Where respondent female flight attendant failed to file a timely
claim against petitioner airline for violation of Title VII of the
Civil Rights Act of 1964 when her employment was terminated in 1968
pursuant to a later invalidated policy because she got married,
petitioner
held not to commit a present, continuing
violation of Title VII by refusing to credit respondent, after
rehiring her in 1972, with pre-1972 seniority, absent any
allegation that petitioner's seniority system, which is neutral in
its operation, discriminates against former female employees or
victims of past discrimination.
Franks v. Bowman Transportation
Co., 424 U. S. 747,
distinguished. Moreover, § 703(h) of Title VII, which provides that
it shall not be an unlawful employment practice to apply different
terms of employment pursuant to a
bona fide seniority
system if any disparity is not the result of intentional
discrimination, bars respondent's claim, absent any attack on the
bona fides of petitioner's seniority system or of any
charge that the system is intentionally designed to discriminate
because of race, color, religion, sex, or national origin. Pp.
431 U. S.
557-560.
534 F.2d 1247, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined,
post p.
431 U. S.
560.
Page 431 U. S. 554
MR. JUSTICE STEVENS delivered the opinion of the Court.
Respondent was employed by United Air Lines as a flight
attendant from November, 1966, to February, 1968. She was rehired
in February, 1972. Assuming, as she alleges, that her separation
from employment in 1968 violated Title VII of the Civil Rights Act
of 1964, [
Footnote 1] the
question now presented is whether the employer is committing a
second violation of Title VII by refusing to credit her with
seniority for any period prior to February, 1972.
Respondent filed charges with the Equal Employment Opportunity
Commission in February, 1973, alleging that United discriminated
and continues to discriminate against her because she is a female.
After receiving a letter granting her the right to sue, she
commenced this action in the United States District Court for the
Northern District of Illinois. Because the District Court dismissed
her complaint, the facts which she has alleged are taken as true.
They may be simply stated.
During respondent's initial period of employment, United
maintained a policy of refusing to allow its female flight
attendants to be married. [
Footnote
2] When she married in 1968, she was therefore forced to
resign. Although it was subsequently decided that such a
resignation violated Title VII,
Sprogis v. United Air
Lines, 444 F.2d 1194 (CA7 1971),
cert. denied, 404
U.S. 991, respondent was not a party to that case, and did not
Page 431 U. S. 555
initiate any proceedings of her own in 1968 by filing a charge
with the EEOC within 90 days of her separation. [
Footnote 3] A claim based on that
discriminatory act is therefore barred. [
Footnote 4]
In November, 1968, United entered into a new collective
bargaining agreement which ended the preexisting "no marriage" rule
and provided for the reinstatement of certain flight attendants who
had been terminated pursuant to that rule. Respondent was not
covered by that agreement. On several occasions she unsuccessfully
sought reinstatement; on February 16, 1972, she was hired as a new
employee. Although her personnel file carried the same number as it
did in 1968, for seniority purposes she has been treated as though
she had no prior service with United. [
Footnote 5] She has not alleged that any other rehired
employees were given credit for prior service with United, or that
United's administration of the seniority system has violated the
collective bargaining agreement covering her employment. [
Footnote 6]
Page 431 U. S. 556
Informal requests to credit her with pre-1972 seniority having
been denied, respondent commenced this action. [
Footnote 7] The District Court dismissed the
complaint, holding that the failure to file a charge within 90 days
of her separation in 1968 caused respondent's claim to be
time-barred, and foreclosed any relief under Title VII. [
Footnote 8]
A divided panel of the Court of Appeals initially affirmed;
then, after our decision in
Franks v. Bowman Transportation
Co., 424 U. S. 747, the
panel granted respondent's petition for
Page 431 U. S. 557
rehearing and unanimously reversed. 534 F.2d 1247 (CA7 1976). We
granted certiorari, 429 U.S. 917, and now hold that the complaint
was properly dismissed.
Respondent recognizes that it is now too late to obtain relief
based on an unlawful employment practice which occurred in 1968.
She contends, however, that United is guilty of a present,
continuing violation of Title VII, and therefore that her claim is
timely. [
Footnote 9] She
advances two reasons for holding that United's seniority system
illegally discriminates against her: first, she is treated less
favorably than males who were hired after her termination in 1968
and prior to her reemployment in 1972; second, the seniority system
gives present effect to the past illegal act and therefore
perpetuates the consequences of forbidden discrimination. Neither
argument persuades us that United is presently violating the
statute.
It is true that some male employees with less total service than
respondent have more seniority than she. But this disparity is not
a consequence of their sex, or of her sex. For females hired
between 1968 and 1972 also acquired the same preference over
respondent as males hired during that period. Moreover, both male
and female employees who had service prior to February, 1968, who
resigned or were terminated for a nondiscriminatory reason (or for
an unchallenged discriminatory reason), and who were later
reemployed, also were treated as new employees receiving no
seniority credit for their prior service. Nothing alleged in the
complaint indicates that United's seniority system treats existing
female employees differently from existing male employees, or that
the failure to
Page 431 U. S. 558
credit prior service differentiates in any way between prior
service by males and prior service by females. Respondent has
failed to allege that United's seniority system differentiates
between similarly situated males and females on the basis of
sex.
Respondent is correct in pointing out that the seniority system
gives present effect to a past act of discrimination. But United
was entitled to treat that past act as lawful after respondent
failed to file a charge of discrimination within the 90 days then
allowed by § 706(d). A discriminatory act which is not made the
basis for a timely charge is the legal equivalent of a
discriminatory act which occurred before the statute was passed. It
may constitute relevant background evidence in a proceeding in
which the status of a current practice is at issue, but separately
considered, it is merely an unfortunate event in history which has
no present legal consequences.
Respondent emphasizes the fact that she has alleged a
continuing violation. United's seniority system does
indeed have a continuing impact on her pay and fringe benefits. But
the emphasis should not be placed on mere continuity; the critical
question is whether any present
violation exists. She has
not alleged that the system discriminates against former female
employees or that it treats former employees who were discharged
for a discriminatory reason any differently from former employees
who resigned or were discharged for a nondiscriminatory reason. In
short, the system is neutral in its operation. [
Footnote 10]
Our decision in
Franks v. Bowman Transportation Co.,
supra, does not control this case. In
Franks we held
that retroactive seniority was an appropriate remedy to be awarded
under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) (1970
Page 431 U. S. 559
ed., Supp. V), after an illegal discriminatory act or practice
had been proved, 424 U.S. at
424 U. S.
762-768. When that case reached this Court, the issues
relating to the timeliness of the charge [
Footnote 11] and the violation of Title VII [
Footnote 12] had already been
decided; we dealt only with a question of remedy. In contrast, in
the case now before us we do not reach any remedy issue because
respondent did not file a timely charge based on her 1968
separation and she has not alleged facts establishing a violation
since she was rehired in 1972. [
Footnote 13]
The difference between a remedy issue and a violation issue is
highlighted by the analysis of § 703(h) of Title VII in Franks.
[
Footnote 14] As we held in
that case, by its terms, that section does not bar the award of
retroactive seniority after a violation has been proved. Rather, §
703(h) "delineates which employment practices are illegal and
thereby prohibited, and which are not," 424 U.S. at
424 U. S.
758.
That section expressly provides that it shall not be an unlawful
employment practice to apply different terms of employment
Page 431 U. S. 560
pursuant to a
bona fide seniority system, provided that
any disparity is not the result of intentional discrimination.
Since respondent does not attack the
bona fides of
United's seniority system, and since she makes no charge that the
system is intentionally designed to discriminate because of race,
color, religion, sex, or national origin, § 703(h) provides an
additional ground for rejecting her claim.
The Court of Appeals read § 703(h) as intended to bar an attack
on a seniority system based on the consequences of discriminatory
acts which occurred prior to the effective date of Title VII in
1965, [
Footnote 15] but
having no application to such attacks based on acts occurring after
1965. This reading of § 703(h) is too narrow. The statute does not
foreclose attacks on the current operation of seniority systems
which are subject to challenge as discriminatory. But such a
challenge to a neutral system may not be predicated on the mere
fact that a past event which has no present legal significance has
affected the calculation of seniority credit, even if the past
event might at one time have justified a valid claim against the
employer. A contrary view would substitute a claim for seniority
credit for almost every claim which is barred by limitations. Such
a result would contravene the mandate of § 703(h).
The judgment of the Court of Appeals is reversed.
It is so ordered.
[
Footnote 1]
78 Stat. 253. Title VII, as amended, is codified in 42 U.S.C. §
2000e
et seq. (1970 ed. and Supp. V).
[
Footnote 2]
At that time United required that all flight attendants be
female, except on flights between the mainland and Hawaii and on
overseas military charter flights.
See Sprogis v. United Air
Lines, 444 F.2d 1194, 1203 (CA7 1971) (Stevens, J.,
dissenting),
cert. denied, 404 U.S. 991.
[
Footnote 3]
Section 706(d), 78 Stat. 260, 42 U.S.C. § 2000e-5(d), then
provided in part:
"A charge under subsection (a) shall be filed within ninety days
after the alleged unlawful employment practice occurred. . . ."
The 1972 amendments to Title VII added a new subsection (a) to §
706. Consequently, subsection (d) was redesignated as subsection
(e). At the same time, it was amended to enlarge the limitations
period to 180 days.
See 86 Stat. 105, 42 U.S.C. §
2000e-5(e) (1970 ed., Supp. V).
[
Footnote 4]
Timely filing is a prerequisite to the maintenance of a Title
VII action.
Alexander v. Gardner-Denver Co., 415 U. S.
36,
415 U. S. 47.
See Electrical Workers v. Robbins & Myers, Inc.,
429 U. S. 229,
429 U. S.
239-240.
[
Footnote 5]
Respondent is carried on two seniority rolls. Her "company" or
"system" seniority dates from the day she was rehired, February 16,
1972. Her "stewardess" or "pay" seniority dates from the day she
completed her flight attendant training, March 16, 1972. One or
both types of seniority determine a flight attendant's wages; the
duration and timing of vacations; rights to retention in the event
of layoffs and rights to reemployment thereafter; and rights to
preferential selection of flight assignments. App. 5-6, 10.
[
Footnote 6]
Under the provisions of the collective bargaining agreement
between United and the Air Line Stewardesses and Flight Stewards as
represented by the Air Line Pilots Association International for
the period 1972-1974, seniority is irrevocably lost or broken after
the separation from employment of a flight attendant "who resigns
or whose services with the Company are permanently severed for just
cause." Brief for Respondent 6.
[
Footnote 7]
The relief requested in respondent's complaint included an award
of seniority to the starting date of her initial employment with
United, and backpay "lost as a result of the discriminatory
employment practices of [United]." App. 8. In her brief in this
Court, respondent states that she seeks backpay only since her date
of rehiring, February 16, 1972, which would consist of the
increment in pay and benefits attributable to her lower seniority
since that time. Brief for Respondent 4.
[
Footnote 8]
The District Court recited that the motion was filed pursuant to
Fed.Rule Civ.Proc. 12(b)(1) and dismissed the complaint on the
ground that it had no jurisdiction of a time-barred claim. The
District Court also held, however, that the complaint did not
allege any continuing violation. For that reason, the complaint was
ripe for dismissal under Rule 12(b)(6). The District Court
stated:
"Plaintiff asserts that by defendant's denial of her seniority
back to the starting date of her original employment in 1966,
United is currently perpetuating the effect of past
discrimination."
"Plaintiff, however, has not been suffering from any
'continuing' violation. She is seeking to have this court merely
reinstate her November, 1966, seniority date which was lost solely
by reason of her February, 1968, resignation. The fact that that
resignation was the result of an unlawful employment practice is
irrelevant for purposes of these proceedings because plaintiff lost
her opportunity to redress that grievance when she failed to file a
charge within ninety days of February, 1968. United's subsequent
employment of plaintiff in 1972 cannot operate to resuscitate such
a time-barred claim."
App. 18.
[
Footnote 9]
Respondent cannot rely for jurisdiction on the single act of
failing to assign her seniority credit for her prior service at the
time she was rehired, for she filed her discrimination charge with
the Equal Employment Opportunity Commission on February 21, 1973,
more than one year after she was rehired on February 16, 1972. The
applicable time limit in February, 1972, was 90 days; effective
March 24, 1972, this time was extended to 180 days,
see
n 3,
supra.
[
Footnote 10]
This case does not involve any claim by respondent that United's
seniority system deterred her from asserting any right granted by
Title VII. It does not present the question raised in the so-called
departmental seniority cases.
See, e.g., Quarles v. Philip
Morris, Inc., 279 F.
Supp. 505 (ED Va.1968).
[
Footnote 11]
The Court of Appeals had disposed of the timeliness issues in
Franks, 495 F.2d 398, 405 (CA5 1974).
[
Footnote 12]
This finding of the District Court was unchallenged in the Court
of Appeals,
id. at 402, 403, and was assumed in this
Court, 424 U.S. at
424 U. S.
750.
In any event we noted in
Franks:
"The underlying legal wrong affecting [the class] is not the
alleged operation of a racially discriminatory seniority system,
but of a racially discriminatory hiring system."
Id. at 758.
[
Footnote 13]
At the time she was rehired in 1972, respondent had no greater
right to a job than any other applicant for employment with United.
Since she was, in fact, treated like any other applicant when she
was rehired, the employer did not violate Title VII in 1972. And if
the employer did not violate Title VII in 1972 by refusing to
credit respondent with back seniority, its continued adherence to
that policy cannot be illegal.
[
Footnote 14]
Section 703(h), 78 Stat. 257, 42 U.S.C. § 2000e-2(h),
provides:
"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. . . ."
[
Footnote 15]
534 F.2d at 1251.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
But for her sex, respondent Carolyn Evans presently would enjoy
all of the seniority rights that she seeks through this litigation.
Petitioner United Air Lines has denied her those rights pursuant to
a policy that perpetuates.past discrimination by awarding the
choicest jobs to those possessing a
Page 431 U. S. 561
credential married women were unlawfully prevented from
acquiring: continuous tenure with United. While the complaint
respondent filed in the District Court was perhaps inartfully
drawn, [
Footnote 2/1] it adequately
draws into question this policy of United's.
For the reasons stated in the Court's opinion and in my separate
opinion in
Teamsters v. United States, ante at
431 U. S. 378,
I think it indisputable that, absent § 703(h), the seniority system
at issue here would constitute an "unlawful employment practice"
under Title VII, 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V). And
for the reasons developed at length in my separate opinion in
Teamsters, ante at
431 U. S.
381-394, I believe § 703(h) does not immunize seniority
systems that perpetuate post-Act discrimination.
The only remaining question is whether Ms. Evans' complaint is
barred by the applicable statute of limitations, 42 U.S.C. §
2000e-5(e) (1970 ed., Supp. V). Her cause of action accrued, if at
all, at the time her seniority was recomputed after she was
rehired. Although she apparently failed to file a charge with the
EEOC within 180 days after her seniority was determined, Title VII
recognizes that certain violations, once commenced, are continuing
in nature. In these instances, discriminatees can file charges at
any time up to 180 days after the violation ceases. (They can,
however, receive backpay only for the two years preceding the
filing of charges with the Equal Employment Opportunity Commission.
42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V).) In
Page 431 U. S. 562
the instant case, the violation -- treating respondent as a new
employee even though she was wrongfully forced to resign -- is
continuing to this day. Respondent's charge therefore was not
time-barred, and the Court of Appeals judgment reinstating her
complaint should be affirmed. [
Footnote
2/2]
[
Footnote 2/1]
Although the District Court dismissed respondent's complaint for
lack of jurisdiction pursuant to Fed.Rule Civ.Proc. 12(b)(1), the
basis for its ruling was that the complaint was time-barred. Thus,
the dismissal closely resembles a dismissal for failure to state a
claim upon which relief can be granted, and the only issue before
us is whether "it appears beyond doubt that the plaintiff can prove
no set of facts in support of [her] claim which would entitle [her]
to relief."
Conley v. Gibson, 355 U. S.
41,
355 U. S. 45-46
(1957).
[
Footnote 2/2]
It is, of course, true that, to establish her entitlement to
relief, respondent will have to prove that she was unlawfully
forced to resign more than 180 days prior to filing her charge with
the EEOC. But if that is sufficient to defeat her claim, then
discriminatees will never be able to challenge "practices,
procedures, or tests . . . [which] operate to
freeze' the
status quo of prior discriminatory employment practices,"
Griggs v. Duke Power Co., 401 U.
S. 424, 401 U. S. 430
(1971), even though Griggs holds that such practices are
impermissible, and the legislative history of the Equal Employment
Opportunity Act of 1972, 86 Stat. 103, indicates that Congress
agrees, see Teamsters v. United States, ante at
431 U. S.
391-393 (MARSHALL, J., concurring in part and dissenting
in part). The consequence of Ms. Evans' failure to file charges
after she was discharged is that she has lost her right to backpay,
not her right to challenge present wrongs.