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When maintaining an action pursuant to § 707(a) (42 U.S.C.S. § 2000e-6(a)), of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000 et seq., as the plaintiff, the government bears the initial burden of making out a prima facie case of discrimination. And, where it alleges a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, the government ultimately has to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It has to establish by a preponderance of the evidence that racial discrimination was a company's standard operating procedure, the regular rather than the unusual practice.
The United States instituted this litigation under Title VII of the Civil Rights Act of 1964 against petitioners, a nationwide common carrier of motor freight, and a union representing a large group of the company's employees. The Government alleged that the company had engaged in a pattern or practice of discriminating against African Americans and Latino-surnamed persons (collectively "minority members") who were hired as servicemen or local city drivers at lower paying, less desirable jobs than the positions of line drivers (over-the-road, long-distance drivers), which went to white employees. The Government further alleged that the seniority system in the collective-bargaining agreements between petitioners perpetuated ("locked in") the effects of past racial and ethnic discrimination because under that system a city driver or serviceman who transferred to a line-driver job had to forfeit all the competitive seniority he had accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board." The Government sought a general injunctive remedy and specific "make whole" relief for individual discriminatees, which would allow them an opportunity to transfer to line-driver jobs with full company seniority. Section 703(a) of Title VII makes it an unlawful employment practice, inter alia, for an employer to fail or refuse to hire any individual or otherwise discriminate against him with regard to his employment because of his race or national origin. Section 703(h) provides in part that notwithstanding other provisions, it shall not be an unlawful employment practice for an employer to apply different employment standards pursuant to a bona fide seniority system, provided that such differences are not the result of an intention to discriminate. Seeking further review, petitioner union contended that the seniority system contained in the collective-bargaining agreements did not violate Title VII.
Does the seniority system contained in the collective-bargaining agreements violate Title VII?
On certiorari, the Supreme Court of the United States vacated the judgment. The Court held that, because the seniority system was protected by § 703(h) (42 U.S.C.S. § 2000e-2(h)) of Title VII, the union's conduct in agreeing to and maintaining the system did not violate Title VII. The unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII. As the legislative history showed, the result was intended even where the employer's pre-Title VII discrimination resulted in whites having greater existing seniority rights than minorities. Although a seniority system inevitably tended to perpetuate the effects of pre-Title VII discrimination in such cases, the congressional judgment was that Title VII should not outlaw the use of existing seniority lists and thereby destroy or water down the vested seniority rights of employees simply because their employer had engaged in discrimination prior to the passage of Title VII. The single fact that the system extended no retroactive seniority to pre-Title VII discriminates did not make it unlawful.