders
respectively, containing § 703(h) was introduced on the Senate
floor. [
Footnote 17]
Although the Mansfield-Dirksen substitute bill, and hence § 703(h),
was not the subject of a committee report,
see generally
Vaas,
supra, Senator Humphrey, one of the informal
conferees, later stated during debate on the substitute that §
703(h) was not designed to alter the meaning of Title VII
generally, but rather "merely clarifies its present intent and
effect." 110 Cong.Rec. 12723 (1964). Accordingly, whatever the
exact meaning and scope of § 703(h) in light of its unusual
legislative history and the absence of the usual legislative
materials,
see Vaas,
supra at 457-458, it is
apparent that the thrust of the section is directed toward defining
what is and what is not an illegal discriminatory practice in
instances in which the post-Act operation of a seniority system is
challenged as perpetuating the effects of discrimination occurring
prior to the effective date of the Act. There is no indication in
the legislative materials that § 703(h) was intended to modify or
restrict
Page 424 U. S. 762
relief otherwise appropriate once an illegal discriminatory
practice occurring after the effective date of the Act is proved --
as in the instant case, a discriminatory refusal to hire. This
accords with the apparently unanimous view of commentators,
see Cooper & Sobol, Seniority and Testing Under Fair
Employment Laws: A General Approach to Objective Criteria of Hiring
and Promotion, 82 Harv.L.Rev. 1598, 1632 (1969); Stacy, Title VII
Seniority Remedies in a Time of Economic Downturn, 28 Vand.L.Rev.
487, 506 (1975). [
Footnote
18] We therefore hold that the Court of Appeals erred in
concluding that, as a matter of law, § 703(h) barred the award of
seniority relief to the unnamed class 3 members.
III
There remains the question whether an award of seniority relief
is appropriate under the remedial provisions of Title VII,
specifically, § 706(g). [
Footnote 19]
Page 424 U. S. 763
We begin by repeating the observation of earlier decisions that,
in enacting Title VII of the Civil Rights Act of 1964, Congress
intended to prohibit all practices in whatever form which create
inequality in employment opportunity due to discrimination on the
basis of race, religion, sex, or national origin,
Alexander v.
Gardner-Denver Co., 415 U. S. 36,
415 U. S. 44
(1974);
McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 800
(1973);
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S.
429-430 (1971), and ordained that its policy of
outlawing such discrimination should have the "highest priority,"
Alexander, supra at
415 U. S. 47;
Newman v. Piggie Park Enterprises, Inc., 390 U.
S. 400,
390 U. S. 402
(1968). Last Term's
Albemarle Paper Co. v. Moody,
422 U. S. 405
(1975), consistently with the congressional plan, held that one of
the central purposes of Title VII is "to make persons whole for
injuries suffered on account of unlawful employment
discrimination."
Id. at
422 U. S. 418.
To effectuate this "make whole" objective, Congress, in § 706(g),
vested broad equitable discretion in the federal courts to
"order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay . . . or any other equitable
relief as the court deems appropriate."
The legislative history supporting
Page 424 U. S. 764
the 1972 amendments of § 706(g) of Title VII [
Footnote 20] affirms the breadth of this
discretion.
"The provisions of [§ 706(g)] are intended to give the courts
wide discretion exercising their equitable powers to fashion the
most complete relief possible. . . . [T]he Act is intended to make
the victims of unlawful employment discrimination whole, and . . .
the attainment of this objective . . . requires that persons
aggrieved by the consequences and effects of the unlawful
employment practice be, so far as possible, restored to a position
where they would have been were it not for the unlawful
discrimination."
Section-by-Section Analysis of H.R. 1746, accompanying the Equal
Employment Opportunity Act of 1972 -- Conference Report, 118
Cong.Rec. 7166, 7168 (1972). This is emphatic confirmation that
federal courts are empowered to fashion such relief as the
particular circumstances of a case may require to effect
restitution, making whole insofar as possible the victims of racial
discrimination in hiring. [
Footnote 21] Adequate relief may well be
Page 424 U. S. 765
denied in the absence of a seniority remedy slotting the victim
in that position in the seniority system that would have been his
had he been hired at the time of
Page 424 U. S. 766
his application. It can hardly be questioned that ordinarily
such relief will be necessary to achieve the "make-whole" purposes
of the Act.
Seniority systems and the entitlements conferred by credits
earned thereunder are of vast and increasing importance in the
economic employment system of this Nation. S. Slichter, J. Healy,
& E. Livernash, The Impact of Collective Bargaining on
Management 10115 (1960). Seniority principles are increasingly used
to allocate entitlements to scarce benefits among competing
employees ("competitive status" seniority) and to compute
noncompetitive benefits earned under the contract of employment
("benefit" seniority).
Ibid. We have already said about
"competitive status" seniority that it "has become of overriding
importance, and one of its major functions is to determine who gets
or who keeps an available job."
Humphrey v. Moore,
375 U. S. 335,
375 U. S.
346-347 (1964).
"More than any other provision of the collective [bargaining]
agreement . . . seniority affects the economic security of the
individual employee covered by its terms."
Aaron, Reflections on the Legal Nature and Enforceability of
Seniority Rights, 75 Harv.L.Rev. 1532, 1535 (1962). "Competitive
status" seniority also often plays a broader role in modern
employment systems, particularly systems operated under collective
bargaining agreements:
"Included among the benefits, options, and safeguards affected
by competitive status seniority are not only promotion and layoff,
but also transfer, demotion, rest days, shift assignments,
prerogative in scheduling vacation, order of layoff, possibilities
of lateral transfer to avoid layoff, 'bumping' possibilities in the
face of layoff, order of recall, training opportunities, working
conditions, length of layoff endured without reducing seniority,
length of layoff
Page 424 U. S. 767
recall rights will withstand, overtime opportunities, parking
privileges, and, in one plant, a preferred place in the punch-out
line."
Stacy, 28 Vand.L.Rev.
supra at 490 (footnotes
omitted).
Seniority standing in employment with respondent Bowman,
computed from the departmental date of hire, determines the order
of layoff and recall of employees. [
Footnote 22] Further, job assignments for OTR drivers are
posted for competitive bidding and seniority is used to determine
the highest bidder. [
Footnote
23] As OTR drivers are paid on a per-mile basis, [
Footnote 24] earnings are therefore
to some extent a function of seniority. Additionally, seniority
computed from the company date of hire determines the length of an
employee's vacation [
Footnote
25] and pension benefits. [
Footnote 26] Obviously merely to require Bowman to hire
the class 3 victim of discrimination falls far short of a "make
whole" remedy. [
Footnote 27]
A concomitant award of the seniority credit he presumptively would
have earned but for the wrongful treatment would also seem
necessary in the absence of justification for denying that relief.
Without an award of seniority dating from the time when he was
discriminatorily refused employment, an individual
Page 424 U. S. 768
who applies for and obtains employment as an OTR driver pursuant
to the District Court's order will never obtain his rightful place
in the hierarchy of seniority according to which these various
employment benefits are distributed. He will perpetually remain
subordinate to persons who, but for the illegal discrimination,
would have been in respect to entitlement to these benefits his
inferiors. [
Footnote 28]
The Court of Appeals apparently followed this reasoning in
holding that the District Court erred in not granting seniority
relief to class 4 Bowman employees who were discriminatorily
refused transfer to OTR positions. Yet the class 3 discriminatees
in the absence of a comparable seniority award would also remain
subordinated in the seniority system to the class 4 discriminatees.
The distinction plainly finds no support anywhere in Title VII or
its legislative history. Settled law dealing with the related
"twin" areas of discriminatory hiring and discharges violative of
the National Labor Relations Act, 49 Stat. 449, as amended, 29
U.S.C. § 151
et seq., provides a persuasive analogy. "[I]t
would indeed be surprising if Congress gave a remedy for the one
which it denied for the other."
Page 424 U. S. 769
Phelps Dodge Corp. v. NLRB, 313 U.
S. 177,
313 U. S. 187
(1941). For courts to differentiate without justification between
the classes of discriminatees "would be a differentiation not only
without substance, but in defiance of that against which the
prohibition of discrimination is directed."
Id. at
313 U. S.
188.
Similarly, decisions construing the remedial section of the
National Labor Relations Act, § 10(c), 29 U.S.C. § 160(c) -- the
model for § 706(g),
Albemarle Paper, 422 U.S. at
422 U. S. 419
[
Footnote 29] -- make clear
that remedies constituting authorized "affirmative action" include
an award of seniority status, for the thrust of "affirmative
action" redressing the wrong incurred by an unfair labor practice
is to make "the employees whole, and thus restor[e] the economic
status quo that would have obtained but for the company's
wrongful [act]."
NLRB v. Rutter-Rex Mfg. Co., 396 U.
S. 258,
396 U. S. 263
(1969). The task of the NLRB in applying § 10(c) is "to take
measures designed to recreate the conditions and relationships that
would have been had there been no unfair labor practice."
Carpenters v. NLRB, 365 U. S. 651,
365 U. S. 657
(1961) (Harlan, J., concurring). And the NLRB has often required
that the hiring of employees who have been discriminatorily refused
employment be accompanied by an award of seniority equivalent to
that which
Page 424 U. S. 770
they would have enjoyed but for the illegal conduct.
See,
e.g., In re Phelps Dodge Corp., 19 N.L.R.B. 547, 600, and n.
39, 603-604 (1940),
modified on other grounds,
313 U. S. 177
(1941) (ordering persons discriminatorily refused employment hired
"without prejudice to their seniority or other rights and
privileges");
In re Nevada Consolidated Copper Corp., 26
N.L.R.B. 1182, 1235 (1940),
enforced, 316 U.
S. 105 (1942) (ordering persons discriminatorily refused
employment hired with "any seniority or other rights and privileges
they would have acquired, had the respondent not unlawfully
discriminated against them"). Plainly the "affirmative action"
injunction of § 706(g) has no lesser reach in the district
courts.
"Where racial discrimination is concerned, 'the [district] court
has not merely the power, but the duty, to render a decree which
will, so far as possible, eliminate the discriminatory effects of
the past as well as bar like discrimination in the future.'"
Albemarle Paper, supra at
422 U. S.
418.
IV
We are not to be understood as holding that an award of
seniority status is requisite in all circumstances. The fashioning
of appropriate remedies invokes the sound equitable discretion of
the district courts. Respondent Bowman attempts to justify the
District Court's denial of seniority relief for petitioners as an
exercise of equitable discretion, but the record is its own
refutation of the argument.
Albemarle Paper, supra at
422 U. S. 416,
made clear that discretion imports not the court's
"
inclination, but . . . its judgment; and its judgment is to be
guided by sound legal principles.'" Discretion is vested not for
purposes of "limit[ing] appellate review of trial courts, or . . .
invit[ing] inconsistency and caprice," but rather to allow the most
complete achievement of the objectives
Page 424 U. S.
771
of Title VII that is attainable under the facts and
circumstances of the specific case. 422 U.S. at 422 U. S. 421.
Accordingly, the District Court's denial of any form of seniority
remedy must be reviewed in terms of its effect on the attainment of
the Act's objectives under the circumstances presented by this
record. No less than with the denial of the remedy of backpay, the
denial of seniority relief to victims of illegal racial
discrimination in hiring is permissible
"only for reasons which, if applied generally, would not
frustrate the central statutory purposes of eradicating
discrimination throughout the economy and making persons whole for
injuries suffered through past discrimination."
Ibid.
The District Court stated two reasons for its denial of
seniority relief for the unnamed class members. [
Footnote 30] The first was that those
individuals had not filed administrative charges under the
provisions of Title VII with the Equal Employment Opportunity
Commission, and therefore class relief of this sort was not
appropriate. We rejected this justification for denial of
class-based relief in the context of backpay awards in
Albemarle Paper, and for the same reasons reject it here.
This justification for denying class-based relief in Title VII
suits has been unanimously rejected by the courts of appeals, and
Congress ratified that construction by the 1972 amendments.
Albemarle Paper, supra at
422 U. S. 414
n. 8.
The second reason stated by the District Court was that such
claims
"presuppose a vacancy, qualification,
Page 424 U. S. 772
and performance by every member. There is no evidence on which
to base these multiple conclusions."
Pet. for Cert. A54. The Court of Appeals rejected this reason
insofar as it was the basis of the District Court's denial of
backpay, and of its denial of retroactive seniority relief to the
unnamed members of class 4. We hold that it is also an improper
reason for denying seniority relief to the unnamed members of class
3.
We read the District Court's reference to the lack of evidence
regarding a "vacancy, qualification, and performance" for every
individual member of the class as an expression of concern that
some of the unnamed class members (unhired black applicants whose
employment applications were summarized in the record) may not, in
fact, have been actual victims of racial discrimination. That
factor will become material however only when those persons reapply
for OTR positions pursuant to the hiring relief ordered by the
District Court. Generalizations concerning such individually
applicable evidence cannot serve as a Justification for the denial
of relief to the entire class. Rather, at such time as individual
class members seek positions as OTR drivers, positions for which
they are presumptively entitled to priority hiring consideration
under the District Court's order, [
Footnote 31] evidence that particular individuals were
not, in fact, victims of racial discrimination will be material.
But petitioners here have carried their burden of demonstrating the
existence of a discriminatory hiring pattern and practice by the
respondents and, therefore, the burden will be upon respondents to
prove that individuals who reapply were not, in fact, victims of
previous hiring discrimination.
Page 424 U. S. 773
Cf. McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 802
(1973);
Baxter v. Savannah Sugar Rfg. Corp., 495 F.2d 437,
443-444 (CA5),
cert. denied, 419 U.S. 1033 (1974).
[
Footnote 32] Only if this
burden is met may retroactive seniority -- if otherwise determined
to be an appropriate form of relief under the circumstances of the
particular case -- be denied individual class members.
Respondent Bowman raises an alternative theory of justification.
Bowman argues that an award of retroactive seniority to the class
of discriminatees will conflict with the economic interests of
other Bowman employees. Accordingly, it is argued, the District
Court acted within its discretion in denying this form of relief as
an attempt to accommodate the competing interests of the various
groups of employees. [
Footnote
33]
Page 424 U. S. 774
We reject this argument for two reasons. First, the District
Court made no mention of such considerations in its order denying
the seniority relief. As we noted in
Albemarle Paper, 422
U.S. at
422 U. S. 421
n. 14, if the district court declines, due to the peculiar
circumstances of the particular case, to award relief generally
appropriate under Title VII, "[i]t is necessary . . . that . . . it
carefully articulate its reasons" for so doing. Second, and more
fundamentally, it is apparent that denial of seniority relief to
identifiable victims of racial discrimination on the sole ground
that such relief diminishes the expectations of other, arguably
innocent, employees would if applied generally frustrate the
central "make whole" objective of Title VII. These conflicting
interests of other employees will, of course, always be present in
instances where some scarce employment benefit is distributed among
employees on the basis of their status in the seniority hierarchy.
But, as we have said, there is nothing in the language of Title
VII, or in its legislative history, to show that Congress intended
generally to bar this form of relief to victims of illegal
discrimination, and the experience under its remedial model in the
National Labor Relations Act points to the contrary. [
Footnote 34] Accordingly,
Page 424 U. S. 775
we find untenable the conclusion that this form of relief may be
denied merely because the interests of other employees may thereby
be affected.
"If relief under Title VII can be denied merely because the
majority group of employees, who have not suffered discrimination,
will be unhappy about it, there will be little hope of correcting
the wrongs to which the Act is directed."
United States v. Bethlehem Steel Corp., 446 F.2d 652,
663 (CA2 1971). [
Footnote
35]
Page 424 U. S. 776
With reference to the problems of fairness or equity respecting
the conflicting interests of the various groups of employees, the
relief which petitioners seek is only seniority status retroactive
to the date of individual application, rather than some form of
arguably more complete relief. [
Footnote 36] No claim is asserted that nondiscriminatee
employees holding OTR positions they would not have obtained but
for the illegal discrimination should be deprived of the seniority
status they have earned. It is therefore clear that, even if the
seniority relief petitioners seek is awarded, most if not all
discriminatees who actually obtain OTR jobs under the court order
will not truly be restored to the actual seniority that would have
existed in the absence of the illegal discrimination. Rather, most
discriminatees, even under an award of retroactive seniority
status, will still remain subordinated in the hierarchy to a
position inferior to that of a greater total number of employees
than would have been the case in the absence of discrimination.
Page 424 U. S. 777
Therefore, the relief which petitioners seek, while a more
complete form of relief than that which the District Court
accorded, in no sense constitutes "complete relief." [
Footnote 37] Rather, the burden of
the past discrimination in hiring is with respect to competitive
status benefits divided among discriminatee and nondiscriminatee
employees under the form of relief sought. The dissent criticizes
the Court's result as not sufficiently cognizant that it will
"directly implicate the rights and expectations of perfectly
innocent employees."
Post at
424 U. S. 788.
We are of the view, however, that the result which we reach today
-- which, standing alone, [
Footnote 38] establishes that a sharing of the burden of
the past discrimination is presumptively necessary -- is entirely
consistent with any fair characterization of equity jurisdiction,
[
Footnote 39]
particularly
Page 424 U. S. 778
when considered in light of our traditional view that
"[a]ttainment of a great national policy . . . must not be
confined within narrow canons for equitable relief deemed suitable
by chancellors in ordinary private controversies."
Phelps Dodge Corp. v. NLRB, 313 U.S. at
313 U. S.
188.
Certainly there is no argument that the award of retroactive
seniority to the victims of hiring discrimination in any way
deprives other employees of indefeasibly vested rights conferred by
the employment contract. This Court has long held that employee
expectations arising from a seniority system agreement may be
modified by statutes furthering a strong public policy interest.
[
Footnote 40]
Tilton v.
Missouri Pacific R. Co., 376 U. S. 169
(1964) (construing §§ 9(c)(1) and 9(c)(2) of the Universal Military
Training and Service Act, 1948, 50 U.S.C.App. § § 459(c)(1) and
(2), which provided that a reemployed returning veteran should
enjoy the seniority status he would have acquired but for his
absence in military service);
Fishgold v. Sullivan Drydock
& Repair Corp., 328 U. S. 275
(1946) (construing the comparable provision of the Selective
Training and Service Act of 1940). The Court has also held that a
collective bargaining agreement may go further, enhancing the
seniority status of certain employees for purposes of furthering
public policy interests beyond what is required by statute, even
though this will to some extent be detrimental to
Page 424 U. S. 779
the expectations acquired by other employees under the previous
seniority agreement.
Ford Motor Co. v. Huffman,
345 U. S. 330
(1953). And the ability of the union and employer voluntarily to
modify the seniority system to the end of ameliorating the effects
of past racial discrimination, a national policy objective of the
"highest priority," is certainly no less than in other areas of
public policy interests.
Pellicer v. Brotherhood of Ry. &
S.S. Clerks, 217 F.2d 205 (CA5 1954),
cert. denied,
349 U.S. 912 (1955).
See also Cooper & Sobol, 82
Harv.L.Rev. at 1605.
V
In holding that class-based seniority relief for identifiable
victims of illegal hiring discrimination is a form of relief
generally appropriate under § 706(g), we do not in any way modify
our previously expressed view that the statutory scheme of Title
VII
"implicitly recognizes that there may be cases calling for one
remedy but not another, and -- owing to the structure of the
federal judiciary -- these choices are, of course, left in the
first instance to the district courts."
Albemarle Paper, 422 U.S. at
422 U. S. 416.
Circumstances peculiar to the individual case may, of course,
justify the modification or withholding of seniority relief for
reasons that would not if applied generally undermine the purposes
of Title VII. [
Footnote 41]
In the
Page 424 U. S. 780
instant case, it appears that all new hirees establish seniority
only upon completion of a 45-day probationary period, although,
upon completion, seniority is retroactive to the date of hire.
Certainly any seniority relief ultimately awarded by the District
Court could properly be cognizant of this fact.
Amici and
the respondent union point out that there may be circumstances
where an award of full seniority should be deferred until
completion of a training or apprenticeship program, or other
preliminaries required of all new hirees. [
Footnote 42] We do not undertake to delineate
all such possible circumstances here. Any enumeration must await
particular cases and be determined in light of the trial courts'
"keener appreciation" of peculiar facts and circumstances.
Albemarle Paper, supra at
422 U. S.
421-422.
Accordingly, the judgment of the Court of Appeals affirming the
District Court's denial of seniority relief to class 3 is reversed,
and the case is remanded to the District Court for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
Petitioners also alleged an alternative claim for relief for
violations of 42 U.S.C. § 1981. In view of our decision, we have no
occasion to address that claim.
[
Footnote 2]
In 1972, the International Union of District 50 merged with the
United Steelworkers of America, AFL-CIO, and hence the latter, as
the successor bargaining representative, is the union respondent
before this Court. Brief for Respondent United Steelworkers of
America, AFL-CIO, and for American Federation of Labor and Congress
of Industrial Organizations as
Amicus Curiae 5.
[
Footnote 3]
In conjunction with its directions to the District Court
regarding seniority relief for the members of other subclasses not
involved in the issues presently confronting this Court, the Court
of Appeals directed that class 4 members who transferred to OTR
positions under the District Court's decree should be allowed to
carry over all accumulated company seniority for all purposes in
the OTR department. 495 F.2d at 417.
[
Footnote 4]
The District Court determined that Lee first filed his
employment application with Bowman on January 13, 1970, and was
discriminatorily refused employment at that time. Lee was later
hired by Bowman on September 18, 1970, after he had filed a
complaint with the Equal Employment Opportunity Commission. The
District Court awarded Lee $13,124.58 as backpay for the
intervening period of discrimination.
[
Footnote 5]
"There must not only be a named plaintiff who has such a case or
controversy at the time the complaint is filed, and at the time the
class action is certified by the District Court pursuant to Rule
23, but there must be a live controversy at the time this Court
reviews the case. . . . The controversy may exist, however, between
a named defendant and a member of the class represented by the
named plaintiff, even though the claim of the named plaintiff has
become moot."
Sosna, 419 U.S. at
419 U. S. 402
(footnotes omitted).
[
Footnote 6]
In
Board of School Comm'rs v. Jacobs, the named
plaintiffs no longer possessed a personal stake in the outcome at
the time the case reached this Court for review. As the action had
not been properly certified as a class action by the District
Court, we held it moot. 420 U.S. at
420 U. S.
129.
[
Footnote 7]
To the contrary,
Sosna, 419 U.S. at
419 U. S. 401
n. 10, cited with approval two Courts of Appeals decisions not
involving "evading review" issues which held, in circumstances less
compelling than those presented by the instant case, that Title VII
claims of unnamed class members are not automatically mooted merely
because the named representative is determined to be ineligible for
relief for reasons peculiar to his individual claim.
Roberts v.
Union Co., 487 F.2d 387 (CA6 1973);
Moss v. Lane Co.,
471 F.2d 853 (CA4 1973). In the
Moss case, the Court of
Appeals for the Fourth Circuit followed its prior decision in
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377,
cert. denied, 409 U.S. 982 (1972). That case involved
circumstances similar to those before us. There, the named
representative had proved his personal § 1981 claim against his
former employer but was, for reasons special to himself, determined
to be ineligible for the Title VII relief sought on behalf of
himself and the class of discriminatees he represented.
[
Footnote 8]
Thus, the "capable of repetition, yet evading review" dimension
of
Sosna must be understood in the context of mootness as
one of the policy rules often invoked by the Court
"to avoid passing prematurely on constitutional questions.
Because [such] rules operate in 'cases confessedly within [the
Court's] jurisdiction,' . . . they find their source in policy,
rather than purely constitutional, considerations."
Flast v. Cohen, 392 U. S. 83,
392 U. S. 97
(1968).
See also id. at
392 U. S. 120
n. 8 (Harlan, J., dissenting);
Ashwander v. TVA,
297 U. S. 288,
297 U. S.
345-348 (1936) (Brandeis, J., concurring).
[
Footnote 9]
Nor are there present in the instant case nonconstitutional
policy considerations,
n 8,
supra, mitigating against review by this Court at the
present time. Indeed, to "split up" the underlying case and require
that the individual class members begin anew litigation on the sole
issue of seniority relief would be destructive of the ends of
judicial economy and would postpone indefinitely relief which under
the law may already be long overdue.
[
Footnote 10]
By its terms, the judgment of the District Court. runs to all
black applicants for OTR positions prior to January 1, 1972, and is
not qualified by a limitation that the discriminatory refusal to
hire must have taken place after the effective date of the Act.
However, only post-Act victims of racial discrimination are members
of class 3. Title VII's prohibition on racial discrimination in
hiring became effective on July 2, 1965, one year after the date of
its enactment. Pub.L. 88-352, §§ 716(a)-(b), 78 Stat. 266.
Petitioners sought relief in this case for identifiable applicants
for OTR positions "whose applications were put in evidence at the
trial." App. 20a. There were 206 unhired black applicants prior to
January 1, 1972, whose written applications are summarized in the
record and none of the applications relates to years prior to 1970.
Id. at 52a, Table VA.
[
Footnote 11]
See Last Hired, First Fired Seniority, Layoffs, and
Title VII: Questions of Liability and Remedy, 11 Col.J.L. &
Soc.Prob. 343, 376, 378 (1975).
[
Footnote 12]
See H.R.Rep. No. 914, 88th Cong., 1st Sess. (1963).
[
Footnote 13]
110 Cong.Rec. 2804 (1964)
[
Footnote 14]
H.R.Rep. No. 914,
supra.
[
Footnote 15]
The full text of the memorandum pertaining to seniority
states:
"Title VII would have no effect on established seniority rights.
Its effect is prospective, and not retrospective. Thus, for
example, if a business has been discriminating in the past and, as
a result, has an all-white working force when the title comes into
effect, the employer's obligation would be simply to fill future
vacancies on a nondiscriminatory basis. He would not be obliged --
or indeed, permitted -- to fire whites in order to hire Negroes, or
to prefer Negroes for future vacancies, or, once Negroes are hired,
to give them special seniority rights at the expense of the white
workers hired earlier. (However, where waiting lists for employment
or training are, prior to the effective date of the title,
maintained on a discriminatory basis, the use of such lists after
the title takes effect may be held an unlawful subterfuge to
accomplish discrimination.)"
[
Footnote 16]
The full text of the statement pertinent to seniority reads:
"First, it has been asserted that title VII would undermine
vested rights of seniority. This is not correct. Title VII would
have no effect on seniority rights existing at the time it takes
effect. If, for example, a collective bargaining contract provides
that, in the event of layoffs, those who were hired last must be
laid off first, such a provision would not be affected in the least
by title VII. This would be true even in the case where, owing to
discrimination prior to the effective date of the title, white
workers had more seniority than Negroes. Title VII is directed at
discrimination based on race, color, religion, sex, or national
origin. It is perfectly clear that, when a worker is laid off or
denied a chance for promotion because, under established seniority
rules, he is 'low man on the totem pole,' he is not being
discriminated against because of his race. Of course, if the
seniority rule itself is discriminatory, it would be unlawful under
title VII. If a rule were to state that all Negroes must be laid
off before any white man, such a rule could not serve as the basis
for a discharge subsequent to the effective date of the title. I do
not know how anyone could quarrel with such a result. But, in the
ordinary case, assuming that seniority rights were built up over a
period of time during which Negroes were not hired, these rights
would not be set aside by the taking effect of title VII. Employers
and labor organizations would simply be under a duty not to
discriminate against Negroes because of their race. Any differences
in treatment based on established seniority rights would not be
based on race, and would not be forbidden by the title."
110 Cong.Rec. 7207 (1964).
Senator Clark also introduced into the Congressional Record a
set of answers to a series of questions propounded by Senator
Dirksen. Two of these questions and answers are pertinent to the
issue of seniority:
"Question. Would the same situation prevail in respect to
promotions, when that management function is governed by a labor
contract calling for promotions on the basis of seniority? What of
dismissals? Normally, labor contracts call for 'last hired, first
fired.' If the last hired are Negroes, is the employer
discriminating if his contract requires they be first fired and the
remaining employees are white?"
"Answer. Seniority rights are in no way affected by the bill.
If, under a 'last hired, first fired' agreement, a Negro happens to
be the 'last hired,' he can still be 'first fired' as long as it is
done because of his status as 'last hired,' and not because of his
race."
"Question. If an employer is directed to abolish his employment
list because of discrimination what happens to seniority?"
"Answer. The bill is not retroactive, and it will not require an
employer to change existing seniority lists."
Id. at 7217.
[
Footnote 17]
Id. at 11926, 11931.
[
Footnote 18]
Cf. Gould, Employment Security, Seniority and Race: The
Role of Title VII of the Civil Rights Act of 1964, 13 How.L.J. 1,
8-9, and n. 32 (1967);
see also Jurinko v. Edwin L. Wiegand
Co., 477 F.2d 1038 (CA3),
vacated and remanded on other
grounds, 414 U.S. 970 (1973), wherein the court awarded back
seniority in a case of discriminatory hiring after the effective
date of Title VII without any discussion of the impact of § 703(h)
on the propriety of such a remedy.
[
Footnote 19]
Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) (1970 ed.,
Supp. IV), provides:
"If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the
respondent from engaging in such unlawful employment practice and
order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer,
employment agency, or labor organization, as the case may be,
responsible for the unlawful employment practice), or any other
equitable relief as the court deems appropriate. Back pay liability
shall not accrue from a date more than two years prior to the
filing of a charge with the Commission. Interim earnings or amounts
earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay
otherwise allowable. No order of the court shall require the
admission or reinstatement of an individual as a member of a union,
or the hiring, reinstatement, or promotion of an individual as an
employee, or the payment to him of any back pay, if such individual
was refused admission, suspended, or expelled, or was refused
employment or advancement or was suspended or discharged for any
reason other than discrimination on account of race, color,
religion, sex, or national origin or in violation of section 2000e
3(a) of this title."
[
Footnote 20]
Equal Employment Opportunity Act of 1972, 86 Stat. 103, amending
42 U.S.C. § 2000e
et seq.
[
Footnote 21]
It is true that backpay is the only remedy specifically
mentioned in § 706(g). But to draw from this fact and other
sections of the statute,
post at
424 U. S.
789-793, any implicit statement by Congress that
seniority relief is a prohibited, or at least less available, form
of remedy is not warranted. Indeed, any such contention necessarily
disregards the extensive legislative history underlying the 1972
amendments to Title VII. The 1972 amendments added the phrase
speaking to "other equitable relief" in 706(g). The Senate Report
manifested an explicit concern with the "earnings gap" presently
existing between black and white employees in American society.
S.Rep. No. 92-415, p. 6 (1971). The Reports of both Houses of
Congress indicated that "rightful place" was the intended objective
of Title VII and the relief accorded thereunder.
Ibid.; R.
Rep. No. 92-238, p. 4 (1971). As indicated,
infra at
424 U. S.
767-768, and n. 28, rightful-place seniority,
implicating an employee's future earnings, job security, and
advancement prospects, is absolutely essential to obtaining this
congressionally mandated goal.
The legislative history underlying the 1972 amendments
completely answers the argument that Congress somehow intended
seniority relief to be less available in pursuit of this goal. In
explaining the need for the 1972 amendments, the Senate Report
stated:
"Employment discrimination as viewed today is a . . . complex
and pervasive phenomenon. Experts familiar with the subject now
generally describe the problem in terms of 'systems' and 'effects,'
rather than simply intentional wrongs, and the literature on the
subject is replete with discussions of, for example, the mechanics
of seniority and lines of progression, perpetuation of the present
effect of pre-act discriminatory practices through various
institutional devices, and testing and validation
requirements."
S.Rep. No. 92-415,
supra at 5.
See also
H.R.Rep. No. 92-238,
supra at 8. In the context of this
express reference to seniority, the Reports of both Houses cite
with approval decisions of the lower federal courts which granted
forms of retroactive "rightful place" seniority relief. S.Rep. No.
9215,
supra at 5 n. 1; H.R.Rep. No. 92-238,
supra
at 8 n. 2. (The dissent,
post at
424 U. S.
796-797, n. 18, would distinguish these lower federal
court decisions as not involving instances of discriminatory
hiring. Obviously, however, the concern of the entire thrust of the
dissent -- the impact of rightful-place seniority upon the
expectations of other employees -- is in no way a function of the
specific type of illegal discriminatory practice upon which the
judgment of liability is predicated.) Thereafter, in language that
could hardly be more explicit, the analysis accompanying the
Conference Report stated:
"In any area where the new law does not address itself, or in
any areas where a specific contrary intention is not indicated, it
was assumed
that the present case law as developed by the
courts would continue to govern the applicability and construction
of Title VII."
Section-By-Section Analysis of H.R. 1746, accompanying The Equal
Employment Opportunity Act of 1972 -- Conference Report, 118
Cong.Rec. 7166 (1972) (emphasis added).
[
Footnote 22]
App. 46a-50a
[
Footnote 23]
Ibid.
[
Footnote 24]
Record 161.
[
Footnote 25]
App. 47a, 51a.
[
Footnote 26]
2 Record 169.
[
Footnote 27]
Further, at least in regard to "benefit"-type seniority such as
length of vacation leave and pension benefits in the instant case,
any general bar to the award of retroactive seniority for victims
of illegal hiring discrimination serves to undermine the mutually
reinforcing effect of the dual purposes of Title VII; it reduces
the restitution required of an employer at such time as he is
called upon to account for his discriminatory actions perpetrated
in violation of the law.
See Albemarle Paper Co. v. Moody,
422 U. S. 405,
422 U. S.
417-418 (1975).
[
Footnote 28]
Accordingly, it is clear that the seniority remedy which
petitioners seek does not concern only the "make whole" purposes of
Title VII. The dissent errs in treating the issue of seniority
relief as implicating only the "make whole" objective of Title VII
and in stating that "Title VII's
primary objective' of
eradicating discrimination is not served at all. . . ."
Post at 424 U. S. 788.
Nothing could be further from reality -- the issue of seniority
relief cuts to the very heart of Title VII's primary objective of
eradicating present and future discrimination in a way that
backpay, for example, can never do.
"[S]eniority, after all, is a right which a worker exercises in
each job movement in the future, rather than a simple one-time
payment for the past."
Poplin, Fair Employment in a Depressed Economy: The Layoff
Problem, 23 U.C.L.A.L.Rev. 177, 225 (1975).
[
Footnote 29]
To the extent that there is a difference in the wording of the
respective provisions, § 706(g) grants, if anything, broader
discretionary powers than those granted the National Labor
Relations Board. Section 10(c) of the NLRA authorizes "such
affirmative action including reinstatement of employees with or
without back pay, as will effectuate the policies of this
subchapter," 29 U.S.C. § 160(c), whereas § 706(g) as amended in
1972 authorizes
"such affirmative action as may be appropriate, which may
include,
but is not limited to, reinstatement
or
hiring of employees, with or without back pay . . or an other
equitable relief as the court deems appropriate."
42 U.S.C. § 2000e-5(g) (1970 ed., Supp. IV) (emphasis
added).
[
Footnote 30]
Since the Court of Appeals concluded that an award of
retroactive seniority to the unnamed members of class 3 was barred
by § 703(h), a conclusion which we today reject, the court did not
address specifically the District Court's stated reasons for
refusing the relief. The Court of Appeals also stated, however,
that the District Court did not "abuse its discretion" in refusing
such relief, 495 F.2d 398, 418 (1974), and we may therefore
appropriately review the validity of the District Court's
reasons.
[
Footnote 31]
The District Court order is silent as to whether applicants for
OTR positions who were previously discriminatorily refused
employment must be presently qualified for those positions in order
to be eligible for priority hiring under that order. The Court of
Appeals, however, made it plain that they must be.
Id. at
417. We agree.
[
Footnote 32]
Thus Bowman may attempt to prove that a given individual member
of class 3 was not, in fact, discriminatorily refused employment as
an OTR driver in order to defeat the individual's claim to
seniority relief as well as any other remedy ordered for the class
generally. Evidence of a lack of vacancies in OTR positions at the
time the individual application was filed, or evidence indicating
the individual's lack of qualification for the OTR positions --
under nondiscriminatory standards
actually applied by
Bowman to individuals who were, in fact, hired -- would, of course,
be relevant. It is true, of course, that obtaining the third
category of evidence with which the District Court was concerned --
what the individual discriminatee's job performance would have been
but for the discrimination -- presents great difficulty. No reason
appears, however, why the victim, rather than the perpetrator of
the illegal act, should bear the burden of proof on this issue.
[
Footnote 33]
Even by its terms, this argument could apply only to the award
of retroactive seniority for purposes of "competitive status"
benefits. It has no application to a retroactive award for purposes
of "benefit" seniority -- extent of vacation leave and pension
benefits. Indeed, the decision concerning the propriety of this
latter type of seniority relief is analogous, if not identical, to
the decision concerning an award of backpay to an individual
discriminatee hired pursuant to an order redressing previous
employment discrimination.
[
Footnote 34]
With all respect, the dissent does not adequately treat with,
and fails to distinguish,
post at
424 U. S.
796-799, the standard practice of the National Labor
Relations Board granting retroactive seniority relief under the
National Labor Relations Act to persons discriminatorily discharged
or refused employment in violation of the Act. The Court in
Phelps Dodge Corp. v. NLRB, 313 U.
S. 177,
313 U. S. 196
(1941), of course, made reference to "restricted judicial review"
as that case arose in the context of review of the policy
determinations of an independent administrative agency, which are
traditionally accorded a wide-ranging discretion under accepted
principles of judicial review.
"Because the relation of remedy to policy is peculiarly a matter
for administrative competence, courts must not enter the allowable
area of the Board's discretion."
Id. at
313 U. S. 194.
As we made clear in
Albemarle Paper, however, the
pertinent point is that, in utilizing the NLRA as the remedial
model for Title VII, reference must be made to actual operation and
experience as it has evolved in administering the Act.
E.g., "We may assume that Congress was aware that the
Board, since its inception, has awarded backpay as a matter of
course." 422 U.S. at
422 U. S.
419-420. "[T]he Board has from its inception pursued
a practically uniform policy with respect to these orders
requiring affirmative action.'" Id. at 422 U. S. 420
n. 12.
The dissent has cited no case, and our research discloses none,
wherein the Board has ordered hiring relief and yet withheld the
remedy of retroactive seniority status. Indeed, the Court of
Appeals for the First Circuit has noted that a Board order
requiring hiring relief "without prejudice to . . . seniority and
other rights and privileges" is "language . . . in the standard
form which has long been in use by the Board."
NLRB v. Draper
Corp., 159 F.2d 294, 296-297, and n. 1 (1947). The Board
"routinely awards both back pay and retroactive seniority in hiring
discrimination cases." Poplin,
supra, n 28, at 223.
See also Edwards &
Zaretasky, Preferential Remedies for Employment Discrimination, 74
Mich.L.Rev. 1, 45 n. 224 (1975) (a "common remedy"); Last Hired,
First Fired Seniority, Layoffs and Title VII,
supra,
n 11, at 377 ("traditionally
and uniformly required"). This also is a "presumption" in favor of
this form of seniority relief. If victims of racial discrimination
are under Title VII to be treated differently and awarded less
protection than victims of unfair labor practice discrimination
under the NLRA, some persuasive justification for such disparate
treatment should appear. That no justification exists doubtless
explains the position of every union participant in the proceedings
before the Court in the instant case arguing for the conclusion we
have reached.
[
Footnote 35]
See also Vogler v. McCarty, Inc., 451 F.2d 1236,
1238-1239 (CA5 1971):
"Adequate protection of Negro rights under Title VII may
necessitate, as in the instant case, some adjustment of the rights
of white employees. The Court must be free to deal equitably with
conflicting interests of white employees in order to shape remedies
that will most effectively protect and redress the rights of the
Negro victims of discrimination."
[
Footnote 36]
Another countervailing factor in assessing the expected impact
on the interests of other employees actually occasioned by an award
of the seniority relief sought is that it is not probable in
instances of class-based relief that all of the victims of the past
racial discrimination in hiring will actually apply for and obtain
the prerequisite hiring relief. Indeed, in the instant case, there
appear in the record the rejected applications of 166 black
applicants who claimed at the time of application to have had the
necessary job qualifications. However, the Court was informed at
oral argument that only a small number of those individuals have to
this date actually been hired pursuant to the District Court's
order ("five, six, seven, something in that order"), Tr. of Oral
Arg. 23, although ongoing litigation may ultimately determine more
who desire the hiring relief and are eligible for it.
Id.
at 15.
[
Footnote 37]
In no way can the remedy established as presumptively necessary
be characterized as "total restitution,"
post at
424 U. S. 791
n. 9, or as deriving from an "absolutist conception of
make
whole'" relief. Post at 424 U. S.
791.
[
Footnote 38]
In arguing that an award of the seniority relief established as
presumptively necessary does nothing to place the burden of the
past discrimination on the wrongdoer in most cases -- the employer
-- the dissent of necessity addresses issues not presently before
the Court. Further remedial action by the district courts, having
the effect of shifting to the employer the burden of the past
discrimination in respect of competitive status benefits, raises
such issues as the possibility of an injunctive "hold harmless"
remedy respecting all affected employees in a layoff situation,
Brief for Local 862, United Automobile Workers, as
Amicus
Curiae, the possibility of an award of monetary damages
(sometimes designated "front pay") in favor of each employee and
discriminatee otherwise bearing some of the burden of the past
discrimination,
ibid.; and the propriety of such further
remedial action in instances wherein the union has been adjudged a
participant in the illegal conduct. Brief for United States
et
al. as
Amici Curiae. Such issues are not presented by
the record before us, and we intimate no view regarding them.
[
Footnote 39]
"The qualities of mercy and practicality have made equity the
instrument for nice adjustment and reconciliation between the
public interest and private needs, as well as between competing
private claims."
"Moreover, . . . equitable remedies are a special blend of what
is necessary, what is fair, and what is workable. . . . "
" In equity, as nowhere else, courts eschew rigid absolutes and
look to the practical realities and necessities inescapably
involved in reconciling competing interests. . . ."
Post at
424 U. S.
789-790.
[
Footnote 40]
"[C]laims under Title VII involve the vindication of a major
public interest. . . ." Section-By-Section Analysis of H.R. 1746,
accompanying the Equal Employment Opportunity Act of 1972 --
Conference Report, 118 Cong.Rec. 7166, 7168 (1972).
[
Footnote 41]
Accordingly, to no "significant extent" do we "[strip] the
district courts of [their] equity powers."
Post at
424 U. S. 786.
Rather our holding is that, in exercising their equitable powers,
district courts should take as their starting point the presumption
in favor of rightful-place seniority relief, and proceed with
further legal analysis from that point; and that such relief may
not be denied on the abstract basis of adverse impact upon
interests of other employees, but rather only on the basis of
unusual adverse impact arising from facts and circumstances that
would not be generally found in Title VII cases. To hold otherwise
would be to shield "inconsisten[t] and capri[cious]"denial of such
relief from "thorough appellate review."
Albemarle Paper,
422 U.S. at
422 U. S. 421,
422 U. S.
416.
�
[
Footnote 42]
Brief for United States
et al. as
Amici Curiae
26; Brief for Respondent United Steelworkers of America, AFL-CIO,
and for American Federation of Labor and Congress of Industrial
Organizations as
Amicus Curiae 28 n. 32.
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in
part.
I agree generally with MR. JUSTICE POWELL, but I would stress
that, although retroactive benefit-type seniority relief may
sometimes be appropriate and equitable, competitive-type seniority
relief at the expense of wholly
Page 424 U. S. 781
innocent employees can rarely, if ever, be equitable if that
term retains traditional meaning. More equitable would be a
monetary award to the person suffering the discrimination. An award
such as "front pay" could replace the need for competitive-type
seniority relief.
See, ante at
424 U. S. 777
n. 38. Such monetary relief would serve the dual purpose of
deterring wrongdoing by the employer or union -- or both -- as well
as protecting the rights of innocent employees. In every respect,
an innocent employee is comparable to a "holder-in-due-course" of
negotiable paper or a
bona fide purchaser of property
without notice of any defect in the seller's title. In this
setting, I cannot join in judicial approval of "robbing Peter to
pay Paul."
I would stress that the Court today does not foreclose claims of
employees who might be injured by this holding from securing
equitable relief on their own behalf.
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST joins,
concurring in part and dissenting in part.
I agree that this controversy is not moot, and that, in the
context of a duly certified class action the "capable of
repetition, yet evading review" criterion discussed last Term in
Sosna v. Iowa, 419 U. S. 393
(1975), is only a factor in our discretionary decision whether to
reach the merits of an issue, rather than an Art. III "case or
controversy" requirement. I therefore concur in Part I of the
Court's opinion.
I also agree with Part II of the opinion insofar as it
determines the "thrust" of § 703(h) of Title VII to be the
insulation of an otherwise
bona fide seniority system from
a challenge that it amounts to a discriminatory practice because it
perpetuates the effects of pre-Act discrimination.
Ante at
424 U. S. 761.
Therefore, I concur in the precise holding of Part II, which is
that the Court of Appeals erred in interpreting § 703(h) as a bar,
in
Page 424 U. S. 782
every instance, to the award of retroactive seniority relief to
persons discriminatorily refused employment after the effective
date of Title VII.
Ante at
424 U. S.
762.
Although I am in accord with much of the Court's discussion in
Parts III and IV, I cannot accept as correct its basic
interpretation of § 706(g) as virtually requiring a district court,
in determining appropriate equitable relief in a case of this kind,
to ignore entirely the equities that may exist in favor of innocent
employees. Its holding recognizes no meaningful distinction, in
terms of the equitable relief to be granted, between "benefit"-type
seniority and "competitive"-type seniority. [
Footnote 2/1] The Court reaches this result by taking an
absolutist view of the "make whole" objective of Title VII, while
rendering largely meaningless the discretionary authority vested in
district courts by § 706(g) to weigh the equities of the situation.
Accordingly, I dissent from Parts
424 U. S. S.
770|>IV.
I
My starting point, as it is for the Court, is the decision last
Term in
Albemarle Paper Co. v. Moody, 422 U.
S. 405 (1975). One of the issues there was the standards
a federal district court should follow in determining whether
victims of a discriminatory employment practice should be awarded
backpay. The Court began with
Page 424 U. S. 783
an observation about the nature of backpay awards and other
relief under § 706(g), the basic remedial section of Title VII:
"It is true that backpay is not an automatic or mandatory
remedy; like all other remedies under the Act, it is one which the
courts 'may' invoke. The scheme implicitly recognizes that there
may be cases calling for one remedy, but not another, and -- owing
to the structure of the federal judiciary -- these choices are, of
course, left in the first instance to the district courts."
422 U.S. at
422 U. S. 415
416.
Backpay is the only remedy accompanying reinstatement that is
mentioned specifically in Title VII. Moreover, as noted below,
backpay is a remedy central to achieving the purposes of the Act.
The Court in
Albemarle, recognizing that equitable
discretion under § 706(g) should not be left "unfettered by
meaningful standards or shielded from thorough appellate review,"
422 U.S. at
422 U. S. 416,
required of district courts the "principled application of
standards [in determining backpay awards] consistent with
[congressional] purposes,"
id. at
422 U. S. 417.
It identified two distinct congressional purposes implicit in Title
VII. The "primary objective" was "prophylactic:"
"'to achieve equality of employment opportunities and remove
barriers that have operated in the past to favor an identifiable
group of white employees over other employees.'"
Ibid., quoting
Griggs v. Duke Power Co.,
401 U. S. 424,
401 U. S.
429-430 (1971). The second purpose was "to make persons
whole for injuries suffered on account of unlawful employment
discrimination." 422 U.S. at
422 U. S. 418.
Because backpay served both objectives, [
Footnote 2/2]
Page 424 U. S. 784
the Court concluded that,
"given a finding of unlawful discrimination, backpay should be
denied only for reasons which, if applied generally, would not
frustrate the central statutory purposes of eradicating
discrimination throughout the economy and making persons whole for
injuries suffered through past discrimination."
Id. at
422 U. S.
421.
The Court today, relying upon
Albemarle's holding as to
the "make whole" purpose of Title VII, reasons that adequate relief
for a victim of discrimination ordinarily will require "slotting
the victim in that position in the seniority system that would have
been his had he been hired at the time of his application."
Ante at
424 U. S.
765-766. Accordingly, the Court concludes that complete
retroactive seniority should be treated like backpay, and denied by
a district court only for reasons which, applied generally, could
not "frustrate" the congressional intent.
Ante at
424 U. S. 771.
Although the Court recognizes important differences between
benefit-type seniority and competitive-type seniority, it expressly
includes both in its conclusion that seniority relief presumptively
should be available. [
Footnote 2/3]
For the reasons that follow, I think the
Page 424 U. S. 785
Court's holding cannot be reconciled with § 706(g) or with
fundamental fairness.
II
When a district court orders an award of backpay or retroactive
seniority, it exercises equity powers expressly conferred upon it
by Congress. The operative language of § 706(g) states that, upon a
finding of an unlawful employment practice, the district court may
enjoin the practice and, further, may
"order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer,
employment agency, or labor organization, as the case may be,
responsible for the unlawful employment practice), or any other
equitable relief as the court deems appropriate."
42 U.S.C. 2000e-5(g) (1970 ed., Supp. IV). The last phrase
speaking to "other equitable relief" was added by a 1972 amendment,
Pub.L. No. 92-261, 86 Stat. 103. As noted in
Albemarle,
supra at
422 U. S.
420-421, and again by the Court today,
ante at
424 U. S. 764,
a Section-by-Section Analysis accompanying the Conference Report on
that amendment stated that it was Congress' intention in § 706(g)
"to give the courts wide discretion exercising their equitable
powers to fashion the most complete relief possible." 118 Cong.Rec.
7168 (1972).
The expansive language of § 706(g) and the 1972 legislative
history support a general directive to district courts to grant
"make whole" relief liberally and not refuse it arbitrarily. There
is nothing in either of those sources, however, to suggest that
rectifying economic losses from past wrongs requires the district
courts to disregard normal equitable considerations. Indeed,
such
Page 424 U. S. 786
a requirement is belied by the language of the statute itself,
which speaks of "such affirmative action as may be appropriate" and
such "equitable relief as the court deems appropriate." The
Section-by-Section Analysis similarly recognized that, in
fashioning "the most complete relief possible," the court still is
to exercise "equitable powers." But in holding that a district
court, in the usual case, should order full retroactive seniority
as a remedy for a discriminatory refusal to hire without regard to
the effect upon innocent employees hired in the interim, the Court,
to a significant, extent strips the district courts of the equity
powers vested in them by Congress.
III
A
In
Albemarle Paper, the Court read Title VII as
creating a presumption in favor of backpay. Rather than limiting
the power of district courts to do equity, the presumption insures
that complete equity normally will be accomplished. Backpay forces
the employer [
Footnote 2/4] to
account for economic benefits that he wrongfully has denied the
victim of discrimination. The statutory purposes and equitable
principles converge, for requiring payment of wrongfully withheld
wages deters further wrongdoing at the same time that their
restitution to the victim helps make him whole.
Similarly, to the extent that the Court today finds a like
presumption in favor of granting
benefit-type seniority,
it is recognizing that normally this relief also will be equitable.
As the Court notes,
ante at
424 U. S. 773
n. 33, this type of seniority, which determines pension rights,
length of vacations, size of insurance coverage and
unemployment
Page 424 U. S. 787
benefits, and the like, is analogous to backpay in that its
retroactive grant serves "the mutually reinforcing effect of the
dual purposes of Title VII,"
ante at
424 U. S. 767
n. 27. Benefit-type seniority, like backpay, serves to work
complete equity by penalizing the wrongdoer economically at the
same time that it tends to make whole the one who was wronged.
But the Court fails to recognize that a retroactive grant of
competitive-type seniority invokes wholly different
considerations. This is the type of seniority that determines an
employee's preferential rights to various economic advantages at
the expense of other employees. These normally include the order of
layoff and recall of employees, job and trip assignments, and
consideration for promotion.
It is true, of course, that the retroactive grant of
competitive-type seniority does go a step further in "making whole"
the discrimination victim, and therefore arguably furthers one of
the objectives of Title VII. But apart from extending the
make-whole concept to its outer limits, there is no similarity
between this drastic relief and the granting of backpay and
benefit-type seniority. First, a retroactive grant of
competitive-type seniority usually does not directly affect the
employer at all. It causes only a rearrangement of employees along
the seniority ladder without any resulting increase in cost.
[
Footnote 2/5]
Page 424 U. S. 788
Thus, Title VII's "primary objective" of eradicating
discrimination is not served at all, [
Footnote 2/6] for the employer is not deterred from the
practice.
The second, and, in my view, controlling, distinction between
these types of relief is the impact on other workers. As noted
above, the granting of backpay and of benefit-type seniority
furthers the prophylactic and make-whole objectives of the statute
without penalizing other workers. But competitive seniority
benefits, as the term implies, directly implicate the rights and
expectations of perfectly innocent employees. [
Footnote 2/7] The economic
Page 424 U. S. 789
benefits awarded discrimination victims would be derived not at
the expense of the employer, but at the expense of other workers.
Putting it differently, those disadvantaged -- sometimes to the
extent of losing their jobs entirely -- are not the wrongdoers who
have no claim to the Chancellor's conscience, but, rather, are
innocent third parties.
As noted above in Part II, Congress in § 706(g) expressly
referred to "appropriate" affirmative action and "other equitable
relief as the court deems appropriate." And the 1972
Section-by-Section Analysis still recognized that the touchstone of
any relief is equity. Congress could not have been more explicit in
leaving the relief to the equitable discretion of the court, to be
determined in light of all relevant facts and circumstances.
Congress did underscore "backpay" by specific reference in §
706(g), but no mention is made of the granting of other benefits
upon ordering reinstatement or hiring. The entire question of
retroactive seniority was thus deliberately left to the discretion
of the district court, a discretion to be exercised in accordance
with equitable principles.
"The essence of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree to the necessities
of the particular case. Flexibility, rather than rigidity, has
distinguished it. The qualities of mercy and practicality have made
equity the instrument for nice adjustment and reconciliation
between the public interest and private needs, as well as between
competing private claims."
Hecht Co. v. Bowles, 321 U. S. 321,
321 U. S.
329-330 (1944).
Page 424 U. S. 790
"Moreover, . . . equitable remedies are a special blend of what
is necessary, what is fair, and what is workable. . . ."
Lemon v. Kurtzman, 411 U. S. 192,
411 U. S. 200
(1973) (opinion of BURGER, C.J.).
"In equity, as nowhere else, courts eschew rigid absolutes and
look to the practical realities and necessities inescapably
involved in reconciling competing interests. . . ."
Id. at
411 U. S.
201.
The decision whether to grant competitive-type seniority relief
therefore requires a district court to consider and weigh competing
equities. In any proper exercise of the balancing process, a court
must consider both the claims of the discrimination victims and the
claims of incumbent employees who, if competitive seniority rights
are awarded retroactively to others, will lose economic advantages
earned through satisfactory and often long service. [
Footnote 2/8] If, as the Court today holds,
the district court may not weigh these equities, much of the
language of § 706(g) is rendered meaningless. We cannot assume that
Congress intended either that the statutory language
Page 424 U. S. 791
be ignored or that the earned benefits of incumbent employees be
wiped out by a presumption created by this Court. [
Footnote 2/9]
B
The Court's concern to effectuate an absolutist conception of
"make whole" should he tempered by a recognition that a retroactive
grant of competitive-type seniority touches upon other
congressional concerns expressed in Title VII. Two sections of the
Act, although not speaking directly to the issue, indicate that
this remedy, unlike backpay and benefit-type seniority, should not
be granted automatically.
The first section, § 703(h), has been discussed in the Court's
opinion. As there noted, the "thrust" of that section is the
validation of seniority plans in existence on the effective date of
Title VII. The congressional debates leading to the introduction of
§ 703(h) indicate a concern that Title VII not be construed as
requiring immediate and total restitution to the victims of
discrimination regardless of cost in terms of other workers'
legitimate expectations. Section 703(h) does not restrict the
remedial powers of a district court once a discriminatory
Page 424 U. S. 792
practice has been found, but neither are the concerns expressed
therein irrelevant to a court's determination of "appropriate"
equitable relief under § 706(g). Although the Court of Appeals read
far too much into § 703(h), it properly recognized that the section
does reflect congressional concern for existing rights under a
"
bona fide seniority or merit system."
Also relevant is § 703(j), which prohibits any interpretation of
Title VII that would require an employer to grant "preferential
treatment" to any individual because his race is underrepresented
in the employer's workforce in comparison with the community or the
available workforce. [
Footnote
2/10] A grant of competitive seniority to an identifiable
victim of discrimination is not the kind of preferential treatment
forbidden by § 703(j) but, as counsel for the Steelworkers admitted
at oral argument, it certainly would be "preferential treatment."
[
Footnote 2/11] It constitutes a
preference in the sense that the victim of
Page 424 U. S. 793
discrimination henceforth will outrank, in the seniority system,
the incumbents hired after the discrimination. Moreover, this is a
preference based on a fiction, for the discrimination victim is
placed ahead of others not because of time actually spent on the
job, but "as if" he had worked since he was denied employment. This
also requires an assumption that nothing would have interrupted his
employment, and that his performance would have justified a
progression up the seniority ladder. [
Footnote 2/12] The incumbents, who, in fact, were on
the job during the interim and performing satisfactorily, would be
seriously disadvantaged. The congressional bar to one type of
preferential treatment in § 703(j) should at least give the Court
pause before it imposes upon district courts a duty to grant relief
that creates another type of preference.
IV
In expressing the foregoing views, I suggest neither that
Congress intended to bar a retroactive grant of competitive-type
seniority in all cases [
Footnote
2/13] nor that district
Page 424 U. S. 794
courts should indulge a presumption against such relief.
[
Footnote 2/14] My point,
instead, is that we are dealing with a congressional mandate to
district courts to determine and apply equitable remedies.
Traditionally, this is a balancing process left, within appropriate
constitutional or statutory limits, to the sound discretion of the
trial court. At this time it is necessary only to avoid imposing,
from the level of this Court, arbitrary limitations on the exercise
of this traditional discretion specifically explicated in § 706(g).
There will be cases where, under all of the circumstances, the
economic penalties that would be imposed on innocent incumbent
employees will outweigh the claims of discrimination victims to be
made entirely whole even at the expense of others. Similarly, there
will be cases where the balance properly is struck the other
way.
The Court virtually ignores the only previous judicial
discussion directly in point. The Court of Appeals for the Sixth
Circuit, recently faced with the issue of retroactive
Page 424 U. S. 795
seniority for victims of hiring discrimination, showed a fine
appreciation of the distinction discussed above.
Meadows v.
Ford Motor Co., 510 F.2d 939 (1975),
cert. pending,
No. 74-1349. [
Footnote 2/15] That
court began with the recognition that retroactive competitive-type
seniority presents "greater problems" than a grant of backpay
because the burden falls upon innocent incumbents, rather than the
wrongdoing employer.
Id. at 949. [
Footnote 2/16] The court further recognized that Title
VII contains no prohibition against such relief. Then, noting that
"the remedy for the wrong of discriminatory refusal to hire lies in
the first instance
with the District Judge,"
ibid. (emphasis added), the Court of Appeals for the Sixth
Circuit stated:
"For his guidance on this issue, we observe . . . that a grant
of retroactive seniority would not depend solely upon the existence
of a record sufficient to justify back pay. . . . The court would,
in dealing with job [
i.e., competitive-type] seniority,
need also to consider the interests of the workers who might be
displaced. . . . We do not assume . . . that such reconciliation is
impossible, but, as is obvious, we certainly do foresee genuine
difficulties. . . ."
Ibid. The Sixth Circuit suggested that the District
Court seek
Page 424 U. S. 796
enlightenment on the questions involved in the particular fact
situation, and that it should allow intervention by representatives
of the incumbents who stood to be disadvantaged. [
Footnote 2/17]
In attempted justification of its disregard of the explicit
equitable mandate of § 706(g), the Court today relies almost
exclusively on the practice of the National Labor Relations Board
under § 10(c) of the National Labor Relations Act, 29 U.S.C. §
160(C). [
Footnote 2/18] It is
true
Page 424 U. S. 797
that, in the two instances cited by the Court and in the few
others cited in the briefs of the parties, [
Footnote 2/19] the Board has ordered reinstatement of
victims of discrimination "without prejudice to their seniority or
other rights and privileges." But the alleged precedents are doubly
unconvincing. First, in none of the cases is there a discussion of
equities either by the Board or the enforcing court. That the Board
has granted seniority relief in several cases may indicate nothing
more than the fact that, in the usual case, no one speaks for the
individual incumbents. This is the point recognized by the court in
Meadows, and the impetus for its suggestion that a
representative of their interests be entertained by the district
court before it determines "appropriate" § 706(g) relief.
I also suggest, with all respect, that the Court's appeal to
Board practice wholly misconceives the lesson to be
Page 424 U. S. 798
drawn from it. In the seminal case recognizing the Board's power
to order reinstatement for discriminatory refusals to hire, this
Court, in a reasoned opinion by Mr. Justice Frankfurter, was
careful to emphasize that the decision on the type and extent of
relief rested in the Board's discretion, subject to limited review
only by the courts.
"But in the nature of things, Congress could not catalogue all
the devices and stratagems for circumventing the policies of the
Act. Nor could it define the whole gamut of remedies to effectuate
these policies in an infinite variety of specific situations.
Congress met these difficulties by leaving the adaptation of means
to end to the empiric process of administration. The exercise of
the process was committed to the Board, subject to limited judicial
review. . . ."
"
* * * *"
". . . All these and other factors outside our domain of
experience may come into play. Their relevance is for the Board,
not for us.
In the exercise of its informed discretion, the
Board may find that effectuation of the Act's policies may or may
not require reinstatement. We have no warrant for speculating
on matters of fact the determination of which Congress has
entrusted to the Board. All we are entitled to ask is that the
statute speak through the Board where the statute does not speak
for itself."
Phelps Dodge Corp. v. NLRB, 313 U.
S. 177,
313 U. S.
194-196 (1941) (emphasis added). The fallacy of the
Court's reliance upon Board practice is apparent: the district
courts under Title VII stand in the place of the Board under the
NLRA. Congress entrusted to their discretion the appropriate
remedies for violations of the Act, just as it previously had
entrusted discretion to the Board. The Court today denies that
Page 424 U. S. 799
discretion to the district courts, when, 35 years ago, it was
quite careful to leave discretion where Congress had entrusted it.
It may be that the district courts,after weighing the competing
equities, would order full retroactive seniority in most cases. But
they should do so only after determining in each instance that it
is appropriate, and not because this Court has taken from them the
power -- granted by Congress -- to weigh the equities.
In summary, the decision today denying district courts the power
to balance equities cannot be reconciled with the explicit mandate
of § 706(g) to determine "appropriate" relief through the exercise
of "equitable powers." Accordingly, I would remand this case to the
District Court with instructions to investigate and weigh competing
equities before deciding upon the appropriateness of retroactive
competitive-type seniority with respect to individual claimants.
[
Footnote 2/20]
[
Footnote 2/1]
My terminology conforms to that of the Court,
ante at
424 U. S. 766.
"Benefit"-type seniority refers to the use of a worker's earned
seniority credits in computing his level of economic "fringe
benefits." Examples of such benefits are pensions, paid vacation
time, and unemployment insurance. "Competitive"-type seniority
refers to the use of those same earned credits in determining his
right, relative to other workers, to job-related "rights" that
cannot be supplied equally to any two employees. Examples can range
from the worker's right to keep his job while someone else is laid
off to his right to a place in the punch-out line ahead of another
employee at the end of a workday.
[
Footnote 2/2]
As to the prophylactic purpose, the Court stated:
"It is the reasonably certain prospect of a backpay award that
'provide[s] the spur or catalyst which causes employers and unions
to self-examine and to self-evaluate their employment practices and
to endeavor to eliminate, so far as possible, the last vestiges of
an unfortunate and ignominious page in this country's
history.'"
422 U.S. at
422 U. S.
417-418 (citations omitted). Backpay furthers the "make
whole" purpose of the statute by replacing some of the economic
loss suffered as a result of the employer's wrongdoing.
See
id. at
422 U. S.
418-420.
[
Footnote 2/3]
"Discretion is vested . . . to allow the most complete
achievement of the objectives of Title VII that is attainable under
the facts and circumstances of the specific case. . . .
Accordingly, the District Court's denial of
any form of
seniority remedy must be reviewed in terms of its effect on the
attainment of the Act's objectives under the circumstances
presented by this record."
Ante at
424 U. S.
770-771 (emphasis added).
[
Footnote 2/4]
In an appropriate case, of course, Title VII remedies may be
ordered against a wrongdoing union as well as the employer.
[
Footnote 2/5]
This certainly would be true in this case, as conceded by
counsel for Bowman at oral argument. There the following exchange
took place:
"QUESTION: How is Bowman injured by this action?"
"MR. PATE [Counsel for Bowman]: By seniority? By the grant of
this remedy?"
"QUESTION: Either way."
"MR. PATE: It is not injured either way, and the company, apart
from the general interest of all of us in the importance of the
question, has no specific tangible interest in it in this case as
to whether seniority is granted to this group or not. That is
correct."
Tr. of Oral Arg. 42. In a supplemental memorandum filed after
oral argument, petitioners referred to this statement by Bowman's
counsel and suggested that he apparently was referring to the
competitive aspects of seniority, such as which employees were to
get the best job assignments, since Bowman certainly would be
economically disadvantaged by the benefit-type seniority, such as
seniority-related increases in backpay. I agree that, in the
context Bowman's counsel spoke, he was referring to the company's
lack of a tangible interest in whether or not competitive-type
seniority was granted.
[
Footnote 2/6]
The Court in
Albemarle noted that this primary
objective had been recognized in
Griggs v. Duke Power Co.,
401 U. S. 424
(1971).
See 422 U.S. at
422 U. S. 417;
see also supra at
424 U. S. 783. In
Griggs, the Court found this
objective to be "plain from the language of the statute." 401 U.S.
at
401 U. S. 429.
In creating a presumption in favor of a retroactive grant of
competitive-type seniority, the Court thus exalts the make-whole
purpose not only above fundamental principles of equity, but also
above the primary objective of the statute recently found to be
plain on its face.
[
Footnote 2/7]
Some commentators have suggested that the expectations of
incumbents somehow may be illegitimate because they result from
past discrimination against others. Cooper & Sobol, Seniority
and Testing under Fair Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598,
1605-1606 (1969). Such reasoning is badly flawed. Absent some
showing of collusion, the incumbent employee was not a party to the
discrimination by the employer. Acceptance of the job when offered
hardly makes one an accessory to a discriminatory failure to hire
someone else. Moreover, the incumbent's expectancy does not result
from discrimination against others, but is based on his own efforts
and satisfactory performance.
[
Footnote 2/8]
The Court argues that a retroactive grant of competitive-type
seniority always is equitable, because it "divides the burden" of
past discrimination between incumbents and victims.
Ante
at
424 U. S.
776-777. Aside from its opacity, this argument is flawed
by what seems to be a misperception of the nature of Title VII
relief. Specific relief necessarily focuses upon the individual
victim, not upon some "class" of victims. A grant of full
retroactive seniority to an individual victim of Bowman's
discriminatory hiring practices will place that person exactly
where he would have been had he been hired when he first applied.
The question for a district court should be whether it is equitable
to place that individual in that position despite the impact upon
all incumbents hired after the date of his unsuccessful
application. Any additional effect upon the entire workforce --
incumbents and the newly enfranchised victims alike -- of similar
relief to still earlier victims of the discrimination, raises
distinctly different issues from the equity,
vis-a-vis
incumbents, of granting retroactive seniority to each victim.
[
Footnote 2/9]
Indeed, the 1972 amendment process which produced the
Section-by-Section Analysis containing the statement of the Act's
"make whole" purpose also resulted in an addition to § 706(g)
itself clearly showing congressional recognition that total
restitution to victims of discrimination is not a feasible goal. As
originally enacted, § 706(g) contained simply an authorization to
district courts to order reinstatement with or without backpay,
with no limitation on how much backpay the courts could order. In
1972, however, the Congress added a limitation restricting the
courts to an award to a date two years prior to the filing of a
charge with EEOC. While it is true that Congress at the same time
rejected an even more restrictive limitation,
see Albemarle
Paper Co. v. Moody, 422 U.S. at
422 U. S. 420
n. 13, its adoption of any limitation at all suggests an awareness
that the desire to "make whole" must yield at some point to other
considerations.
[
Footnote 2/10]
Section 703(j), 78 Stat. 257, 42 U.S.C. § 2000e-2(j), reads in
full as follows:
"(j) Nothing contained in this subchapter shall be interpreted
to require any employer, employment agency, labor organization, or
joint labor-management committee subject to this subchapter to
grant preferential treatment to any individual or to any group
because of the race, color, religion, sex, or national origin of
such individual or group on account of an imbalance which may exist
with respect to the total number or percentage of persons of any
race, color, religion, sex, or national origin employed by any
employer, referred or classified for employment by any employment
agency or labor organization, admitted to membership or classified
by any labor organization, or admitted to, or employed in, any
apprenticeship or other training program, in comparison with the
total number or percentage of persons of such race, color,
religion, sex, or national origin in any community, State, section,
or other area, or in the available workforce in any community,
State, section, or other area."
[
Footnote 2/11]
Tr. of Oral Arg. 33.
[
Footnote 2/12]
It is true, of course, that backpay awards and retroactive
grants of benefit-type seniority likewise are based on the same
fiction and the same assumption. In the case of those remedies,
however, no innocent persons are harmed by the use of the fiction,
and any uncertainty about whether the victim of discrimination, in
fact, would have retained the job and earned the benefits is
properly borne by the wrongdoer.
[
Footnote 2/13]
Nor is it suggested that incumbents have "indefeasibly vested
rights" to their seniority status that invariably would foreclose
retroactive seniority. But the cases cited by the Court for that
proposition do not hold, or by analogy imply, that district courts
operating under § 706(g) lack equitable discretion to take into
account the rights of incumbents. In
Tilton v. Missouri Pacific
Co., 376 U. S. 169
(1964), and
Fishgold v. Sullivan Corp., 328 U.
S. 275 (1946), the Court only confirmed an express
congressional determination, presumably made after weighing all
relevant considerations, that, for reasons of public policy,
veterans should receive seniority credit for their time in military
service.
See 376 U.S. at
376 U. S.
174-175. In
Ford Motor Co. v. Huffman,
345 U. S. 330
(1953), the Court affirmed the authority of a collective bargaining
agent, presumably after weighing the relative equities,
see
id. at
345 U. S.
337-339, to advantage certain employees more than
others. All I contend is that, under § 706(g), a district court,
like Congress in
Tilton and
Fishgold and the
bargaining agent in
Huffman, also must be free to weigh
the equities.
[
Footnote 2/14]
The Court,
ante at
424 U. S. 764
n. 21, suggests I am arguing that retroactive competitive-type
seniority should be "less available" as relief than backpay. This
is not my position. All relief not specifically prohibited by the
Act is equally "available" to the district courts. My point is that
equitable considerations can make competitive-type seniority relief
less "appropriate" in a particular situation than backpay or other
relief. Again, the plain language of § 706(g) compels careful
determination of the "appropriateness" of each "available" remedy
in a specific case, and does not permit the inflexible approach
taken by the Court.
[
Footnote 2/15]
From the briefs of the parties, it appears that
Meadows
is one of only three reported appellate decisions dealing with the
question of retroactive seniority relief to victims of
discriminatory hiring practices. In the instant case, of course,
the Court of Appeals for the Fifth Circuit held such relief barred
by § 703(h). In
Jurinko v. Edwin L. Wiegand Co., 477 F.2d
1038,
vacated and remanded on other grounds, 414 U.S. 970
(1973), the Court of Appeals for the Third Circuit ordered the
relief without any discussion of equitable considerations.
[
Footnote 2/16]
The Sixth Circuit noted that no equitable considerations stand
in the way of a district court's granting retroactive benefit-type
seniority. 510 F.2d at 949.
[
Footnote 2/17]
One of the commentators quoted by the Court today has endorsed
the evenhanded approach adopted by the Sixth Circuit:
"In fashioning a remedy, . . . the courts should consciously
assess the costs of relief to
all the parties in the case,
and then tailor the decree to minimize these costs while affording
plaintiffs adequate relief. The best way to do this will no doubt
vary from case to case depending on the facts: the number of
plaintiffs, the number of [incumbents] affected and the
alternatives available to them, the economic circumstances of the
industry."
Poplin, Fair Employment in a Depressed Economy: The Layoff
Problem, 23 U.C.L.A.L.Rev. 177, 202 (1975) (emphasis in original);
see id. at 224. Another commentator has said that judges
who fail to take account of equitable claims of incumbents are
engaging in an "Alice in Wonderland" approach to the problem of
Title VII remedies.
See Rains, Title VII v. Seniority
Based Layoffs: A Question of Who Goes First, 4 Hofstra L.Rev. 49,
53 (1975).
[
Footnote 2/18]
By gathering bits and pieces of the legislative history of the
1972 amendments, the Court attempts to patch together an argument
that full retroactive seniority is a remedy equally "available" as
backpay.
Ante at
424 U. S.
764-765, n. 21. There are two short responses. First, as
emphasized elsewhere,
supra at
424 U. S. 794
n. 14, no one contends that such relief is less
available,
but only that it may be less
equitable in some situations.
Second, insofar as the Court intends the legislative history to
suggest some presumption in favor of this relief, it is irrefutably
blocked by the plain language of § 706(g) calling for the exercise
of
equitable discretion in the fashioning of
appropriate relief. There are other responses. As to the
committee citations of lower court decisions and the Conference
Report Analysis reference to "present case law," it need only be
noted that, as of the 1972 amendments, no appellate court had
considered a case involving retroactive seniority relief to victims
of discriminatory hiring practices. Moreover, the cases were cited
only in the context of a general discussion of the complexities of
employment discrimination, never for their adoption of a "rightful
place" theory of relief. And, by the terms of the Conference Report
Analysis itself, the existing case law could not take precedence
over the explicit language of § 706(g), added by the amendments,
that told courts to exercise
equitable discretion in
granting
appropriate relief.
Moreover, I find no basis for the Court's statement that the
Committee Reports indicated "rightful place" to be the objective of
Title VII relief. In fact, in both instances cited by the Court,
the term was used in the context of a general comment that
minorities were still "far from reaching their rightful place in
society." S.Rep. No. 92-416, p. 6 (1971). There was no reference to
the scope of relief under § 706(g), or indeed even to Title VII
remedies at all.
[
Footnote 2/19]
The respondent Steelworkers cited seven Board decisions in
addition to those mentioned in the Court's opinion. Brief for
Respondent United Steelworkers of America, AFL-CIO, and for
American Federation of Labor and Congress of Industrial
Organizations as
Amicus Curiae, 27 n. 31.
[
Footnote 2/20]
This is not to suggest that district courts should be left to
exercise a standardless, unreviewable discretion. But in the area
of competitive-type seniority, unlike backpay and benefit-type
seniority, the twin purposes of Title VII do not provide the
standards. District courts must be guided in each instance by the
mandate of § 706(g). They should, of course, record the
considerations upon which they rely in granting or refusing relief,
so that appellate review could be informed and precedents
established in the area.
In this case, for example, factors that could be considered on
remand, and that could weigh in favor of full retroactive
seniority, include Bowman's high employee turnover rate and the
asserted fact that few victims of Bowman's discrimination have
indicated a desire to be hired. Other factors, not fully developed
in the record, also could require consideration in determining the
balance of the equities. I would imply no opinion on the merits,
and would remand for full consideration in light of the views
herein expressed.