Seniority Systems

• Author: George Rutherglen
• Pages: 59

An important exception to the prohibition against discrimination in Title VII is the seniority clause of section 703(h). It provides that differences in terms and conditions of employment pursuant to a bona fide seniority system do not violate the statute, "provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin."[278] This exception was at first narrowly construed by the lower federal courts to allow only seniority systems that computed seniority according to time employed at the plant or by the employer,[279] but in International Brotherhood of Teamsters v. United States,[280] the Supreme Court held that it protected all forms of seniority systems. In particular, a seniority system could not be shown to violate the statute under the theory of disparate impact. Instead, it was necessary to show that the system resulted in disparate treatment and therefore was not "bona fide" or was "the result of an intention to discriminate."[281] In subsequent cases, the Court applied the exception to a seniority system that distinguished between permanent employees who had worked forty-five weeks in a single calendar year and temporary employees who had not[182] and to a seniority system that was established after the effective date of Title VII.[283]

In both cases, the Court followed its reasoning in Teamsters that the exception applied to all forms of seniority systems.

The Court has left unclear, however, how disparate treatment in a seniority system is to be proved. In a procedural ruling, the Court held that the district court's findings on this issue must be accepted on appeal unless clearly erroneous,[284] but apart from the suggestion in Teamsters that a seniority system was illegal if it had its "'genesis in racial discrimination,'"[285] the Court has not elaborated on the ways in which disparate treatment can be established. The disparate impact of a seniority system may be difficult to distinguish from disparate treatment. Seniority systems carry forward the effects of past discrimination, for instance, by awarding seniority to white employees who benefited from past hiring discrimination against blacks. Presumably, Teamsters implies that such disparate impact alone does not establish disparate treatment. However, evidence of discrimination in other employment practices does give rise to an inference of discrimination in the seniority system, and in a...