As an exception to the rule making it unlawful for an employer
to engage in practices, procedures, or tests that operate to
"freeze" the
status quo of prior discriminatory employment
practices, § 703 (h) of Title VII of the Civil Rights Act of 1964
provides that it shall not be an unlawful employment practice for
an employer to apply different standards of compensation, terms,
conditions, or privileges of employment pursuant to a bona fide
seniority system if such differences are not the result of an
intention to discriminate because of race. A multiemployer brewery
industry collective bargaining agreement accorded greater benefits,
with respect to hiring and layoffs, to "permanent" than to
"temporary" employees, and provided that a temporary employee must
work at least 45 weeks in a single calendar year before he can
become a permanent employee. Respondent Bryant (hereafter
respondent), a Negro, brought a class action in District Court
against petitioner association, petitioner employers, and several
labor unions, alleging,
inter alia, that the defendants
had discriminated against him and other Negroes in violation of
Title VII, and, in particular, that the agreement's 45-week
requirement had operated to preclude him and the members of his
class from achieving, or from a reasonable opportunity of
achieving, permanent employee status. The District Court dismissed
the complaint for failure to state a claim on which relief could be
granted. The Court of Appeals reversed, holding that the 45-week
requirement was not a "seniority system" or part of a "seniority
system" within the meaning of § 703(h), and accordingly remanded
the case to the District Court to enable respondent to prove that
such requirement has had a discriminatory impact on Negroes.
Held: The Court of Appeals erred in holding that the
45-week requirement is not a component of a "seniority system"
within the meaning of § 703(h). The fact that the system created by
the agreement establishes two parallel seniority ladders, one
allocating benefits due temporary employees and the other
identifying the benefits owed permanent employees, does not prevent
it from being a "seniority system" within the meaning of § 703(h).
The 45-week requirement, correspondingly, serves the needed
function of establishing the threshold requirement for entry into
the permanent employee seniority track.
Cf. 431 U.
S.
Page 444 U. S. 599
United States, 431 U. S. 324.
Unlike such criteria as educational standards, aptitude or physical
tests, or standards that give effect to subjectivity, but like any
"seniority" rule, the 45-week requirement focuses on length of
employment. Moreover, the requirement does not distort the
operation of the basic system established by the agreement, which
rewards employment longevity with heightened benefits, since, as a
general rule, the more seniority a temporary employee accumulates,
the more likely it is that he will be able to satisfy the 45-week
requirement. Pp.
444 U. S.
605-611.
585 F.2d 421, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ.,
joined,
post, p.
444 U. S. 611.
POWELL and STEVENS, JJ., took no part in the consideration or
decision of the case.
Page 444 U. S. 600
MR. JUSTICE STEWART delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 [
Footnote 1] makes unlawful, practices, procedures,
or tests that "operate to
freeze' the status quo of
prior discriminatory employment practices." Griggs v. Duke
Power Co., 401 U. S. 424,
401 U. S. 430.
To this rule, § 703(h) of the Act, 42 U.S.C. § 2000e-2(h), provides
an exception:
"[I]t 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 . . . system, . . . provided that such differences
are not the result of an intention to discriminate because of race.
. . ."
In
Teamsters v. United States, 431 U.
S. 324,
431 U. S. 352,
the Court held that
"the unmistakable purpose of § 703(h) was to make clear that the
routine application of a bona fide seniority system would not be
unlawful under Title VII . . . even where the employer's pre-Act
discrimination resulted in whites having greater existing seniority
rights than Negroes. [
Footnote
2]"
The present case concerns the application of § 703(h) to a
particular clause in a California brewery industry collective
bargaining agreement. That agreement accords greater benefits to
"permanent" than to "temporary" employees, and the
Page 444 U. S. 601
clause in question provides that a temporary employee must work
at least 45 weeks in a single calendar year before he can become a
permanent employee. The Court of Appeals for the Ninth Circuit held
that the 45-week requirement was not a "seniority system" or part
of a "seniority system" within the meaning of § 703(h). 585 F.2d
421. We granted certiorari to consider the important question
presented under Title VII of the Civil Rights Act of 1964. 442 U.S.
916.
I
In 1973, respondent Bryant (hereafter respondent), a Negro,
filed a complaint in the United States District Court for the
Northern District of California, on behalf of himself and other
similarly situated Negroes, against the California Brewers
Association and seven brewing companies (petitioners here), as well
as against several unions. The complaint alleged that the
defendants had discriminated against the respondent and other
Negroes in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e
et seq., and in violation of 42 U.S.C. §
1981. [
Footnote 3]
The complaint, as amended, alleged that the respondent had been
intermittently employed since May, 1968, as a temporary employee of
one of the defendants, the Falstaff Brewing Corp. It charged that
all the defendant employers had discriminated in the past against
Negroes, that the unions had acted in concert with the employers in
such discrimination, and that the unions had discriminated in
referring applicants from hiring halls to the employers. The
complaint further asserted that this historical discrimination was
being perpetuated by the seniority and referral provisions of the
collective bargaining agreement (Agreement) that governed
Page 444 U. S. 602
industrial relations at the plants of the seven defendant
employers. In particular, the complaint alleged, the Agreement's
requirement that a temporary employee work 45 weeks in the industry
in a single calendar year to reach permanent status had, as a
practical matter, operated to preclude the respondent and the
members of his putative class from achieving, or from a reasonable
opportunity of achieving, permanent employee status. [
Footnote 4] Finally, the complaint alleged
that, on at least one occasion, one of the defendant unions had
passed over the respondent in favor of more junior white workers in
making referrals to job vacancies at a plant of one of the
defendant employers.
The Agreement is a multiemployer collective bargaining agreement
negotiated more than 20 years ago, and thereafter updated, by the
California Brewers Association (on behalf of the petitioner brewing
companies) and the Teamsters Brewery and Soft Drink Workers Joint
Board of California (on behalf of the defendant unions). The
agreement establishes several classes of employees and the
respective rights of each with respect to hiring and layoffs. Three
of these classes are pertinent here: "permanent," "temporary," and
"new" employees.
A permanent employee is
"any employee . . . who . . . has completeed forty-five weeks of
employment under this Agreement in one classification [
Footnote 5] in one calendar year as an
employee of the brewing industry in [the State of California]."
An employee who acquires permanent status retains
Page 444 U. S. 603
that status unless he "is not employed under this Agreement for
any consecutive period of two (2) years. . . ." [
Footnote 6] A temporary employee under the
Agreement is
"any person other than a permanent employee . . . who worked
under this agreement . . . in the preceding calendar year for at
least sixty (60) working days. . . ."
A new employee is any employee who is not a permanent or
temporary employee.
The rights of employees with respect to hiring and layoffs
depend in substantial part on their status as permanent, temporary,
or new employees. [
Footnote 7]
The Agreement requires that employees at a particular plant be laid
off in the following order: new employees in reverse order of their
seniority at the plant, temporary employees in reverse order of
their plant seniority, and then permanent employees in reverse
order of their plant seniority. Once laid off, employees are to be
rehired in the reverse order from which they were laid off.
The Agreement also gives permanent employees special "bumping"
rights. If a permanent employee is laid off at any plant subject to
the Agreement, he may be dispatched by the union hiring hall to any
other plant in the same local area with the right to replace the
temporary or new employee with the lowest plant seniority at that
plant.
Finally, the Agreement provides that each employer shall obtain
employees through the local union hiring hall to fill needed
vacancies. The hiring hall must dispatch laid-off workers to such
an employer in the following order: first, employees of that
employer in the order of their seniority with that employer;
second, permanent employees registered in the area in order of
their industry seniority; third, temporary employees in the order
of their seniority in the industry; and
Page 444 U. S. 604
fourth, new employees in the order of their industry seniority.
The employer then "shall have full right of selection among" such
employees.
The District Court granted the defendants' motions to dismiss
the complaint for failure to state a claim on which relief could be
granted. No opinion accompanied this order. A divided panel of the
Court of Appeals reversed, 585 F.2d 421, concluding that the
45-week rule is not a "seniority system" or part of a "seniority
system" within the meaning of § 703(h) of Title VII. In the
appellate court's view, the provision "lacks the fundamental
component of such a system," which is "the concept that employment
rights should increase as the length of an employee's service
increases." 585 F.2d at 426. The court pointed out that, under the
Agreement, some employees in the industry could acquire permanent
status after a total of only 45 weeks of work if those weeks were
served in one calendar year, while others
"could work for many years and never attain permanent status,
because they were always terminated a few days before completing 45
weeks of work in any one year."
Id. at 426-427.
The Court of Appeals concluded that, "while the collective
bargaining agreement does contain a seniority system, the 45-week
provision is not a part of it."
Id. at 427:
"The 45-week rule is simply a classification device to determine
who enters the permanent employee seniority line, and this function
does not make the rule part of a seniority system. Otherwise, any
hiring policy (
e.g., an academic degree requirement) or
classification device (
e.g., merit promotion) would become
part of a seniority system merely because it affects who enters the
seniority line."
Id. at 427, n. 11. [
Footnote 8]
Page 444 U. S. 605
Accordingly, the Court of Appeals remanded the case to the
District Court to enable the respondent to prove that the 45-week
provision has had a discriminatory impact on Negroes under the
standards enunciated in
Griggs v. Duke Power Co.,
401 U. S. 424. 585
F.2d at 427-428. [
Footnote
9]
II
Title VII does not define the term "seniority system," and no
comprehensive definition of the phrase emerges from the legislative
history of § 703(h). [
Footnote
10] Moreover, our cases have not purported to delineate the
contours of its meaning. [
Footnote 11] It is appropriate, therefore, to begin with
commonly accepted notions about "seniority" in industrial
relations, and to consider those concepts in the context of Title
VII and this country's labor policy.
In the area of labor relations, "seniority" is a term that
connotes length of employment. [
Footnote 12] A "seniority system" is a
Page 444 U. S. 606
scheme that, alone or in tandem with non-"seniority" criteria,
[
Footnote 13] allots to
employees ever improving employment rights and benefits as their
relative lengths of pertinent employment increase. [
Footnote 14] Unlike other methods of
allocating employment benefits and opportunities, such as
subjective evaluations or educational requirements, the principal
feature of any and every "seniority system" is that preferential
treatment is dispensed on the basis of some measure of time served
in employment.
Viewed as a whole, most of the relevant provisions of the
Agreement before us in this case conform to these core concepts of
"seniority." Rights of temporary employees and rights of permanent
employees are determined according to length of plant employment in
some respects, and according to length of industry employment in
other respects. Notwithstanding this fact, the Court of Appeals
concluded that the 45-week rule should not be viewed, for purposes
of § 703(h), as part of what might otherwise be considered a
"seniority system." For the reasons that follow, we hold that this
conclusion was incorrect.
First, by legislating with respect to "systems" [
Footnote 15] of seniority
Page 444 U. S. 607
in § 703(h), Congress in 1964 quite evidently intended to exempt
from the normal operation of Title VII more than simply those
components of any particular seniority scheme that, viewed in
isolation, embody or effectuate the principle that length of
employment will be rewarded. In order for any seniority system to
operate at all, it has to contain ancillary rules that accomplish
certain necessary functions, but which may not themselves be
directly related to length of employment. [
Footnote 16] For instance, every seniority
system must include rules that delineate how and when the seniority
timeclock begins ticking, [
Footnote 17] as well as rules that specify how and when a
particular person's seniority may be forfeited. [
Footnote 18] Every seniority system must
also have rules that define which passages of time will "count"
towards the accrual of seniority and which will not. [
Footnote 19] Every seniority system
must, moreover, contain rules that particularize the types of
employment conditions that will be governed or influenced by
seniority, and those that will not. [
Footnote 20] Rules that serve these necessary
purposes
Page 444 U. S. 608
do not fall outside § 703(h) simply because they do not, in and
of themselves, operate on the basis of some factor involving the
passage of time. [
Footnote
21]
Second, Congress passed the Civil Rights Act of 1964 against the
backdrop of this Nation's longstanding labor policy of leaving to
the chosen representatives of employers and employees the freedom
through collective bargaining to establish conditions of employment
applicable to a particular business or industrial environment.
See generally Steelworkers v. Weber, 443 U.
S. 193. It does not behoove a court to second-guess
either that process or its products.
Porter Co. v. NLRB,
397 U. S. 99.
Seniority systems, reflecting as they do not only the give and take
of free collective bargaining, but also the specific
characteristics of a particular business or industry, inevitably
come in all sizes and shapes.
See Ford Motor Co. v.
Huffman, 345 U. S. 330;
Aeronautical Lodge v. Campbell, 337 U.
S. 521. As we made clear in the
Teamsters case,
seniority may be "measured in a number of ways" and the legislative
history of § 703(h) does not suggest that it was enacted to prefer
any particular variety of seniority system over any other. 431 U.S.
at
431 U. S. 355,
n. 41.
What has been said does not mean that § 703(h) is to be given a
scope that risks swallowing up Title VII's otherwise broad
prohibition of "practices, procedures, or tests" that
disproportionately affect members of those groups that the Act
protects. Significant freedom must be afforded employers and unions
to create differing seniority systems. But that freedom must not be
allowed to sweep within the ambit of § 703(h) employment rules that
depart fundamentally from commonly accepted notions concerning the
acceptable contours of a seniority system simply because those
rules are dubbed "seniority" provisions or have some nexus to an
arrangement that concededly operates on the basis of seniority.
Page 444 U. S. 609
There can be no doubt, for instance, that a threshold
requirement for entering a seniority track that took the form of an
educational prerequisite would not be part of a "seniority system"
within the intendment of § 703(h).
The application of these principles to the case at hand is
straightforward. The Agreement sets out, in relevant part, two
parallel seniority ladders. One allocates the benefits due
temporary employees; the other identifies the benefits owed
permanent employees. The propriety under § 703(h) of such parallel
seniority tracks cannot be doubted after the Court's decision in
the
Teamsters case. The collective bargaining agreement at
issue there allotted one set of benefits according to each
employee's total service with the company, and another set
according to each employee's service in a particular job category.
Just as in that case the separation of seniority tracks did not
derogate from the identification of the provisions as a "seniority
system" under § 703(h), so in the present case the fact that the
system created by the Agreement establishes two or more seniority
ladders does not prevent it from being a "seniority system" within
the meaning of that section.
The 45-week rule, correspondingly, serves the needed function of
establishing the threshold requirement for entry into the permanent
employee seniority track. As such, it performs the same function as
did the employment rule in
Teamsters that provided that a
line driver began to accrue seniority for certain purposes only
when he started to work as a line driver, even though he had
previously spent years as a city driver for the same employer. In
Teamsters, the Court expressed no reservation about the
propriety of such a threshold rule for § 703(h) purposes. There is
no reason why the 45-week threshold requirement at issue here
should be considered any differently.
The 45-week rule does not depart significantly from commonly
accepted concepts of "seniority." The rule is not an educational
standard, an aptitude or physical test, or a standard
Page 444 U. S. 610
that gives effect to subjectivity. Unlike such criteria, but
like any "seniority" rule, the 45-week requirement focuses on
length of employment.
Moreover, the rule does not distort the operation of the basic
system established by the Agreement, which rewards employment
longevity with heightened benefits. A temporary employee's chances
of achieving permanent status increase inevitably as his industry
employment and seniority accumulate. The temporary employees with
the most industry seniority have the first choice of new jobs
within the industry available for temporary employees. Similarly,
the temporary employees with the most plant seniority have the
first choice of temporary employee jobs within their plant, and
enjoy the greatest security against "bumping" by permanent
employees from nearby plants. As a general rule, therefore, the
more seniority a temporary employee accumulates, the more likely it
is that he will be able to satisfy the 45-week requirement. That
the correlation between accumulated industry employment and
acquisition of permanent employee status is imperfect does not mean
that the 45-week requirement is not a component of the Agreement's
seniority system. Under any seniority system, contingencies such as
illnesses and layoffs may interrupt the accrual of seniority and
delay realization of the advantages dependent upon it. [
Footnote 22]
For these reasons, we conclude that the Court of Appeals was in
error in holding that the 45-week rule is not a component of a
"seniority system" within the meaning of § 703(h) of Title VII of
the Civil Rights Act of 1964. In the District Court, the respondent
will remain free to show that, in respect to the 45-week rule or in
other respects, the seniority
Page 444 U. S. 611
system established by the Agreement is not "bona fide," or that
the differences in employment conditions that it has produced are
"the result of an intention to discriminate because of race."
For the reasons stated, the judgment before us is vacated, and
the case is remanded to the Court of Appeals for the Ninth Circuit
for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL and MR. JUSTICE STEVENS took no part in the
consideration or decision of this case.
[
Footnote 1]
78 Stat. 253, as amended, 42 U.S.C. § 2000e
et seq.
[
Footnote 2]
United Air Lines, Inc. v. Evans, 431 U.
S. 553, extended this holding to preclude Title VII
challenges to seniority systems that perpetuated the effects of
discriminatory post-Act practices that had not been the subject of
a timely complaint.
See also Teamsters v. United States,
431 U.S. at
431 U. S. 348,
n. 30.
[
Footnote 3]
The complaint also alleged, under 29 U.S.C. §§ 159 and 185, that
the union defendants had breached their duty of fair representation
by, among other things, negotiating "unreasonable privileges for
some employees over others. . . ."
[
Footnote 4]
In this Court, the respondent emphasizes that he has not
contended that there is anything illegal in classifying employees
as permanent and temporary or in according greater rights to
permanent than to temporary employees. His sole Title VII challenge
in this respect has been to the 45-week rule on its face and as it
has been applied by the defendant union and employers.
[
Footnote 5]
The Agreement classifies employees into brewers, bottlers,
drivers, shipping and receiving clerks, and checkers. Under the
Agreement, separate seniority lists have to be maintained for each
of these classifications of employees. The respondent is a
brewer.
[
Footnote 6]
An employee may also lose permanent status if he "quits the
industry" or is discharged for certain specified reasons.
[
Footnote 7]
In addition, permanent employees are given preference over
temporary employees with respect to various other employment
matters such as the right to collect supplemental unemployment
benefits upon layoff, wages and vacation pay, and choice of
vacation times.
[
Footnote 8]
The Court of Appeals also observed that
"the 45-week requirement makes the system particularly
susceptible to discriminatory application, since employers and
unions can manipulate their manpower requirements and employment
patterns to prevent individuals who are disfavored from ever
achieving permanent status."
585 F.2d at 427. This danger, according to the court, is almost
never present in any "true" seniority system, in which rights
"usually accumulate automatically over time. . . ."
Ibid.
[
Footnote 9]
The Court of Appeals directed the trial court on remand to
consider as well the respondent's claims under 42 U.S.C. § 1981 and
29 U.S.C. §§ 159 and 185.
[
Footnote 10]
See 110 Cong.Rec. 1518, 5423, 7207, 7213, 7217, 12723,
15893 (1964). The example of a "seniority system" most frequently
cited in the congressional debates was one that provided that the
"last hired" employee would be the "first fired." Nowhere in the
debates, however, is there any suggestion that this model was
intended to be anything other than an illustration.
[
Footnote 11]
See Trans World Airlines, Inc. v. Hardison,
432 U. S. 63;
United Air Lines, Inc. v. Evans, 431 U.
S. 553;
Teamsters v. United States,
431 U. S. 324;
Franks v. Bowman Transportation Co., 424 U.
S. 747.
[
Footnote 12]
Webster's Third New International Dictionary 2066 (unabridged
ed.1961) defines "seniority," in pertinent part, as the
"status attained by length of continuous service . . . to which
are attached by custom or prior collective agreement various rights
or privileges . . . on the basis of ranking relative to others. . .
."
[
Footnote 13]
A collective bargaining agreement could, for instance, provide
that transfers and promotions are to be determined by a mix of
seniority and other factors, such as aptitude tests and height
requirements. That the "seniority" aspects of such a scheme of
transfer and promotion might be covered by § 703(h) does not mean
that the aptitude tests or the height requirements would also be so
covered.
[
Footnote 14]
See E. Beal, E. Wickersham, & P. Kienast, The
Practice of Collective Bargaining 430-431 (1972); Cooper &
Sobol, Seniority and Testing Under Fair Employment Laws: A General
Approach to Objective Criteria of Hiring and Promotion, 82
Harv.L.Rev. 1598, 1602 (1969); Aaron, Reflections on the Legal
Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532,
1534 (1962).
[
Footnote 15]
Webster's Third New International Dictionary 2322 (unabridged
ed.1961) defines "system," in pertinent part, as a "complex unity
formed of many often diverse parts subject to a common plan or
serving a common purpose."
[
Footnote 16]
See generally S. Slichter, J. Healy, & E.
Livernash, The Impact of Collective Bargaining on Management
115-135 (1960).
[
Footnote 17]
By way of example, a collective bargaining agreement could
specify that an employee begins to accumulate seniority rights at
the time he commences employment with the company, at the time he
commences employment within the industry, at the time he begins
performing a particular job function, or only after a probationary
period of employment.
[
Footnote 18]
For example, a collective bargaining agreement could provide
that accumulated seniority rights are permanently forfeited by
voluntary resignation, by severance for cause, or by nonemployment
at a particular plant or in the industry for a certain period.
[
Footnote 19]
For instance, the time an employee works in the industry or with
his current employer might not be counted for the purpose of
accumulating seniority rights, whereas the time the employee works
in a particular job classification might determine his
seniority.
[
Footnote 20]
By way of example, a collective bargaining agreement could
provide that an employee's seniority will govern his entitlement to
vacation time and his job security in the event of layoffs, but
will have no influence on promotions or job assignments.
[
Footnote 21]
The examples in the text of the types of rules necessary to the
operation of a seniority system are not intended, to and do not,
comprise an exhaustive list.
[
Footnote 22]
There are indications in the record of this case that a
long-term decline in the California brewing industry's demand for
labor is a reason why the accrual of seniority as a temporary
employee has not led more automatically to the acquisition of
permanent status. But surely what would be part of a "seniority
system" in an expanding labor market does not become something else
in a declining labor market.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE BLACKMUN join, dissenting.
In the California brewing industry, an employee's rights and
benefits are largely dependent on whether he is a "permanent"
employee within the meaning of the collective bargaining agreement.
Permanent employees are laid off after all other employees. If laid
off at one facility, a permanent employee is permitted to replace
the least senior nonpermanent employee at any other covered
facility within the local area. Permanent employees are selected
before temporary employees to fill vacancies. They have exclusive
rights to supplemental unemployment benefits upon layoff and
receive higher wages and vacation pay for the same work performed
by other employees. Permanent employees have first choice of
vacation times, less rigorous requirements for qualifying for
holiday pay, exclusive access to veterans' reinstatement and
seniority rights, and priority in assignment of overtime work among
bottlers.
According to respondent Bryant's complaint, no Negro has ever
attained permanent employee status in the California brewing
industry. [
Footnote 2/1]
Page 444 U. S. 612
The provision of the collective bargaining agreement at issue
here defines a permanent employee as one
"who . . . has completed forty-five weeks of employment . . . in
one classification in one calendar year as an employee of the
brewing industry in this State."
An employee who works 44 weeks per year for his entire working
life remains a temporary employee. By contrast, an employee who
works 45 weeks in his first year in the industry attains permanent
employee status. This simple fact belies the Court's conclusion
that the 45-week requirement "does not depart significantly from
commonly accepted concepts of
seniority.'" Ante at
444 U. S. 609.
Since I am unable to agree that the provision at issue is part of a
"seniority system" under § 703(h) of Title VII, I dissent.
I
Neither Title VII nor its legislative history provides a
comprehensive definition of the term "seniority system." [
Footnote 2/2] The Court is therefore
correct in concluding that the term must be defined by reference to
"commonly accepted notions about
seniority' in industrial
relations" and "in the context of Title VII and this country's
labor policy." Ante at 444 U. S. 605.
Those "commonly accepted notions," however, do not lead to the
Court's holding today. And I believe that the relevant policies do
not support that holding, but instead require that it be
rejected.
The concept of "seniority" is not a complicated one. The
fundamental principle, as the Court recognizes,
ante at
444 U. S. 606,
is that employee rights and benefits increase with length of
service. This principle is reflected in the very definition of the
term, as found in dictionaries [
Footnote 2/3] and treatises and articles in
Page 444 U. S. 613
the field of industrial relations. [
Footnote 2/4] To quote from a few of the sources on
which the Court purports to rely today:
"Seniority is a system of employment preference based on length
of service;
Page 444 U. S. 614
employees with the longest service are given the greatest job
security and the best opportunities for advancement."
Aaron, Reflections on the Legal Nature and Enforceability of
Seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962).
"The variations and combinations of seniority principles are
very great, but, in all cases, the basic measure is length of
service, with preference accorded to the senior worker."
Cooper & Sobol, Seniority and Testing under Fair Employment
Laws: A General Approach to Objective Criteria of Hiring and
Promotion, 82 Harv.L.Rev. 1598, 1602 (1969).
"Seniority grants certain preferential treatment to long-service
employees almost at the expense of short-service employees. . . .
[S]eniority is defined as length of service."
E. Beal, E. Wickersham, & P. Kienast, The Practice of
Collective Bargaining 430 (1972).
It is hardly surprising that seniority has uniformly been
defined in terms of cumulative length of service. No other
definition could accord with the policies underlying the
recognition of seniority rights. A seniority system provides an
objective standard by which to ascertain employee rights and
protections, thus reducing the likelihood of arbitrariness or
caprice in employer decisions. At the same time, it promotes
stability and certainty among employees, furnishing a predictable
method by which to measure future employment position.
See,
e.g., Sayles, Seniority: An Internal Union Problem, 30
Harv.Bus.Rev. 55 (1952); C. Golden & H. Ruttenberg, The
Dynamics of Industrial Democracy 128-131 (1973); Cooper &
Sobol,
supra, at 1604-1605.
The Court concedes this general point, recognizing that a
"'seniority system' is a scheme that, alone or in tandem with
non-'seniority' criteria, allots to employees ever improving
employment rights and benefits as their relative lengths of
pertinent employment increase."
Ante at
444 U. S.
605-606 (footnote omitted). In my view, that concession
is dispositive of this case. The principal effect of the 45-week
requirement is to ensure that employee rights and benefits in the
California
Page 444 U. S. 615
brewing industry are not "ever improving" as length of service
increases. Indeed, cumulative length of service is only
incidentally relevant to the 45-week rule. The likelihood that a
temporary employee will attain permanent employee status is largely
unpredictable. The 45-week period, which is exclusive of vacation,
leaves of absence, and time lost because of injury or sickness,
represents almost 90% of the calendar year. Even if an employee is
relatively senior among temporaries, his ability to work 45 weeks
in a year will rest in large part on fortuities over which he has
no control. The most obvious reason that employees have been
prevented from attaining permanent employee status -- a reason
barely referred to by the Court -- is that the brewing industry is
a seasonal one. An employee may also be prevented from becoming
permanent because of replacement by permanent employees or an
employer's unexpected decision to lay off a particular number of
employees during the course of a year. [
Footnote 2/5] It is no wonder that the accrual of
seniority by temporary employees has not led with any regularity to
the acquisition of permanent employee status. [
Footnote 2/6] In sum, the 45-week rule does not
have
Page 444 U. S. 616
the feature of providing employees with a reasonably certain
route by which to measure future employment position. So
understood, the 45-week rule has very little to do with seniority,
for it makes permanent status turn on fortuities over which the
employee has no control, not on length of service with the employer
or in the relevant unit.
The Court avoids this conclusion by little more than assertion.
It observes that the 45-week rule acts as a threshold requirement
for entry onto the seniority track composed of permanent employees,
but eliminates the force of that observation with the inevitable
concession that such threshold requirements are not necessarily
entitled to § 703(h) exemption. [
Footnote 2/7] It notes that the 45-week requirement
"focuses on length of employment," and proceeds to the unexplained
conclusion that it therefore "does not depart significantly from
commonly accepted concepts of
seniority.'" And it adds that
more senior temporary employees tend to have a greater opportunity
to obtain work, and thus to attain permanent status through 45
weeks of employment in a calendar year.
The Court's analysis, of course, is largely dependent on its
conclusion that, since the 45-week requirement is one measured by
time of service, it does not depart from common concepts of
seniority. That conclusion, however, is foreclosed by the Court's
own definition of a seniority system as one in which employee
rights increase with cumulative length of
Page 444 U. S. 617
service -- not length of service within a calendar year. The
mere fact that the 45-week rule is in some sense a measure of
"time" does not demonstrate a valid relation to concepts of
seniority. Such a conclusion would make the § 703(h) exemption
applicable to a rule under which permanent employee status is
dependent on number of days served within a week, or hours served
within a day. [
Footnote 2/8]
Nor is there much force to the suggestion that the 45-week
requirement somehow becomes part of a seniority system because
permanent employee status is more easily achieved by the more
senior temporary employees. I could agree with the Court's decision
if petitioners demonstrated that the collective bargaining
agreement actually operates to reward employees in order of
cumulative length of service. But, at this stage of the litigation,
there is no evidence that temporary employees attain permanent
status in a way correlating even roughly with total length of
employment. The mere possibility that senior temporary employees
are more likely to work for 45 weeks is, in my view, insufficient.
[
Footnote 2/9] It might as well be
said that a law conditioning permanent employee status on the
attainment of a certain level of skill is a "seniority" provision,
since skills tend to increase with length of service. A temporary
employee is always subject to a risk that, for some reason
Page 444 U. S. 618
beyond his control, he will be unable to work the full 45 weeks
and be forced to start over again.
II
Since the 45-week rule operates as a threshold requirement with
no relation to principles of seniority, I believe that the rule is,
for analytical purposes, no different from an educational standard
or physical test which, as the Court indicates, is plainly not
entitled to § 703(h) exemption. Accordingly, I think it clear that
the 45-week requirement is not part of a "seniority system" within
the meaning of § 703(h). But if the question were perceived to be
close, I would be guided by the familiar principle that exemptions
to remedial statutes should be construed narrowly.
"To extend an exemption to other than those plainly and
unmistakably within its terms and spirit is to abuse the
interpretative process and to frustrate the announced will of the
people."
Phillips Co. v. Walling, 324 U.
S. 490,
324 U. S. 493
(1945).
See, e.g., Group Life & Health Ins. Co. v. Royal
Drug Co., 440 U. S. 205,
440 U. S. 231
(1979);
Abbott Laboratories v. Portland Retail Druggists
Assn., 425 U. S. 1,
425 U. S. 12
(1976);
Peyton v. Rowe, 391 U. S. 54,
391 U. S. 65
(1968). The effect of § 703(h) is to exempt seniority systems from
the general prohibition on practices which perpetuate the effects
of racial discrimination. This exception is a limited one in
derogation of the overarching purpose of Title VII, "the
integration of blacks into the mainstream of American society,"
Steelworkers v. Weber, 443 U. S. 193,
443 U. S. 202
(1979). A statute designed to remedy the national disgrace of
discrimination in employment should be interpreted generously to
comport with its primary purpose; exemptions should be construed
narrowly, so as not to undermine the effect of the general
prohibition. Today the Court not only refuses to apply this
familiar principle of statutory construction, it does not even
acknowledge it.
Page 444 U. S. 619
In my view, the Court's holding is fundamentally at odds with
the purposes of Title VII and the basic function of the § 703(h)
exemption. I dissent. [
Footnote
2/10]
[
Footnote 2/1]
In the present procedural posture of the case, of course, the
allegations of the complaint must be accepted as true.
[
Footnote 2/2]
The legislative history does, however, provide a bit more
guidance than the Court admits. The fact that the sole example of a
seniority system given in the congressional debates is one in which
rights increase with cumulative length of service is at least
suggestive.
See ante at
444 U. S. 605,
n. 10.
[
Footnote 2/3]
See, e.g., Webster's Third New International Dictionary
2066 (unabridged ed.1961) ("a status attained by length of
continuous service (as in a company . . .) to which are attached by
custom or prior collective agreement various rights or
privileges"); Random House Dictionary of the English Language 1299
(1966) ("priority, precedence, or status obtained as the result of
a person's length of service"); Black's Law Dictionary 1222 (5th
ed.1979) ("As used with reference to job seniority, worker with
most years of service is first promoted within range of jobs
subject to seniority, and is the last laid off, proceeding so on
down the line to the youngest in point of service"); Ballentine's
Law Dictionary 1160 (1969) ("the principle in labor relations that
length of employment determines the order of layoffs, rehirings,
and advancements").
[
Footnote 2/4]
See, e.g., Roberts' Dictionary of Industrial Relations
390 (1966) ("The length of service an individual employee has in
the plant. . . . The seniority principle rests on the assumption
that the individuals with the greatest length of service within the
company should be given preference in employment"); United States
Department of Labor, Bureau of Labor Statistics, Bulletin No.
908-11, p. 1 (1949) ("A seniority program aims to provide maximum
security in employment to those with the longest service"); E.
Dangel & I. Shriber, The Law of Labor Unions § 15 (1941)
("Seniority . . . is an employment advantage in the matter of the
choice of and the right to work in one's occupation on the basis of
an employee's length of service"); BNA, Collective Bargaining
Contracts, Techniques of Negotiation and Administration with
Topical Classification of Clauses 488 (1941) ("The term [seniority]
refers to length of service with the employer or in some division
of an enterprise"); Meyers, The Analytic Meaning of Seniority,
Industrial Relations Research Association, Proceedings of
Eighteenth Annual Meeting 194 (1966) ("Seniority is the application
of the criterion of length of service for the calculation of
relative equities among employees"); McCaffrey, Development and
Administration of Seniority Provisions, Proceedings of New York
University Second Annual Conference on Labor 132 (1949) ("seniority
may be defined as the length of company-recognized service as
applied to certain employer-employee relationships"); Christenson,
Seniority Rights Under Labor Union Working Agreements, 11 Temp.L.Q.
355 (1937) ("seniority is a rule providing that employers promote,
lay off and reemploy labor, according to length of previous
service").
Cf. P. Selznick, Law, Society, and Industrial
Justice 203 (1969) (referring to the "
rather general feeling
that a worker who has spent many years on his job has some stake in
that job and in the business of which it is a part'").
[
Footnote 2/5]
Indeed, the agreement expressly provides that a permanent
employee laid off at one facility will replace (or "bump") the
temporary employee with the lowest plant seniority, even if that
employee has more industry seniority than others. As a result,
temporaries who are relatively senior in terms of industry
seniority may have less opportunity to work 45 weeks in a calendar
year than temporaries with less industry seniority but more plant
seniority. Thus, it is simply not true that temporary employees
obtain permanent employee status in order of cumulative length of
employment, for the requisite 45 weeks is computed on the basis of
service in the industry, rather than in particular plants.
[
Footnote 2/6]
The Court acknowledges this point,
ante at
444 U. S. 610,
n. 22, but responds that a system which would fall within § 703(h)
in an expanding labor market does not lose that status by virtue of
the fact that the labor market is contracting. In the Court's
words, however, the question is whether the 45-week rule is a part
of a seniority system because it "allots to employees ever
improving employment rights and benefits as their relative lengths
of pertinent employment increase." In that context, it is surely
relevant whether the 45-week provision does, in fact, operate to
reward cumulative length of service, or serves instead as a
virtually impassable barrier to advancement.
[
Footnote 2/7]
As the Court's own analysis suggests, the 45-week provision is
entirely different from the seniority provisions involved in
Teamsters v. United States, 431 U.
S. 324 (1977). At issue in that case was a seniority
system granting some benefits on the basis of an employee's
cumulative length of service with the company, and others on the
basis of cumulative length of service in a particular job category.
In both cases, employee rights and benefits depended on total
length of service in the relevant unit, not on the length of
service within a calendar year.
[
Footnote 2/8]
For example, there can be no serious question that a provision
making permanent status dependent on 7 days of work per week, or 12
hours per day, would not be part of a "seniority system" within the
meaning of § 703(h)
[
Footnote 2/9]
I could understand, although I do not favor, a decision
remanding this case for factual findings on the question whether
temporary employees in fact acquire permanent status and, if so,
whether they do so in order of cumulative length of service. In my
view, it is extraordinary for the Court to conclude, in a factual
vacuum and on the authority of nothing other than petitioners'
word, that
"the rule does not distort the operation of the basic system
established by the Agreement, which rewards employment longevity
with heightened benefits."
See also 444
U.S. 598fn2/5|>n. 5,
supra.
[
Footnote 2/10]
To decide this case, we are not required to offer a complete
definition of the term "seniority system" within the meaning of §
703(h). Nor are we called upon to canvass and evaluate rules
"ancillary" to seniority systems. The question whether all of the
rules listed by the Court,
ante at 607, nn. 17-20, are
part of a seniority system is not at all easy, and the Court's own
reasoning demonstrates that its discussion of those rules is
gratuitous and does little to advance analysis of the 45-week
requirement. That requirement serves none of the functions of an
"ancillary" rule.