Example - Until 1978, respondent employer had very few Hispanic employees.  As a result of an affirmative action plan implemented in 1978, the employer hired a substantial number of Hispanics in 1978 and 1979.  In early 1980, the employer lost several government contracts and was forced to lay off a number of employees.  Respondent employer's seniority system was established in 1963 as a result of collective bargaining with respondent union.  The seniority system has always provided that layoffs would be made on the basis of seniority with those hired most recently laid off first.  Because of this provision, respondent employer laid off most of the Hispanic employees hired over the past two years while only laying off a few non-Hispanic employees. Application of the seniority system therefore had an adverse impact on the Hispanics.  This might normally indicate a violation of Title VII, unless the respondents could justify the order of layoff as a business necessity.  In this case, though, the respondents may not have to raise the business necessity defense.  Because the layoffs were done according to the rules of a seniority system, the respondents can raise § 703(h) of Title VII as a defense.  If the system is bona fide, there will be no violation of Title VII. (Sections 616.19 through 616.23 will provide instructions on how to determine if a system is bona fide; also, see § 616.26 for further discussion of layoff and recall.)

(b)  Perpetuation of Past Discrimination

(1)  While many charges involving seniority systems will contain allegations of adverse impact, a large number of seniority-related charges will allege perpetuation of past discrimination.  However, the Supreme Court has interpreted § 703(h) in Teamsters and Patterson as protecting a collectively bargained, bona fide seniority system, even if the seniority system perpetuates the effects of prior discrimination.  (Sections 616.19 through 616.23 will provide instructions on how to determine if a system is bona fide.)  A bona fide seniority system that perpetuates the effects of a discriminatory act or acts occurring before the effective date of Title VII cannot be challenged, and neither can the original discriminatory practice or procedure, since it occurred before Title VII went into effect.  A bona fide seniority system that perpetuates the effects of a discriminatory act or acts occurring after the effective date of Title VII also cannot be challenged.  California Brewers Association v. Bryant.  However, the original discriminatory practice or procedure can be challenged and processed as a regular discrimination charge if made the subject of a timely charge.  (See § 605.6 on timeliness.)  Once a finding of discrimination is made regarding the original practice or procedure, retroactive seniority may be appropriate relief for an individual charging party.  While the seniority system as a whole cannot be challenged an individual can be restored to his/her rightful place in the existing system by being given the amount of seniority (s)he would have had but for the discrimination. International Brotherhood of Teamsters v. United States; Franks v. Bowman Transportation Co., 424 U.S. 747, 11 EPD ¶ 10,777 (1976).

Example - Speedy Transportation Company (R) has had the same collectively bargained seniority system since 1961.  The system has three rosters:  one company-wide roster for noncompetitive purposes, one competitive roster for over-the-road (OTR) drivers, and another competitive roster for local drivers.  An employee transferring from one department to another loses his/her competitive seniority in his/her original department and begins at the bottom of the roster in the new department.  From 1965 to 1973, R refused to hire Blacks into the OTR department.  Outside Black applicants were either rejected outright or were hired for the less attractive, lesser paying jobs in the local driver department.  Blacks already employed by Speedy as local drivers who were willing to sacrifice their local driver seniority and had applied for OTR jobs were turned down.  R ended its discriminatory hiring and assignment practices in 1973.  Four months later, a charge of discrimination was filed by Blacks who had applied for OTR jobs during the period of discrimination, including outside applicants and employees seeking transfers.  The charging parties (CPs) alleged that R had engaged in discriminatory hiring and transfer practices and that this discrimination was perpetuated by the seniority system.  CPs wanted to be hired or reassigned as OTR drivers with full backpay to the dates of their original applications. Further, they wanted the use of departmental seniority for competitive purposes scrapped in favor of a system using company seniority for competitive purposes, with each newly hired CP given retroactive seniority to the date of his/her application and each local driver CP given retroactive seniority to when (s)he was originally hired.  While R has admitted to the discriminatory hiring and assignment practices, it claims that its seniority system, using departmental seniority for competitive purposes, is bona fide and therefore protected from challenge by § 703(h).  The Commission's investigation (see § 616.19) reveals that the system is in fact bona fide; R therefore cannot be required to modify or eliminate it.  However, each CP who had been discriminated against and who had filed a timely charge (see § 605.6) should be hired with backpay and retroactive departmental seniority within the existing system.  If a CP had applied for an OTR job, been rejected for discriminatory reasons and filed a timely charge, then the appropriate relief would be for R to hire him/her as an OTR driver with backpay and retroactive OTR seniority to the date of the application.

(2)  The perpetuation of past discrimination theory is not universally recognized as a basis for relief particularly after the Supreme Court's decision in United Airlines, Inc. v. Evans, 431 U.S. 553, 14 EPD ¶ 7,577 (1977).  It is the Commission's position that Evans does not affect the perpetuation theory.  See § 604.8 of the Theories section of the Compliance Manual Commission Decision No. 81-3, CCH Employment Practices Guide ¶ 6,761.

The Court issued Evans on the same day as Teamsters.  In Teamsters, the Court upheld the validity of the perpetuation theory.  Quoting from Griggs v. Duke Power Co., 404 U.S. 424, 3 EPD ¶ 8,137 (1971), the Court repeated that Congress intended Title VII to prohibit not only overt discrimination but also practices that are fair in form but discriminatory in operation.  The latter includes practices that perpetuate the effects of prior discrimination.  431 U.S. at 349, 14 EPD at p. 4858.  The perpetuation theory would even apply in the seniority context, if the system could be shown not to be bona fide.  431 U.S. at 349, 14 EPD at p. 4859.

Evans, on the other hand, primarily involved an allegation of a continuing violation.  The Court stated that;

United's seniority system does indeed have a continuing impact on [Evan's] 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 than former employees who resigned or were discharged for a non-discriminatory reason.  In short, the system is neutral in operation.

431 U.S. at 558, 14 EPD at p. 4841 [footnote omitted ].

The Court went on to find that no present violation existed, that the prior discriminatory discharge was a past event with no legal significance.  However, the Court did not foreclose an attempt by a similarly situated plaintiff to raise a claim under the perpetuation theory.  Rather, as suggested by fn. 10, Evans' error was in not attacking the seniority system itself. She made no charge that the system deterred her from asserting any right granted by Title VII; e.g., transfer, promotion, or retirement.  She made no charge that the system was not bona fide, that it was intentionally designed to discriminate.  Because she in effect accepted the system as bona fide, any claim she might have made that it perpetuated a prior discriminatory act would be barred by § 703(h).  If she had challenged the seniority system as not being bona fide and had been able to prove it, then her claim would have been timely under the perpetuation theory.

The distinction between a continuing violation claim and a perpetuation claim cannot be emphasized too strongly. For a continuing violation to exist, there must be a present violation.  The Court found that Evans had failed to show the existence of a present violation; the prior discriminatory discharge was a past event with no legal significance that simply affected the calculation of her seniority credit under a concededly neutral, bona fide system -- a system Evans was not arguing should be changed.  However, under the perpetuation theory the challenge is to the seniority system itself; because it is not bona fide and because it perpetuates prior discrimination, the system is itself a present violation of Title VII and must be changed.  Patterson v, American Tobacco Co., 634 F.2d 744 at 751, 24 EPD ¶ 31,361 at p. 18. 181 (4th Cir. 1980), vacated and remanded on other grounds, 456 U.S. 63, 28 EPD ¶ 32,561 (1982), remanded, ____ F.2d ____, 30 EPD ¶ 33,033 (4th Cir. 1982).

Because of this, the seniority system can be a present violation even if the system no longer has an adverse impact and even if minorities or women have worked their way into the job, LOP, etc., despite the seniority system.  The focus of Title VII is on individual rights and opportunities, Connecticut v. Teal, 457 U.S. 440, 29 EPD ¶ 32,820 (1982).  If an individual was discriminatorily assigned to a job, LOP, etc., in the past and is locked in by a non-bona fide seniority system, that individual is entitled to relief.

Example 1 - CP, a Black male, alleges that R's policy of prohibiting transfers between Department A and Department B perpetuates past discrimination.  R argues that the no transfer rule is part of R's seniority system (but see § 619.9 on ancillary rules).  Before 1965, R only hired Blacks into Department A and only hired Whites into Department B.  Since 1965, R has hired a number of Blacks into Department B from outside the company, enough so that the percentage of Blacks in Department B is equivalent to the percentage of Blacks in the Civilian Labor Force.  However, those Blacks hired into Department A before 1965 continue to be locked out of Department B by the seniority system -- they would have to quit in order to be able to apply for jobs in Department B.  If R's seniority system is not bona fide, then it will be a violation of Title VII because it perpetuates the pre-1965 discrimination.

Example 2 - In the above example, the result would be the same even if CP was the only pre-1965 Black employee remaining in Department A.  The remainder of the Black employees in Department A and Department B were all hired after 1965.  Even if the seniority system no longer has an adverse impact on Blacks -- if an equal number of Whites and Blacks in Department A are discouraged from transferring to Department B -- it will still be discriminatory as to CP under the perpetuation theory, if the system is otherwise not bona fide.

All of the court decisions cited throughout this Manual Section are post-Evans and post-Teamsters.  Where the challenged seniority systems were found to not be bona fide, the courts have found them to violate Title VII and have ordered them changed under the perpetuation theory, in addition to providing individual relief.

When a respondent claims that § 703(h) protects its merit system from a charge of discrimination, the EOS should determine if the challenged selection procedure or procedures are bona fide. Bona fide in this context simply means job-related.   Guardian's Association of the N.Y.C. Police Department v. Civil Service Commission of the City of New York, 633 F.2d 232, 23 EPD ¶ 31,153 (2nd Cir. 1980), rev'd in part, aff'd in part on other issues, 463 U.S. 582, 32 FEP Cases 250 (1983); Dickerson v. U.S. Steel Corp., 472 F. Supp. 1304, 17 EPD ¶ 8,528 (E.D. Pa. 1977).  (See § 610 on adverse impact for instructions on how to determine if a selection procedure is job-related.)

(a)  Adverse Impact

(1)  Merit System - When a charge alleges that all or part of a merit system has an adverse impact, the charge may be CDP and should be processed under § 604.8 of the Theories Section of this Manual and § 610, Adverse Impact in the Selection Process.  This is true regardless of whether the system was created pre- or post-Act.

Example 1 - Respondent employer and respondent union have agreed that all promotion will be based on a merit system consisting of a written exam and performance ratings for the past two years. CP alleges that Native Americans as a class do not score well on the exam, i.e., that the exam has an adverse impact on Native Americans.  The exam and the performance ratings together are a total selection process as described in § 610 of Volume II of the Compliance Manual, dealing with employee selection procedures.  The EOS should follow the instructions in §§ 604.8 and 610 to determine if this selection process as a whole has an adverse impact on Native Americans, i.e., if Native Americans are promoted at the same rate as other race/ ethnic groups.  If there is adverse impact, the EOS should determine whether each of the two component selection procedures has adverse impact.  If either the test and/or the use of performance ratings has adverse impact, then the EOS should investigate whether that procedure is job-related and recommend a cause or no cause determination.  Section 610 provides more detailed discussion of how to investigate and resolve a charge involving an allegation of adverse impact and explains which types of charges are CDP.

Example 2 - The charge in the above example would be handled the same if the employer unilaterally imposed the merit system, without the agreement of the union or if there was no union at all.

(2)  Seniority System - When a charge alleges that all or part of a seniority system has an adverse impact, the EOS should generally follow the instructions in § 616.19.  (See § 616.14(a) for an example of a seniority system with adverse impact.)  If the system is bona fide it is protected by § 703(h) and the EOS should recommend a no cause LOD, regardless of any adverse impact it might have.  If the system has an adverse impact and is not bona fide, then it is not protected by § 703(h) and the EOS should recommend a cause LOD unless the charge is non-CDP for one of the reasons explained in § 610.  An exception to this may arise, however, when a charge alleges that a layoff has an adverse impact.  (See § 616.26 for more on layoffs.)

(b)  Perpetuation of Past Discrimination

(1)  Pre-Act Discrimination, System Is Bona Fide - When the discriminatory act occurred prior to July 2, 1965 (the effective date of Title VII), and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is bona fide as explained in §§ 616.19 through 616.23.  Commission Decision No. 81-3, CCH Employment Practice Guide ¶ 6,761. These situations are covered by the Supreme Court decisions in Teamsters v. U. S. and American Tobacco Co. v. Patterson and the seniority systems are protected by § 703(h).  The EOS should recommend a no cause LOD.  An exception may arise, however, when a charge alleges that a layoff perpetuates past discrimination.  (See § 616.26 for more on layoffs.)

Example 1 - From 1956 through 1964, Company R had a high school diploma requirement that resulted in hiring only Whites for the better paying bookkeeping positions and Blacks for the less desirable clerical positions.  Realizing that the diploma requirement was not valid, i.e., not necessary for the successful performance of bookkeeping duties, R eliminated the requirement in 1965 and began hiring Blacks and Whites for both jobs, thereby ending its discrimination.  CP, a Black clerk hired in 1961, filed a charge in 1981.  The pre-1965 discrimination in hiring and assignment cannot be challenged as it occurred before Title VII was in effect.  However, the charge alleges that the pre-Act discrimination has been perpetuated by R's seniority system.  R has a two-track seniority system, created by a collective bargaining agreement in 1965.  The system has one track for clericals and another for bookkeepers.  An employee transferring from one job category to the other would lose all seniority earned in the previous job category.  Further, all those employees hired before 1965 have a competitive advantage over those hired in 1965 or after because of the seniority they have already accumulated in their respective tracks.  This would perpetuate the pre-Act discrimination against Blacks.  If the system is in fact bona fide (see § 616.19 below), it would be protected by § 703(h).  Seniority by job category would continue and those hired prior to 1965 would keep their seniority.

Example 2 - Company L began business in 1966.  It had no seniority system until 1969, when Union C organized all of the company's nonsupervisory and other nonmanagement employees.  From 1966 to 1969, the company only hired Whites as mechanics; both Blacks and Whites were hired as janitors.  From 1970 on, the company hired both Whites and Blacks as mechanics.  In 1969, as part of the collective bargaining agreement, a seniority system was set up with one roster for mechanics and another for janitors.  An employee who transferred from one job to another would lose all seniority earned on the previous roster, thereby locking in all Blacks previously hired as janitors and discouraging them from transferring to jobs as mechanics.  A charge filed in 1972 by Black janitors hired before 1969, alleging that the seniority system perpetuated the post-Act discrimination, would be CDP.  If the system is bona fide (see § 616.19), it would be protected by § 703(h) even though it perpetuated the pre-1970 discrimination.

(2)  Pre-Act Discrimination, System Not Bona Fide - When the discriminatory act occurred before the effective date of Title VII and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is not bona fide as explained in §§ 616.19 through 616.23.  Such systems are not protected by § 703(h) and the EOS should recommend a cause LOD.

Example 1 - In each example in § 616.17(b)(1) above, if the system is not bona fide, e.g., in Example 1, if it had been intentionally designed to exclude Blacks from bookkeeping jobs, then the system would not be protected by § 703(h).  Modification of the entire seniority system and relief retroactive to the effective date of Title VII (Example 1) or when the discrimination began if after that date (Example 2) may be appropriate.  (See § 616.14.)

Example 2 - Company N began business in 1961.  Its employees immediately joined Union C, and the company and union signed a collective bargaining agreement on the company's second day of business.  The agreement provided for the same seniority system as that in the above example.  From 1961 to 1969 the company only hired Whites as mechanics, while both Whites and Blacks were hired as janitors; the company stopped this discrimination in 1969.  The seniority system had the same locking in effect as in the above examples.  The collective bargaining agreement expired in 1971.  The Black janitors informed both the company and the union of the effect that the seniority system was having, and asked that the system be modified in the new agreement. Despite this, and with full knowledge of why most of the mechanics were Whites, the company and union simply continued the prior system.  Black janitors hired between 1961 and 1969 filed a charge in 1971, alleging that the renegotiated seniority system perpetuated the pre- and post-Act discrimination.  The charge is CDP.  The EOS determined that the system was bona fide when first created (before 1965) and up to the time it was renegotiated.  However, in large part because of the Black janitors' protest in 1971, the EOS determined that the system was not maintained free of intentional discrimination (see § 616.23) and made a cause determination.  Note that relief would be appropriate only back to the date of the renegotiated agreement (unless the original system was also not bona fide, in which case relief may be appropriate as far back as the effective date of the Act).

(3)  Post-Act Discrimination, System Is Bona Fide - When the discriminatory act occurred on or after July 2, 1965 (post-Act discrimination) and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is bona fide as explained in §§ 616.19 through 616.23.  Such systems are protected by § 703(h), as interpreted by the Supreme Court in Teamsters, California Brewers Ass'n, and Patterson.  The EOS should recommend a no cause LOD.  An exception may arise, however, when a charge alleges that a layoff perpetuates past discrimination.  (See § 616.26 for more on layoffs.)

Example - Consider the same situation as in Example 1 in § 616.17(b)(1) above, except that the diploma requirement was not eliminated and the discrimination did not end until 1980.  An individual could not, in 1981, challenge the bona fide seniority system as perpetuating the effects of the post-Act discrimination.  However, the diploma requirement itself could have been challenged if made the subject of a timely charge, i.e., if the charge had been filed within 180 or 300 days after the discrimination ended.  Retroactive seniority could be awarded.

(4)  Post-Act Discrimination, System Not Bona Fide - When the discriminatory act occurred on or after the effective date of the act and was perpetuated by a seniority system, the issue is CDP if the EOS determines that the seniority system is not bona fide as explained in §§ 616.19 through 616.23.  Such systems are not protected by § 703(h) and the EOS should recommend a cause LOD.

Example - Consider the same situation in the example in § 616.17(b)(3) above, except that the system was not bona fide, e.g., the system was intentionally designed to exclude Blacks from bookkeeping jobs.  This system would not be protected by § 703(h).

(5)  Pre- or Post-Act Discrimination, Employment System Other Than Seniority System - When the discriminatory act occurred before or after the effective date of Title VII and was perpetuated by an employment system, policy, practice, or procedure other than a seniority system, the issue is CDP.  This includes merit systems as described in § 616.16, as well as the following type of situation.

Example - Company R has no seniority system. Prior to 1965, the company only hired men as plumbers.  After 1965, the company stopped this discrimination, instituted an apprenticeship program in plumbing, and would only offer plumbing positions to those who successfully completed its program.  This is a neutral policy. CP, a woman, applied for a plumbing job in 1964 and was turned down because of the discriminatory policy.  She accepted a job as a janitor instead but continues to be interested in a plumbing position.  She has not been able to obtain a plumbing position because of the neutral apprenticeship policy.  By continuing to keep CP out while men hired prior to 1965 who did not participate in the apprenticeship program remained in, the neutral policy has perpetuated the pre-Act discrimination.  CP may be able to prove a post-Act violation based on perpetuation. (See the discussion of timeliness in § 605, Jurisdiction.)  (Note: the neutral policy may also have an adverse impact on women, see §§ 610 and 616.17(a)(1).)

(i)  Further discussion can be found at § 604.8 of the Theories Section of this Manual.

(ii) If there is any question as to whether the challenged system, policy, etc., is part of a seniority system (see discussion of ancillary rules, § 616.9 above), the EOS should consult an attorney in the district office's legal division or in the Guidance Division of the Office of Legal Counsel.

(c)  Voluntary or Court-Ordered Seniority Modification or Override - Charges where the employer and union have voluntarily adopted a seniority override as one type of affirmative action are CDP.  This will occur when the employer and the union agree to bypass a bona fide seniority system or some of its provisions in certain situations such as layoff or recall.  Similarly, a court may order that a bona fide seniority system be bypassed in order to preserve the gains achieved under an earlier consent decree that did not involve the seniority system but that included an affirmative action plan for hiring, promotion, and the like. Bypassing seniority may affect the seniority expectations of those not benefitted by the bypass.  (See § 616.27 for further guidance.)

(a)  Adverse Impact

(1)  Lines of Progression Not Part of Seniority System - When advancement within a LOP is based not on length of service in the line but on some broader measure such as plant seniority, then the respondent's LOPs may not be part of the seniority system. (See § 616.10(a).)  If the use of LOPs is nevertheless alleged to have an adverse impact, the protection of § 703(h) may not apply. Such charges are non-CDP.

Example - The Sales Department at Company C generally offers the highest paying jobs and the greatest opportunities for advancement.  There are very few women in the Sales Department, while most of the employees in the Clerical Department and other departments are women.  Transfers between departments are competitive and are based on company-wide seniority.  However, a person transferring from one department to another must begin at the bottom of the LOP in the new department, e.g., a woman in a position high up the clerical LOP who transfers to Sales would have to start at the bottom of the Sales LOP.  This will often result in a drop in pay.  Advancement within each LOP is also based on company-wide seniority, so a new Sales employee with a lot of seniority from the Clerical Department may well be able to move up the Sales LOP fairly quickly.  Nevertheless, the short term reduction in pay, even if only temporary, discourages women in the Clerical Department and other departments from transferring to Sales.  The use of LOPs, even though coupled with company-wide seniority, has an adverse impact on women.  The use of LOPs in this way may affect whether or not they are to be considered part of Company C's seniority system and protected by § 703(h).  This issue is non-CDP.

(2)  Layoff vs. Worksharing - As will be explained in § 616.26(b), a charge involving an employer's decision to reduce the number of work hours through a layoff may be non-CDP.  While a layoff that has an adverse impact might be protected by § 703(h) once it takes place, the decision to have a layoff might not be, even if the seniority system is bona fide.  The challenge will not be to the employer's decision to reduce the number of work hours, but to its decision to do so through a layoff rather than through worksharing or some other alternative.  When a layoff is planned or takes place and the bargaining agreement simply says that layoffs are to be made in order of reverse seniority, the issue is non-CDP. The issue is also non-CDP if the bargaining agreement also sets out the number of hours in a "normal work week" but without an explicit guarantee that employees will in fact work that much.

(3)  Unilaterally Imposed Seniority System - When the respondent employer's seniority system was created and imposed unilaterally by the employer, without agreement by a union or other employee representative, the charge is non-CDP.  This can occur when there is no union representing the employer's workers or, infrequently, when there is a union or other employee representative but the seniority system was created without the union's agreement and perhaps even over its objection.  It is not clear whether § 703(h) applies only to collectively bargained seniority systems or to other types of systems as well.  (See § 616.15.)

(b)  Perpetuation of Past Discrimination

(1)  Lines of Progression Not Part of Seniority System - When advancement within a LOP is based not on length of service in the line but on some broader measure such as plant seniority, the respondent's LOPs may not be part of the seniority system.  (See § 616.10(a).)  If the use of LOPs is nevertheless alleged to perpetuate prior discrimination, the protection of § 703(h) may not apply.  Such charges are non-CDP.

Example - In the example in § 616.18(a)(1), the reason that there are few women in the Sales Department is because, prior to 1965, Company C hired women only for jobs in the Clerical and other departments.  The use of LOPs, even though coupled with company-wide seniority, has perpetuated this prior discrimination.  This arrangement may affect whether or not the LOPS are to be considered part of Company C's seniority system and protected by § 703(h).  The issue is non-CDP.

(2)  Layoff vs. Worksharing - As with an employer's decision to reduce the number of work hours through a layoff that has an adverse impact, an employer's decision to have a layoff that perpetuates prior discrimination may be non-CDP.  (See § 616.18(a)(2) for further discussion.)

(3)  Unilaterally Imposed Seniority System - When the seniority system was implemented unilaterally by an employer, without agreement by a union or other employee representative, the issue is non-CDP.  It is not clear whether § 703(h) applies only to collectively bargained seniority systems or to other types of systems as well.  (See § 616.15.)

616.19  Investigation of Charges: Determining Whether Seniority System Is Bona Fide

Sections 604.7 and 610 explain how to determine if an employment practice such as a seniority system has adverse impact. Section 604.8 discusses perpetuation of past discrimination.  The respondent may admit to any such past discrimination, particularly if it occurred pre-Act.  If not, the EOS should determine whether any charges had been filed against the respondent with a state 706 agency or the Commission regarding the alleged prior discrimination and whether a cause LOD had been issued.  The EOS should also ask the respondent if there have been any court cases regarding the alleged prior discrimination; this information can also be obtained by looking up respondent's name in the court case indexes to the CCH Employment Practices Guide or BNA's Fair Employment Practice Cases and reading any cases listed there.  The Office of Federal Contract Compliance Programs of the Department of Labor may also be able to provide information about past discrimination.  (See Exhibit 607-E of § 607 for the addresses of the regional offices.)  If respondent does not admit to the prior discrimination and there are no Commission, state 706 agency, Department of Labor, or judicial findings that it existed, the EOS should investigate the alleged prior discrimination under the appropriate sections of this Manual.  The EOS should then determine whether the seniority system perpetuated the prior discrimination, as explained above.

(b)  Factors Relevant to Determination

(1)  Intentional Discrimination - Section 703(h) requires that the seniority system must be bona fide for it to be protected from challenge under Title VII.  In order for a system to be bona fide, any differences in treatment must not be the result of an intention to discriminate because of membership in a protected class.  James v. Stockham Valves & Fittings Co., 559 F.2d 310, 15 EPD ¶ 7842 (5th Cir. 1977), cert. denied, 434 U.S. 1034 (1978).  The James court derived four interrelated factors from Teamsters v. U.S. to be considered in making these determinations.  (Also see Taylor v. Mueller Company, 660 F.2d 1116, 27 EPD ¶ 32,161 (6th Cir. 1981); Sears v. Atchison, Topeka & Santa Fe Railway, 645 F.2d 1365, 25 EPD ¶ 31,621 (10th Cir. 1981), cert. denied, 456 U.S. 964, 29 EPD ¶ 32,672 (1982); Younger v. Glamorgan Pipe & Foundry Co., 21 EPD ¶ 30,406 (W.D. Va. 1979), aff'd per curiam, 621 F.2d 96, 23 EPD ¶ 30,908 (4th Cir. 1980); Wattleton v. Ladish Co., 520 F. Supp. 1329,  29 EPD 32,727 (D. Wis. 1981) aff'd sub nom Wattleton v. International Brotherhood of Boilermakers, Local No. 1509, 686 F.2d 586, 29 EPD ¶ 32,996 (9th Cir. 1982), cert. denied, 459 U.S. 1208 (1983); Commission Decision No. 81-3, CCH Employment Practices Guide ¶ 6761; cf. Pullman-Standard v. Swint, 456 U.S. 273 fn. 8, 28 EPD ¶ 32,619 (1982).)

(i)  Equal Operation - The seniority system must operate to discourage all employees equally from transferring between seniority units, i.e., the system must be facially neutral.

(ii) Same or Separate Bargaining Units - The seniority system must be investigated as to whether the seniority units or tracks are in the same or separate bargaining units and the reasons therefor.

(iii) Genesis - The seniority system cannot have its genesis in prohibited discrimination.

(iv) Negotiation and Maintenance - The seniority system, if negotiated, must have been negotiated and maintained free from any illegal purpose.

(2)  Types of Evidence - The investigation should focus on all of these interrelated factors.  One type of evidence that differences in treatment under a seniority system are the result of an intention to discriminate is evidence showing that the system itself was actively used as a tool for discrimination, rather than simply being a "neutral" policy that passively and coincidentally perpetuated prior discrimination; e.g., evidence that a seniority system that originally allowed retention of seniority on transfer was changed to deny it, in order to discourage transfers so as to create or maintain racially, sexually, or ethnically segregated unions, bargaining units, departments, etc, Another type of evidence is anything that would show that the hiring and assignment practices, collective bargaining structure, and/or organizational structure underlying the seniority system were manipulated in a discriminatory manner, with the employer and/or union knowing or perhaps even relying on the seniority system to then "passively" maintain and further that discrimination; e.g., evidence of the deliberate creation of one-race departments, knowing that the neutral seniority system would preserve that segregation.  Sections 616.20 through 616.23 will discuss the above four factors and give more specific examples of the types of evidence that can indicate intentional discrimination.

An investigation as to whether a seniority system is bona fide can be quite complex and will often involve interpretation of a variety of legal issues.  The EOS should therefore work closely with the district office's legal division.

(3)  Totality of Circumstances - After investigation the EOS should consider the evidence on all four factors.  If the totality of the circumstances indicates that the system was not developed in a neutral fashion but rather as a means of discriminating or of perpetuating prior discrimination, then the EOS should conclude that the system is not bona fide, James v. Stockham Valves, 559 F.2d at 352, 15 EPD at p. 6194; cf. Pullman-Standard v. Swint.  Even if only one of the factors isn't satisfied, if the circumstances surrounding that factor clearly show intent to discriminate then the system is not bona fide.  Wattleton v. Ladish Co., supra; Sears v. Atchison, Topeka & Santa Fe Railway, 454 F. Supp. 158, 17 EPD ¶ 8,413 (D. Kan. 1978); Chrapliwy v, Uniroyal Inc., 458 F. Supp. 252, 15 EPD ¶ 7,708 (N.D. Ind. 1977), reconsid. denied, 15 EPD ¶ 7,933 (N.D. Ind. 1977).

In Teamsters v. U.S., the employer had long distance "line drivers" and short haul "city drivers."  Line drivers were paid more than city drivers.  Under the collectively bargained seniority system, any employee transferring from city to line driving or line to city driving would lose his/her seniority in the prior track.  Most of the line drivers were White, while Blacks were only city drivers; however, many Whites were also city drivers.  Because both Black and an even larger number of White city drivers were equally discouraged from transferring to the more attractive line driver positions, the Supreme Court held that the system operated equally.

In Miller v. Continental Can Co., Blacks were originally hired for certain relatively low paying positions in the Woodyard Department, whereas Whites were hired for more desirable jobs in other departments throughout the plant.  In fact, Blacks in the highest paying Woodyard positions would earn less than Whites in most of the relatively junior positions in the other departments.  Any worker would have to sacrifice all or most of his/her seniority in order to transfer to another department and would have to begin at the bottom of the line of progression in that department.  Because all (or most) of the White workers were already in more desirable jobs or in lines of progression that would quickly lead to them, they had little desire to transfer. Blacks, however, had good reason to transfer, in order to obtain better jobs with increased opportunities for advancement.  When the discrimination in hiring and assignment ended and Blacks were finally allowed to transfer though, the loss of seniority and reduction in pay involved (the latter even though temporary) discouraged them from doing so.  The seniority system's locking in effect, then, was more likely to serve as a disincentive to Blacks. The system was held to not operate equally.  This was also true in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d at 1373, 25 EPD at p. 19,607.

In Taylor v. Mueller Co., the seniority system was changed in 1965 to allow use of plant seniority for some competitive purposes while retaining departmental seniority for other competitive purposes.  This reduced the disincentive to transfer somewhat and a large number of Blacks in fact transferred into the formerly all-White department.  The court held that the modified system had accounted for the significant integration of the department and that this was evidence that the system was bona fide.  However, in other situations the fact that a large number of minorities or women actually transferred may not mean that the system applied to all groups equally.  On the one hand, as in Taylor, if a large number of Blacks have actually transferred it could be an indication that Blacks have not been locked in or at least have not perceived themselves as being locked in.  On the other hand, it could also mean that the desirability of the White jobs was so much higher relative to that of the Black jobs that Blacks were willing to sacrifice seniority and/or pay in order to improve their lot.  Similarly, if a small number of Blacks have actually transferred it could be an indication of the existence of obstacles locking them in to their present jobs, or it could mean that their present jobs are not less desirable than the White jobs. This also holds true for Whites and White jobs.  The EOS will be able to determine which of these possibilities applies by comparing the actual numbers of White versus Black transfers and by comparing the relative desirability of the jobs.

Example 1 - Respondent Railway Company employs porters and brakemen.  Brakemen make more money and can retire sooner than porters.  Prior to 1965, R only hired Whites as brakemen and Blacks as porters.  There is one seniority roster for brakemen and another for porters.  Until 1965, no transfers between jobs were allowed.  Afterwards, an employee transferring from one job to another would lose his/her seniority on the prior roster. Very few Black porters have transferred to brakemen jobs.  Interviews with porters reveal that the porters feared that they would be more likely to be laid off if they lost their seniority by transferring.  No White brakemen have transferred because, in the words of one brakeman, "Why transfer to such a crummy job?"

This would be strong evidence of locking in, and would indicate that the seniority system did not operate equally.

Example 2 - Consider the same employment situation as in the above example except that, in 1969, R eliminated half of its passenger service. Because porters only work on passenger trains, a large number of them were to be laid off.  In anticipation of this, a large number of Black porters did transfer to brakemen positions in 1968 and 1969, taking a cut in pay and a loss of seniority.  Again, no White brakemen transferred. In this case, the desirability of the brakemen jobs was so much greater than that of the soon-to-be reduced porter jobs that Blacks transferred despite the locking in effects of the system.  The correct conclusion in this case is also that the system did not operate equally.

Example 1 - Respondent trucking company hires long distance drivers and city drivers.  Long distance drivers are paid an extra per-mile premium in addition to their base salary, while city drivers earn just their base salary; a long distance driver will usually earn more than a city driver.  Each type of job has its own seniority track and an employee transferring from one track to the other loses previously earned seniority.  Prior to 1968, R refused to hire women as long distance drivers and only hired them as city drivers.  R hired men as both long distance and city drivers.  In 1968, as a result of a charge of discrimination, R stopped discriminating against women and began hiring them as long distance drivers, a woman already employed by R as a city driver could transfer to long distance driving but would lose the seniority earned as a city driver.  In 1971, a female city driver filed a charge of discrimination alleging that the seniority system perpetuated the earlier discrimination by locking women in city driver jobs.  As in the first example in § 616.20(a)(1), the seniority system would seem to operate equally: there were both male and female city drivers, and city drivers of both sexes were equally discouraged from transferring to the more attractive long distance positions.  However, investigation discloses that R has allowed a number of male city drivers to transfer and retain most of their previously earned seniority.  R has not allowed women to do this.  Because of this disparate treatment, the system has not operated to equally discourage men and women from transferring.

Example - R has two seniority tracks, one for welders and another for packers.  Due to past discrimination, all the welders are men, while 70% of the packers are men and 30% are women. Because so many male as well as female packers are discouraged from transferring to the better paying welder jobs, the system operates equally. However, if it can be shown that the seniority tracks were intentionally created or manipulated to perpetuate the past discrimination that excluded women from welder jobs, then the seniority system will not be bona fide.  This could be so if the systems were in the same or in separate bargaining units.  (See § 616.21(c) below.)

(1)  If the interests of the employees are sufficiently alike for them to be included in the same bargaining unit, there must be some reason for creating separate seniority tracks within the unit.  When the tracks are segregated by race, sex, or national origin in this way, there is a presumption that there can be no other reason for creating separate tracks than an intention to discriminate or to perpetuate prior discrimination against one of the protected classes.  When the seniority tracks are in separate bargaining units, however, other, nondiscriminatory reasons can exist, even when the tracks are extremely segregated.  (See § 616.21(c).)  Russell v. American Tobacco Co.

(2)  The same degree of segregation might exist when the seniority tracks are in separate bargaining units.  When it is clear that the original bargaining units were intentionally drawn along racial, ethnic, or sexual lines, there is an indication that the seniority system is not rational.  This is the view taken by the appellate court in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d 1365.  However, this indication is not conclusive as to whether a system is rational or bona fide; there must be additional evidence as described below.

(1)  Similar Relation to Production Process - Many of the relevant factors can be considered in light of the production process or processes at the respondent's installations.  Are the bargaining units (whether plant, departmental, or craft) related to the production process?  Do the seniority tracks (whether departmental, craft, job, etc.) within the bargaining units reflect this relationship?  Taylor v. Mueller Company.  Relevant to these determinations are similarities in the kind of work performed and in the skills, qualifications, and training of the employees doing the work.  The geographic proximity of employees can be important if employees at different plants perform different steps in the production process.  Specifically, if a respondent has a number of plants or departments, with each plant or department performing a separate step in the production process, then having separate bargaining units and/or seniority tracks for each plant or department would be rational.  This would be based on the similar duties and functions performed by the employees in each plant or department, all related to the step of the production process undertaken at that plant or department.  Similarly, if all employees in a particular job or craft work on the same step of the production process, or perform similar duties and functions at various stages of the production process, then separate bargaining units and/or seniority tracks would be rational.  In each of these situations there are clearly defined, homogeneous, and functionally distinct groups with separate interests.

Example 1 - R has a departmental seniority system at its Balmer plant.  A number of R's departments are represented by the International Association of Carpenters (IAC) and constitute one bargaining unit; most of the other departments are represented by the United Maintenance Association (UMA).  A number of the departments involving production and manufacturing are represented by the IAC.  All of the departments having anything to do with maintenance, security, and plant safety are represented by the UMA.  Each department has its own seniority track.  It is rational for the seniority tracks in the IAC-represented departments to be separate from those in the UMA-represented departments, due to their respective relationships to the production processes and the types of duties involved. Whether the seniority system as a whole is bona fide will depend on whether it is rational to have a separate seniority track for each production-related department (involving a comparison between those departments), and a separate track for each maintenance-related department (involving a comparison between those departments).  (See next example.)

Example 2 - In the above example, the United Wood Workers (UWW) also represents a number of departments at the Balmer plant involved in production-related work.  In fact, R has two Glue Departments, one represented by the UWW and the other by the IAC.  Similarly, there are two Dowel Departments, one represented by the UWW and the other by the IAC.  The employees in each of the Glue Departments do substantially the same work; this is also true for the employees in the two Dowel Departments.  This departmental structure is not rationally related to the production process because it is duplicative.  The departmental seniority system therefore may not be bona fide, although this will also depend upon the seniority practices of other employers engaged in the same industry.  (See § 616.21(e).)  This situation was found to exist by the appellate court in Sears v. Atchison, Topeka & Santa Fe, 645 F.2d 1365, where one of each of the duplicate departments was all-White and the other was all-Black.

If the production process is one continuous operation, a seniority system with more than one seniority track may not be rational.  In Miller v. Continental Can Co., the company was engaged in the manufacture of pulp and paper products.  The court found that the company had practiced widespread discrimination in its hiring practices in the past and that the company's facially neutral seniority system perpetuated that discrimination.  The company was divided into departments according to functional lines, with each department having one or more LOPs and with each LOP having a separate seniority track.  During the period of prior discrimination, Blacks were only hired into one of the two LOPs in the woodyard department, while Whites were hired into the other LOP in the woodyard department and into LOPs in other departments.  Seniority was based on length of employment in a particular LOP, with no transfer of seniority allowed between LOPs.  The result was to lock employees into the LOPs in which they were originally hired, e.g., Blacks hired into the Black LOP in the woodyard department were discouraged from transferring to the White LOP in the woodyard and into LOPs in other departments.  One union represented all the employees in the woodyard department and in two other departments as one collective bargaining unit; therefore, there were a number of seniority tracks in the same unit.  The same union represented a collective bargaining unit of employees in three other departments, and other unions represented employees in yet other departments; therefore, there also were seniority tracks in separate bargaining units.  In holding that the seniority track structure in the woodyard was not rational, the court found that there was no clear division of function between the two LOPs in that department.  In other words, because the production process was one continuous operation, there was no justification for having two separate LOPs.  Because the LOPs were divided between races, the court stated that the implication was that the real reason for having two woodyard LOPs was not production but race.  Because seniority was based on length of employment in a particular LOP, this was an indication that the seniority system was not bona fide.

(2)  Similarity of Pay Scale - Another factor that will indicate whether employees' interests are disparate enough to justify separate bargaining units and/or seniority tracks is the manner of determining earnings and the pay scale.  If these are the same for two units and/or tracks, it is an indication that having separate units and/or tracks is not rational.  If the manner of determining earnings and the pay scale are the same, then employees may well want to be represented together in negotiations over pay-related matters.  Similarly, it would be reasonable for the employer to treat the employees the same for seniority purposes, at least for those seniority matters dealing with pay.

Example 1 - Salespeople at Company A are paid on commission, receiving a percentage of everything they sell.  Other employees are paid a straight salary.  This is one indication that it would be rational to have a separate bargaining unit and/or seniority track for salespeople.  Office workers in the administrative division are paid a weekly salary, while employees in the production and maintenance divisions are paid by the hour.  This can be an indication that, as regards the pay factor, office workers have different interests than production and maintenance workers.  This is supported by the factor of relation to the production process and job duties.  (See § 616.21(d)(1).)  However, office workers' salaries are based upon a 40 hour work week; production workers, though paid by the hour, are guaranteed and in fact must work 40 hours per week; maintenance workers, also paid by the hour, work on an "as needed" basis (often less than 40 hours per week) and are only paid for work actually performed.  Because the pay of both office workers and production staff are based on 40 hour weeks, it could also be rational to view them as having a community of interests separate from the interests of maintenance workers.

Example 2 - The federal government has a number of pay scales.  The General Schedule (GS) scale is for professional, clerical, administrative, and technical employees --  so-called "white collar workers."  The Wage Grade (WG) scale is for plumbers, carpenters, other crafts-people, and general laborers -- so-called "blue collar workers." The pay ranges on the two scales are different, as are the methods in which the scales are set.  Moreover, a particular employee's place on the GS scale and how that employee can move up or down the scale is determined in a different manner than for a WG employee; different weights are given to experience, length of employment with the government, performance evaluations, etc., for each pay scale.  It would be rational to consider employees in each scale as having common interests, those interests being separate from the interests of employees in the other scale.  This would be one indication of the rationality of bargaining units and/or seniority tracks based on pay scales.

(3)  Similar Terms and Conditions of Employment - Another indication that having separate bargaining units and/or seniority tracks is rational is if employees in the units or tracks have different employment benefits, hours of work, and/or other terms and conditions of employment.  The greater the difference, the more reasonable it is to have separate units or tracks.  There are a number of reasons for this.  As the differences between employees' benefits, terms, and conditions increase, the less they have in common to bargain about and the more reasonable it is for the employer to treat them differently.  Further, seniority can control vacation leave, order of layoff, promotion, transfer, recall, pensions, rates of pay, hours of work, and other benefits, terms, and conditions of employment.  (See § 616.3(b).)  As the differences in these benefits, terms, and conditions increase between various groups of employees, the more reasonable it becomes to treat these groups separately for seniority purposes.

Example - Employees in R's Maintenance and Production Departments work from either 8:00 a.m. to 4:30 p.m. or 4:30 p.m. to 1:00 a.m. Most employees would prefer to work the day shift but only one half can.  The employees in both departments have to compete with one another for the day shift.  Because employees in both departments work the same hours (either the day or night shifts), it would be rational for R to have one seniority track for both departments, with competition for the day shift based on length of service in either department.  Employees in R's Security Department can only work from 12:30 a.m. to 9:00 a.m. On the basis of similarity in hours, it would be rational to have a separate seniority track for employees in this department.  R need not base its seniority track structure just on work hours, however, particularly if similarities and differences in other terms and conditions of employment, and in the other factors discussed above such as relationship to the production process, would call for another arrangement.  But hours of work would, in this example, make this type of structure a rational possibility.

(4)  Other - The other factors listed in § 630.3(c) also can be relevant in determining whether a respondent's seniority track structure is rational.  These other factors may not be as important in this regard as the employees' relationship to the production process, similarities in pay, and similarities in other terms and conditions of employment, but the EOS should investigate them nonetheless.  The other factors include: frequency of contact or interchange among employees; geographic proximity even if unrelated to the production process, e.g., combining all the salespeople in one region into one seniority unit; common supervision and determination of labor-relations policy; relationship to the employer's administrative organization; the history of collective bargaining (see §§ 616.22 and 616.23), desires of the affected employees; and the extent of union organization.

(5)  Resource Materials - In considering whether a particular seniority track arrangement is rational, the EOS should obtain information on the above factors for the period immediately prior to creation of the respondent's first seniority system through the present.  The seniority track arrangement must have been rational at its creation and must still be rational.

(i)  Information on the above factors can be derived from a number of sources, including: job descriptions, annual corporate reports, charts of the respondent's organizational structure; EEO-1 et seq. reports and other documents showing the racial/sexual/ethnic composition of the respondent's workforce by job, department, plant, etc.; collective bargaining agreements and materials pertaining to the history of collective bargaining; and interviews with affected employees.

(ii) A decision by the National Labor Relations Board (NLRB) that a particular bargaining unit and/or seniority structure is appropriate should be given great weight.  The NLRB office nearest the respondent can provide copies of any such decisions.  (See Appendix A for addresses.)  However, when the other factors addressed by §§ 616.20 through 616.23 run counter to the NLRB decision, that decision can be outweighed.  (In certifying that a bargaining unit is appropriate, the NLRB does not consider issues relating to discrimination; see § 630.9.)

(iii) Also relevant is information showing whether the seniority track structures at respondent's other plants differ from the one being challenged as discriminatory.  (See § 616.21(e).)

Example - In Examples 1 and 2 in § 616.21(d)(1), all or most of R's other plants have only one Glue Department and one Dowel Department.  The work and production processes at these other plants are similar to those at the Balmer plant. This is further evidence that the seniority system at the Balmer plant is not rationally related to the production process.

(iv) These and other possible sources of information are discussed in more detail in §§ 616.22 and 616.23.

Example - Spud Inc., has eight plants around the country, each one making potato chips.  There are seven other companies in the country that make potato chips, with a total of 56 plants.  All of Spud's plants have departmental seniority systems.  Prior to 1965, Spud only hired Blacks as Cutters and Whites as Fryers; this practice ended in 1965.  At Spud's Boise plant, Cutters are in one department and Fryers are in another; the departmental seniority system has therefore perpetuated the pre-1965 discrimination.  However, at Spud's seven other plants the Cutters and Fryers are all in the same departments, and employees in each job have been able to change jobs without loss of seniority.  While all of Spud's plants have departmental seniority systems, this difference in departmental organization alone is enough to prove that the system at the Boise plant is not in conformance with industry practice.  Moreover, 48 of the 56 plants of the other companies have plant-wide seniority systems.  This difference alone is also enough to prove that the system at Spud's Boise plant is not in conformance with industry practice.

(1)  Regional Differences - In investigating seniority practices within a particular industry, the EOS should pay particular attention to regional differences.  Certain industries, in the past and even to this date, have had different seniority systems at their plants in one part of the country than at their plants in another part.  For example, as in the Miller case discussed below, Northern plants in a particular industry may have more flexible seniority systems, while the Southern plants may have restrictive ones, e.g., plant- or company-wide in the North versus departmental, line of progression, craft, or job in the South; or plant- or company-wide or departmental in the North versus line of progression, craft, or job in the South.  Investigation will sometimes reveal a history of a high degree of segregation in the plants in the region with the more restrictive systems, with Blacks historically hired for less desirable jobs and then locked in to those jobs because of the restrictive seniority systems.  Plants in the regions with less restrictive systems, on the other hand, may be more integrated, with less discrimination in initial hiring and less or no subsequent locking in.  The reason for the greater segregation in the region with the more restrictive system will often be the deliberate historic exclusion of Blacks from certain jobs, crafts, lines of progression, or departments.  As will be explained in § 616.22, the fact that this historical discrimination in hiring and assignment is perpetuated by a seniority system does not in itself make the system discriminatory.  Taylor v. Mueller Company, Sears v. Atchison, Topeka & Santa Fe R.R., 454 F. Supp. at 179, 17 EPD at p. 6209, citing U.S. v. Teamsters.  However, depending upon the degree of segregation within the industry and the degree of difference between the regions, this regional difference can be at least one indication that a restrictive system was intentionally created to further the prior discrimination in hiring.  Miller v. Continental Can Co., 544 F. Supp, at 227, 25 EPD at p. 19,234.

The court in Miller had found that the seniority track structure in the woodyard department was not rational, as it was not related to the production process.  (See § 616.21(d)(1).)  It concluded that this was a strong indication that the seniority system was not developed in a neutral fashion, but instead as a means to continue the prior discrimination.  Seniority in the woodyard department and in the other departments was based on length of employment in a particular LOP.  The court also considered whether the defendant employer's seniority track structure was in conformance with industry practice.  In doing so, it looked at seniority systems at other pulp and paper plants and particularly at the differences between the seniority systems at Northern and Southern plants.  The defendant employer's plant was located in the South.  The one union that represented all employees in defendant employer's woodyard department also represented employees in all other plants nationwide.  This made the court's comparison relatively simple -- all it had to do was compare contract provisions dealing with seniority at each of the plants.  The result was that, in the South, 65 plants had LOP or job seniority systems while 14 plants had less restrictive departmental, plant, or company systems.  In the Northeast and Midwest, where most pulp and paper plants were located, 95 plants had LOP or job systems while 137 plants had less restrictive systems.

Based on this, the court concluded that paper mill seniority arrangements in the South (including the one at the defendant employer's plant) are not typical of those found in other parts of the country.  Systems at the Southern plants are more likely to support past discrimination, based on the predominance of restrictive systems in the South versus the predominance of broader systems in the North.  The court therefore found that, even though the seniority system at defendant employer's plant did conform to industry practice in the South, the regional differences gave rise to a strong implication that the system was developed not in a neutral fashion but as a means to provide for continuation of the prior discrimination.

(2)  Resource Materials - In investigating whether a seniority system conforms to industry practice, the EOS should use the following publications.

The Department of Labor's Bureau of Labor Statistics has issued a number of pamphlets, books, and bulletins describing or summarizing seniority provisions in various industries.  These include:  Characteristics of Major Collective Bargaining Agreements (issued intermittently from 1970 on); Major Collective Bargaining Settlements in the Private Sector (issued quarterly); Major Collective Bargaining Agreements:  Layoff, Recall, and Worksharing Procedures (Bulletin No. 1425-13, 1972); Major Collective Bargaining Agreements:  Seniority in Promotion and Transfer Provisions (Bulletin No. 1425-11, 1970); Collective Bargaining Provisions:  Seniority Provisions, by Abraham Weiss and Eleanor Lehrer; and other publications on collective bargaining in a wide variety of industries.  These publications are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.  They are also available from the regional office of the Bureau of Labor Statistics; the addresses are provided at Appendix B.  When contacting a regional office, the EOS should explain what industry (s)he is concerned with, so that the regional office can provide any publications it might have on that specific industry.

Another helpful publication is issued by the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), Comparative Survey of Major Collective Bargaining Agreements, Manufacturing and Non-Manufacturing.  It is issued about every 18 months and is available from the AFL-CIO, Industrial Union Department, 815 16th Street, N.W., Washington, D.C. 20006 (202-842-7800).  The Bureau of National Affairs (BNA) publishes Basic Patterns in Union Contracts (10th edition, 1983).  It is available from BNA at 1231 25th Street, N.W., Washington, D.C. 20037 (202-452-4523), and at most law libraries.  Tab 75 on "Seniority" and Tab 20 on "Selected Contracts in Text" are most helpful.

The union or unions at a respondent's plants may be able to identify all the employers and unions engaged in a particular industry, and provide information about the types of seniority systems at all of the respondent's plants and throughout the industry.  Most helpful in this regard is the collective bargaining agreement for each installation.  If one union represents employees throughout the industry, the EOS should compare the agreements for the entire industry (for an example, see § 616.21(e)(1) for a discussion of how the court did this in Miller).  If a number of unions are involved, the EOS should also compare the agreements for the entire industry.  If the unions involved cannot provide the necessary agreements, the Bureau of Labor Statistics may be able to do so.  Also helpful in this regard may be the union's constitutions and by-laws.  (See § 616.22.)

Another source of industry-wide information is the National Labor Relations Board (NLRB).  (See Appendix A for addresses.)  As explained in § 616.21(d)(5)(ii), decisions by the NLRB regarding the respondent or others in the industry should be given great weight.  However, when the factors addressed by §§ 616.20 through 616.23 run counter to an NLRB decision, the decision may be outweighed.  (See § 630.9.)

Finally, the Office of Federal Contract Compliance Programs of the Department of Labor may be able to provide information about seniority arrangements at a particular company or in a specific industry, and whether these arrangements have ever been found to be discriminatory in the past.  (See Exhibit 607-E of § 607 for the addresses of the regional offices.)

Other useful information is discussed in § 616.22.

Any direct evidence of intent that the EOS can obtain will be most helpful, e.g., documents from the period when the system was created that acknowledge this discriminatory purpose, or testimony from individuals who were involved in developing and negotiating the system.  More frequently, however, the EOS should expect to have to obtain evidence from which an implication or inference of discriminatory purpose can be made.  Much of the information obtained in §§ 616.20 and 616.21 will also be useful in determining whether the seniority system had its genesis in racial discrimination.

Example - An employer has an announced policy of promotion based entirely on seniority.  The employer also has a policy of hiring Hispanics only for night shifts.  The union is aware of this latter policy, but enters into a collective bargaining agreement with the employer that awards seniority based only on day work.  The result is that Hispanics can never get any seniority and therefore can never be promoted. The hiring policy is discriminatory and the supposedly neutral seniority system perpetuates that discrimination.  But the system in fact is not neutral.  The employer and the union have announced seniority as the basic criteria for promotion, and then knowingly and intentionally manipulated this factor to prevent advancement by Hispanics.  The seniority system was created as an independent instrument of discrimination and is therefore not bona fide and not protected by § 703(h).

This argument will frequently be legitimate.  It can be defeated, however, when there is evidence that the system was intentionally created to discriminate.  The system will not be bona fide if there is evidence showing that it was more than a reflection of the employer sponsored, industry-wide, or societal discrimination, and was actually created with the intent that it be a part of, and that it perpetuate, that discrimination.  Factors that bear on this are set out in the following subsections.

Example - The two unions involved in the initial organizing of the employer each signed a separate collective bargaining agreement with it, with separate but similar seniority systems.  At the time of the initial organization effort, the bargaining unit represented by Union #1 was predominantly White but did have 24 Black carpenters.  The unit represented by Union #2 contained both Black and White workers.  Before any bargaining agreements were signed, Union #1 initiated a "trade" with Union #2 of 24 of Union # 1's Black carpenters for two of Union #2's White workers.  Union #2 agreed, apparently in order to increase its membership.  One result was that carpenters in certain departments were White and were represented by Union #1; carpenters in other departments were Black and were represented by Union #2.  Another result was that Union #1 became an all-White bargaining unit; Union #2 on the other hand, remained racially mixed, although with segregated departments.  This is evidence of an intent to foster and maintain discrimination on the part of the Union #1 which became all-White, and would taint the bargaining agreement and seniority system negotiated by the union.  Absent other evidence, Union #2's agreement to the swap does not indicate a discriminatory motivation on its part.  On this point see Pullman-Standard v. Swint, 456 U.S. 273, 292 fn. 23, 28 EPD ¶ 32,614 (1982).

In Miller v. Continental Can Co., one union (UPIU) represented several bargaining units while other unions represented other bargaining units.  (See discussion of case in § 616.21(d)(1).) The woodyard department was originally divided into two bargaining units, with one unit for each of the two LOPs in the department. Because the LOPs were segregated along racial lines, one bargaining unit was all-White and the other was all-Black.  Both units were represented by UPIU.  In 1965 the two units were merged but the segregated LOPs were retained.  Seniority was determined by length of employment within a particular LOP (and therefore bargaining unit) and was not transferable between LOPs.  UPIU represented employees at paper plants (the industry Continental Can was engaged in) throughout the country.  Seniority systems in the South were the most restrictive.  (See discussion of case in § 616.21(e)(1).) This was where Continental Can was located, and was precisely the area where UPIU maintained segregated bargaining units.  A union official admitted that this policy was developed knowingly and directly out of the segregated work arrangements which prevailed in the South generally and particularly in the Southern paper industry.  Had the union insisted on integrated locals, according to this official, it would not have been able to recruit both Whites and Blacks as members.

In order to increase its membership and facilitate organizing at various plants, the international union decided that the plants in the South could have separate bargaining units (and therefore separate locals) based on race.  In agreeing to allow the locals to be segregated and represent segregated bargaining units, the court stated, the international union also agreed to the company's admittedly racially based hiring and assignment policies. This segregation of the bargaining units not surprisingly resulted in segregated seniority systems: at Continental Can, the White woodyard bargaining unit/local negotiated a separate seniority roster from the Black bargaining unit/local, in order to protect the jobs of its members from those holding jobs in other LOPs/units (including, if not especially, the Black LOP/unit).  All this, the court held, showed that the seniority system had its genesis in racial discrimination.  The racial views embodied by these arrangements were more than merely the social context in which the employer's plant was organized.  They were the basis for a plant organization which presumed that Blacks should only have the most menial and poorest paying jobs.  While the union may have deplored the company's hiring and assignment policies, it nevertheless agreed to them in allowing segregated bargaining units and in agreeing to a seniority system that ensured that Blacks would be locked in to the less desirable jobs.  (See § 616.22(f) for the consequences of this agreement.)

Example - In the example in § 616.22(c), Union #1 and Union #2 juggled the composition of their respective bargaining units so that Union #1 became an all-White bargaining unit and union. Union #2 represented both Black and White employees in its bargaining unit.  However, prior to and at the time of unionization, most of the jobs at the plant were treated as "White only" or "Black only." Some of the small number of "mixed" jobs even had different pay scales for Whites and Blacks.  A number of one-race departments were created at the time of and as part of the original unionization, including departments within Union #2's own bargaining unit.  When Union #2 subsequently signed its first bargaining agreement with the employer, the bargaining agreement provided for departmental seniority for all the workers in the bargaining unit Union #2 represented.  This would perpetuate the recently created one-race departments.  Moreover, the agreement further excluded Blacks from the better jobs, assigning them to the poorest paying departments.  These one-race departments were all created out of previously mixed departments.  This all happened at the same time as the original unionization and at the same time as creation of the departmental seniority system.  This course of events is an indication that the system had its genesis in racial discrimination and that an intent to discriminate played a part in negotiation and creation of the seniority system.

One way that segregated jobs, crafts, LOPs, or departments can come about (and/or be maintained; see § 616.23) is through segregated unions, as demonstrated in both the district court and appellate decisions in Sears v. Atchison, Topeka & Santa Fe R.R.  From at least the 1930's through the 1960's the constitutions of the unions representing brakemen and conductors contained clauses allowing only Whites to be members.  While the employer technically had an open shop so that non-union members could be hired, the union was strong enough to force the employer to hire only union members.  (See §§ 630.10 through 630.13 for a discussion of how a union can do this.)  Since Blacks could not become union members, they could not get jobs as brakemen or conductors, and they could not be eligible for the economic protection of the craft seniority system covering brakemen and conductors.  This relationship indicates an intent to keep the brakemen and conductor crafts and jobs all-White.  If this situation had existed at the time the bargaining agreement was originally negotiated, it would have indicated that the bargaining agreement and the seniority system included in it had their genesis in racial discrimination.

In U.S, v. Georgia Power, 634 F.2d 929, 25 EPD ¶ 31,527 (5th Cir. 1981), vacated and remanded on procedural grounds, 456 U.S. 952, 28 EPD ¶ 32,672 (1982), reaffirmed, ____ F.2d ____, 30 EPD ¶ 33,286 (5th Cir. 1983), the Court of Appeals found that the seniority system had its genesis in an era of overt racial discrimination at Georgia Power.  Blacks were prevented by express policy from holding all but the four least desirable jobs.  These were also the only jobs not connected to any LOPs; the White jobs were all part of LOPs which permitted those employees to exercise their seniority to progress up the ladder.  The court stated: "...the seniority system ... tracked and reinforced the purposefully segregated job classification scheme maintained by the company and the conclusion is inescapable that the seniority system itself shared in that same unlawful purpose.... [The seniority system] was but part and parcel of the total package of purposeful discrimination at Georgia Power." 642 F.2d at 936, 25 EPD at p. 19,146.  This was an indication that the system had its genesis in discrimination and was at least in part negotiated and created with a discriminatory intent.

(f)  Acquiescence

(1)  When a union agrees to discrimination by an employer, then it is not fulfilling its duty of fair representation under Title VII.  In the context of collective bargaining, it will generally also make the union jointly liable with the employer for the original discrimination.  (See § 630. 16 and the cases cited therein.)  This also applies to an employer agreeing to discrimination by a union: "Title VII requires that both union and employer represent and protect the best interests of minority employees.... [I]f a discriminatory contract provision is acceded to the [employer] as well as the [union] will be held liable." Robinson v. Lorillard Corp., 444 F.2d 791, 799, 3 EPD ¶ 8,267 at

p. 6901 (4th Cir. 1971). cert. withdrawn, 404 U.S. 1006 (1971).  If one party to a bargaining agreement proposes seniority provisions that are intentionally discriminatory, then the party on the opposite side of the bargaining table is under a duty to oppose the provisions; failure to do so will make the second party jointly liable for the discriminatory seniority system.  The system will have been negotiated with a discriminatory intent.

In Miller v. Continental Can (see § 616.22(d)), the union acquiesced to the employer's racially-based hiring and assignment policies.  Its acquiescence was most notably demonstrated in its creation of segregated bargaining units.  The employer's policies were more than mere reflections of the overall social context in which the plant was organized.  They were the basis for a plant structure which presumed that Blacks were unsuited for all but the most menial jobs.  The policies were embodied in a seniority system which not merely reflected this discriminatory view, but insured that the view would never be challenged by preventing Blacks from becoming eligible for promotion to the better jobs.  Because the union agreed to these policies by creating segregated locals, and then agreed to a seniority system that perpetuated the policies, the system was found to have had its genesis in discrimination.

(2)  In Miller, there was also evidence that the union agreed to discrimination not by an employer sitting on the opposite side of the bargaining table but by other unions.  This is discussed in more detail in the example in § 616.22(c) above.  The two unions participated in a "trade" that left Union #1 all-White and Union #2 racially mixed.  Even though Union #2 did not initiate this "trade" and remained racially mixed, it agreed to it in order to increase its membership.  Union #2's acquiescence may have helped create a climate of discrimination, possibly giving the seniority system it subsequently bargained for a genesis in racial discrimination.  While this sort of acquiescence would not by itself conclusively demonstrate a discriminatory purpose on Union #2's part, Pullman-Standard v. Swint, 456 U.S. 292 fn. 23, 28 EPD at p. 24,762, it leaves open the possibility that the acquiescence could nevertheless be one more indication of discriminatory intent.

Another rationale for basing liability at least in part on acquiescence is to view the issue in terms of the union's duty of fair representation.  The Fifth Circuit took this approach in Terrell v. United States Pipe and Foundry Co., 644 F.2d 1112, 26 EPD ¶ 31,856 (5th Cir. 1981), vacated and remanded on other grounds, 456 U.S. 955, 29 EPD 32,672 (1982).  The overall seniority system was a composite of separate agreements between the employer and each of the five unions.  The court held that a union can be liable for discriminatory seniority provisions in another union's bargaining agreement, even though the first union did not sign that agreement.  The discriminatory provisions in this case provided that an employee transferring into a job covered by the agreement would be put on the bottom of that seniority roster, losing all seniority in jobs covered by other bargaining agreements.  The reason for the shared responsibility is that the first union is under an obligation to represent its own members (see §§ 630.14 et seq.).  The court quotes Myers v. Gilman Paper Co., 544 F.2d 837, 13 EPD ¶ 11,300 (5th Cir. 1977), which in turn quotes Carey v. Greyhound Bus Co., 500 F.2d 1372, 8 EPD ¶ 9,698 (5th Cir. 1974), to the effect that the first union must at some point try to initiate negotiations with the employer and perhaps the other union, in an effort to prevent its own members from losing seniority should they transfer to jobs represented by the other union.  If the nonsignatory union (the first union) fails to make these efforts, then it will share in the liability for the discriminatory provisions in the signatory union's agreement.  However, if the first union does try, then, even if its efforts are unsuccessful, it may not be liable.  (See § 630.18(d) on defenses to the charge of failure to represent.)

(3)  In Terrell, the court held that the union had in fact tried hard enough to protect its members from discrimination that would occur because of the other unions' bargaining agreements.  In Miller, while there was evidence that the union "deplored" the company's racially-based views and policies, it nevertheless agreed to them without very much opposition.  A union or an employer that agrees to discrimination by another party to a collective bargaining agreement, even if under protest, will frequently also be found to be a participant in and liable for the discrimination.  Burwell v. Eastern Airlines, 458 F. Supp. 474, 18 EPD ¶ 8,759 (D. Va. 1978).  There will be certain situations, though, when one party will not be found liable; e.g., when the union or employer does more than simply protest but opposes the discrimination through concerted, aggressive action of a compelling nature, or when the collective bargaining agreement was forced on one party by the other.  See "Title VII and Collective Bargaining: Proposal and Resolution to Encourage Voluntary Effort" at Exhibit 630-A.  This also applies to situations such as that in Terrell, where a union acquiesces in discrimination by another union, but only after vigorous opposition.  (Examples and more detailed discussion of this can be found at § 616.24 on liability and § 630.18(d) on defenses an employer or union can raise to a charge of failure to represent the interests of minorities and women.)

In examining union actions and documents, the EOS should consider both the parent international union and the local chapter.  The EOS should first look at the initial certification process, i.e., when the union (or unions, if the company was organized by more than one) was formally recognized as representing all or some of the employees.  The employer can simply agree that the union represents its employees, this recognition will usually be made in a letter or memo.  (See §§ 630.2, 630.3, and 630.9.)  The EOS should obtain this, along with all related correspondence, from the union or the employer.  Alternatively, the employer and/or union can ask the National Labor Relations Board to decide if the union is the proper employee representative.  (See §§ 630.2, 630.3, and 630.9.)  If the union was certified as the employees' representative by the National Labor Relations Board, the EOS should obtain a transcript of the Board's certification hearing (usually including a discussion of which jobs are to be included in or excluded from the unit, and why), submissions to the Board by the union and the employer, and the Board's final decision.  If the employer or union does not have these, they can be obtained from the nearest regional office of the Board.  (See Appendix A for addresses.)

The EOS should obtain copies of the constitution and bylaws in effect at the time of unionization, of both the local chapter and the international union.  If the union is unable to provide these, they can often be obtained from the Labor Management Services Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.  The EOS should obtain a copy of the first collective bargaining agreement with the employer; if the employer and union do not have it or will not provide a copy, the EOS should contact the regional office of the Bureau of Labor Statistics of the Department of Labor (see Appendix B for addresses) or its headquarters at 441 G Street, N.W., Washington, D.C. 20212.  The EOS should obtain from the company or union all negotiation memoranda, voting records, and anything else related to the contract negotiation process.  Any employees, union officials, or company officials who actually participated in the negotiations should be interviewed regarding the factors described in §§ 616.22(a) through (f).

When the first bargaining agreement was negotiated, both the union and the employer probably drew up and maintained bargaining unit and seniority lists.  The EOS should request these from the employer and the union.  These will have the names of all the employees in each seniority track, their jobs, and perhaps their racial, sexual, or ethnic status; if not, this may be available from company personnel records.  Union membership rolls will also be helpful, particularly if the race, sex, or national origin of the members is indicated.  Any formal policy restricting membership to a particular race, sex, or ethnic group should be identified.  The local or international union's charter, constitution, or bylaws will be helpful in this regard.

Other useful evidence will include anything on the company's general employment practices at the time of unionization. Any personnel handbooks, printed descriptions of benefits, or other statements of personnel policies should be obtained.  Again, any formal discriminatory policies are highly relevant.  For information regarding seniority arrangements in the industry generally and whether there was considerable discrimination in the industry, the EOS can check with the Director's Office of the Office of Systemic Programs, and/or the Department of Labor's Office of Federal Contract Compliance Programs (see Exhibit 607-E of § 607 for addresses).  If a few large companies control the industry, the EOS can look up the names of these companies in the court case indexes to the CCH Employment Practices Guide or BNA's Fair Employment Practice Cases and read any cases listed there.  Much of the information obtained in §§ 616.20 and 616.21 will also be relevant.

All the above evidence should be analyzed for evidence that the seniority system had its genesis in discrimination and for indications of either overt or inferred discriminatory intent, pursuant to §§ 616.22(a) through (f).