Benefit‐type Seniority, Competitive‐type Seniority, and Retroactive Compensation for Past Discrimination

• DOI: http://doi.org/10.1111/j.1744-1714.1977.tb01438.x
• Date: 01 September 1978
• Author: Richard P. Nielsen
• Published date: 01 September 1978

COMMENTS AND CASE NOTES DEPARTMENT

COMMENTS

BENEFIT-TYPE SENIORITY, COMPETITIVE-TYPE SENIORITY,

AND

RETROACTIVE COMPENSATION

FOR

PAST

DISCRIMINATION

Benefit-type seniority refers to the allocation of noncompetitive

benefits to employees under a contract of employment. That is,

benefit seniority entitles an employee to certain benefits from an

employer that do not affect other employees. Examples of such

benefits are length of vacation, amount of pension benefits, salary

scale, etc.

Competitive-type seniority refers to the allocation

of

preferen-

tial rights to various economic advantages that, if given to one

employee, affect other employees. Examples are order of layoff,

order of recall, job assignments, work schedule, promotion con-

sideration, transfer, rest days, shift assignments, vacation sched-

uling, training opportunities, overtime opportunities, parking

spaces, etc. Title

VII

of the Civil Rights Act of 1964 states that:

Notwithstanding any other provision of this subchapter 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.'

Section 706(b) of Title

VII

of the Civil Rights Act of 1964 states

that:

If

the court finds that the respondent (employer

or

union) has inten-

tionally engaged in or is intentionally engaging in an unlawful employ-

ment practice charged in the complaint, the court may enjoin the res-

t

Civil

Rights

Act

of

1964,

6

703(h), 42

U.S.C.

2000e-2(h)

(1970)