U.S. Supreme Court Teamsters v. United States, 431
U.S. 324 (1977) Teamsters v. United
States No. 75-636 Argued January 10,
1977 Decided May 31, 1977 431
U.S. 324 ast|>* 431
U.S. 324 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus 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 Negroes and Spanish-surnamed persons (hereinafter sometimes
collectively "minority members") who were hired as servicemen or
local city drivers, which were lower paying, less desirable jobs
than the positions of line drivers (over-the-road, long-distance
drivers), which went to whites, and 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. . . ." The District Court after trial, with
respect to both the employment discrimination and the seniority
system in the collective bargaining agreements, held that
petitioners had violated Title VII and enjoined both the company
and the union from committing further violations thereof. With
respect to individual relief, the court determined that Page 431 U. S. 325 the "affected class" of discriminatees included all minority
members who had been hired as city drivers or servicemen at every
company terminal with a line driver operation, whether they were
hired before or after Title VII's effective date. The
discriminatees thereby became entitled to preference over all other
line driver applicants in the future. Finding that members of the
affected class had been injured in varying degrees, the court
created three subclasses, and applied to each a different formula
for filling line driver jobs and for establishment of seniority,
giving retroactive seniority to the effective date of the Act to
those who suffered "severe injury." The right of any class member
to a line driver vacancy was made subject to the prior recall
rights under the collective bargaining agreement of line drivers
who had been on layoff for not more than three years. Although
agreeing with the District Court's basic conclusions, the Court of
Appeals rejected the affected-class trisection, holding that the
minority members could bid for future line driver jobs on the basis
of their company seniority, and that, once a class member became a
line driver, he could use his full company seniority even if it
antedated Title VII's effective date, limited only by a
"qualification date" formula, under which seniority could not be
awarded for periods prior to the date when (1) a line driver job
was vacant, and (2) the class member met (or, given the
opportunity, would have met) the line driver qualifications.
Holding that the three-year priority in favor of laid-off workers
"would unduly impede the eradication of past discrimination," the
Court of Appeals directed that, when a not purely temporary line
driver vacancy arose, a class member might compete against any line
driver on layoff on the basis of the member's retroactive
seniority. Held: 1. The Government sustained its burden of proving that the
company engaged in a systemwide pattern or practice of employment
discrimination against minority members in violation of Title VII
by regularly and purposefully treating such members less favorably
than white persons. The evidence, showing pervasive statistical
disparities in line driver positions between employment of the
minority members and whites, and bolstered by considerable
testimony of specific instances of discrimination, was not
adequately rebutted by the company, and supported the findings of
the courts below. Pp. 431 U. S.
334 -343.

															2. Since the Government proved that the company engaged in a
post-Act pattern of discriminatory employment policies, retroactive
seniority may be awarded as relief for post-Act discriminatees even
if the seniority system agreement makes no provision for such
relief. Franks v. Bowman Transportation Co., 424 U.
S. 747 , 424 U. S.
778 -779. Pp. 431 U. S.
347 -348. Page 431 U. S. 326 3. The seniority system was protected by § 703(h), and therefore
the union's conduct in agreeing to and maintaining the system did
not violate Title VII. Employees who suffered only pre-Act
discrimination are not entitled to relief, and no person may be
given retroactive seniority to a date earlier than the Act's
effective date. The District Court's injunction against the union
must consequently be vacated. Pp. 431 U. S.
348 -356.

															(a) By virtue of § 703(h) a bona fide seniority system does not
become unlawful simply because it may perpetuate pre-Title VII
discrimination, for Congress (as is manifest from the language and
legislative history of the Act) did not intend to make it illegal
for employees with vested seniority rights to continue to exercise
those rights, even at the expense of pre-Act discriminatees. Thus,
here, because of the company's intentional pre-Act discrimination,
the disproportionate advantage given by the seniority system to the
white line drivers with the longest tenure over the minority member
employees who might by now have enjoyed those advantages were it
not for the pre-Act discrimination is sanctioned by § 703(h). Pp. 431 U. S.
348 -355.

															(b) The seniority system at issue here is entirely bona fide,
applying to all races and ethnic groups, and was negotiated and is
maintained free from any discriminatory purpose. Pp. 431 U. S.
355 -356.

															4. Every post-Act minority member applicant for a line driver
position is presumptively entitled to relief, subject to a showing
by the company that its earlier refusal to place the applicant in a
line driver job was not based on its policy of discrimination. Cf. Franks, supra at 424 U. S. 773 n. 32. Pp. 431 U. S.
357 -362.

															5. An incumbent employee's failure to apply for a job does not
inexorably bar an award of retroactive seniority, and individual
nonapplicants must be afforded an opportunity to undertake their
difficult task of proving that they should be treated as
applicants, and therefore are presumptively entitled to relief
accordingly. Pp. 431 U. S.
362 -371.

															(a) Congress' purpose in vesting broad equitable powers in Title
VII courts was "to make possible the fashion[ing] [of] the most
complete relief possible,'" Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 421 .
Measured against the broad prophylactic purposes of Title VII, the
company's assertion that a person who has not actually applied for
a job can never be awarded seniority relief cannot prevail, for a
consistently enforced discriminatory policy can surely deter job
applications from those who are aware of it and are unwilling to
subject themselves to the humiliation of explicit and certain
rejection. Pp. 431 U. S.
364 -367. (b) However, a nonapplicant must still show that he was a
potential Page 431 U. S. 327 victim of unlawful discrimination and that he would have applied
for a line driver job but for the company's discriminatory
practices. The known prospect of discriminatory rejection shows
only that employees who wanted line driving jobs may have been
deterred from applying for them but does not show which of the
nonapplicants actually wanted such jobs or were qualified.
Consequently, the Government has the burden of proving at a
remedial hearing to be conducted by the District Court which
specific nonapplicants would have applied for line driver jobs but
for their knowledge of the company's discriminatory policies. Pp. 431 U. S.
367 -371.

															6. At such hearing on remand, the District Court will have to
identify which of the minority members were actual victims of
discrimination and, by application of the basic principles of
equity, to balance their interest against the legitimate
expectations of other employees innocent of wrongdoing. Pp. 431 U. S.
371 -376.

															517 F.2d 299, vacated and remanded.

															STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS,
JJ., joined. MARSHALL, J., filed an opinion concurring in part and
dissenting in part, in which BRENNAN, J., joined, post, p. 431 U. S.
377 . Page 431 U. S. 328 MR. JUSTICE STEWART delivered the opinion of the Court.

															This litigation brings here several important questions under
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V).
The issues grow out of alleged unlawful employment practices
engaged in by an employer and a union. The employer is a common
carrier of motor freight with nationwide operations, and the union
represents a large group of its employees. The District Court and
the Court of Appeals held that the employer had violated Title VII
by engaging in a pattern and practice of employment discrimination
against Negroes and Spanish-surnamed Americans, and that the union
had violated the Act by agreeing with the employer to create and
maintain a seniority system that perpetuated the effects of past
racial and ethnic discrimination. In addition to the basic
questions presented by these two rulings, other subsidiary issues
must be resolved if violations of Title VII occurred -- issues
concerning the nature of the relief to which aggrieved individuals
may be entitled. I The United States brought an action in a Tennessee federal court
against the petitioner T.I.M.E.-D.C. Inc. (company), pursuant to §
707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a).
[ Footnote 1 ] The complaint
charged that the Page 431 U. S. 329 company had followed discriminatory hiring, assignment, and
promotion policies against Negroes at its terminal in Nashville,
Tenn. [ Footnote 2 ] The
Government brought a second action against the company almost three
years later in a Federal District Court in Texas, charging a
pattern and practice of employment discrimination against Negroes
and Spanish-surnamed persons throughout the company's
transportation system. The petitioner International Brotherhood of
Teamsters (union) was joined as a defendant in that suit. The two
actions were consolidated for trial in the Northern District of
Texas.

															The central claim in both lawsuits was that the company had
engaged in a pattern or practice of discriminating against
minorities in hiring so-called line drivers. Those Negroes and
Spanish-surnamed persons who had been hired, the Government
alleged, were given lower paying, less desirable jobs as servicemen
or local city drivers, and were thereafter discriminated against
with respect to promotions and transfers. [ Footnote 3 ] In Page 431 U. S. 330 this connection, the complaint also challenged the seniority
system established by the collective bargaining agreements between
the employer and the union. The Government sought a general
injunctive remedy and specific "make whole" relief for all
individual discriminatees, which would allow them an opportunity to
transfer to line driver jobs with full company seniority for all
purposes.

															The cases went to trial [ Footnote 4 ] and the District Court found that Page 431 U. S. 331 the Government had shown

															"by a preponderance of the evidence that T.I.M.E.-D.C. and its
predecessor companies were engaged in a plan and practice of
discrimination in violation of Title VII. . . . [ Footnote 5 ]"

															The court further found that the seniority system contained in
the collective bargaining contracts between the company and the
union violated Title VII because it "operate[d] to impede the free
transfer of minority groups into and within the company." Both the
company and the union were enjoined from committing further
violations of Title VII.

															With respect to individual relief, the court accepted the
Government's basic contention that the "affected class" of
discriminatees included all Negro and Spanish-surnamed incumbent
employees who had been hired to fill city operations or serviceman
jobs at every terminal that had a line driver operation. [ Footnote 6 ] All of these employees,
whether hired before or after the effective date of Title VII,
thereby became entitled to preference over all other applicants
with respect to consideration for future vacancies in line driver
jobs. [ Footnote 7 ] Finding that
members of the affected class had been injured in different
degrees, the court created three subclasses. Thirty persons who had
produced "the most convincing evidence of discrimination and harm"
were found to have suffered "severe injury." The court ordered that
they be offered the opportunity to fill line driver jobs with
competitive seniority dating back to July 2, Page 431 U. S. 332 1965, the effective date of Title VII. [ Footnote 8 ] A second subclass included four persons who
were "very possibly the objects of discrimination" and who "were
likely harmed," but as to whom there had been no specific evidence
of discrimination and injury. The court decreed that these persons
were entitled to fill vacancies in line driving jobs with
competitive seniority as of January 14, 1971, the date on which the
Government had filed its systemwide lawsuit. Finally, there were
over 300 remaining members of the affected class as to whom there
was "no evidence to show that these individuals were either harmed
or not harmed individually." The court ordered that they be
considered for line driver jobs [ Footnote 9 ] ahead of any applicants from the general
public, but behind the two other subclasses. Those in the third
subclass received no retroactive seniority; their competitive
seniority as line drivers would begin with the date they were hired
as line drivers. The court further decreed that the right of any
class member to fill a line driver vacancy was subject to the prior
recall rights of laid-off line drivers, which under the collective
bargaining agreements then in effect extended for three years.
[ Footnote 10 ] Page 431 U. S. 333 The Court of Appeals for the Fifth Circuit agreed with the basic
conclusions of the District Court: that the company had engaged in
a pattern or practice of employment discrimination and that the
seniority system in the collective bargaining agreements violated
Title VII as applied to victims of prior discrimination. 517 F.2d
299. The appellate court held, however, that the relief ordered by
the District Court was inadequate. Rejecting the District Court's
attempt to trisect the affected class, the Court of Appeals held
that all Negro and Spanish-surnamed incumbent employees were
entitled to bid for future line driver jobs on the basis of their
company seniority, and that' once a class member had filled a job,
he could use his full company seniority -- even if it predated the
effective date of Title VII-for all purposes, including bidding and
layoff. This award of retroactive seniority was to be limited only
by a "qualification date" formula, under which seniority could not
be awarded for periods prior to the date when (1) a line driving
position was vacant, [ Footnote
11 ] and (2) the class member met (or would have met, given the
opportunity) the qualifications for employment as a line driver.
[ Footnote 12 ] Finally, Page 431 U. S. 334 the Court of Appeals modified that part of the District Court's
decree that had subjected the rights of class members to fill
future vacancies to the recall rights of laid-off employees.
Holding that the three-year priority in favor of laid-off workers
"would unduly impede the eradication of past discrimination," id. at 322, the Court of Appeals ordered that class
members be allowed to compete for vacancies with laid-off employees
on the basis of the class members' retroactive seniority. Laid-off
line drivers would retain their prior recall rights with respect
only to "purely temporary" vacancies. Ibid. [ Footnote 13 ]

															The Court of Appeals remanded the case to the District Court to
hold the evidentiary hearings necessary to apply these remedial
principles. We granted both the company's and the union's petitions
for certiorari to consider the significant questions presented
under the Civil Rights Act of 1964, 425 U.S. 990. II In this Court, the company and the union contend that their
conduct did not violate Title VII in any respect, asserting first
that the evidence introduced at trial was insufficient to show that
the company engaged in a "pattern or practice" of employment
discrimination. The union further contends that the seniority
system contained in the collective bargaining agreements in no way
violated Title VII. If these contentions are correct, it is
unnecessary, of course, to reach any of the issues concerning
remedies that so occupied the attention of the Court of
Appeals. A Consideration of the question whether the company engaged in a
pattern or practice of discriminatory hiring practices Page 431 U. S. 335 involves controlling legal principles that are relatively clear.
The Government's theory of discrimination was simply that the
company, in violation of § 703(a) of Title VII, [ Footnote 14 ] regularly and purposefully
treated Negroes and Spanish-surnamed Americans less favorably than
white persons. The disparity in treatment allegedly involved the
refusal to recruit, hire, transfer, or promote minority group
members on an equal basis with white people, particularly with
respect to line driving positions. The ultimate factual issues are
thus simply whether there was a pattern or practice of such
disparate treatment and, if so, whether the differences were
"racially premised." McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 805 n. 18. [ Footnote 15 ] Page 431 U. S. 336 As the plaintiff, the Government bore the initial burden of
making out a prima facie case of discrimination. Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S. 425 ; McDonnell Douglas Corp. v. Green, supra at 411 U. S. 802 .
And, because it alleged a systemwide pattern or practice of
resistance to the full enjoyment of Title VII rights, the
Government ultimately had to prove more than the mere occurrence of
isolated or "accidental" or sporadic discriminatory acts. It had to
establish by a preponderance of the evidence that racial
discrimination was the company's standard operating procedure --
the regular, rather than the unusual, practice. [ Footnote 16 ] Page 431 U. S. 337 We agree with the District Court and the Court of Appeals that
the Government carried its burden of proof. As of March 31, 1971,
shortly after the Government filed its complaint alleging
systemwide discrimination, the company had 6,472 employees. Of
these, 314 (5%) were Negroes and 257 (4%) were Spanish-surnamed
Americans. Of the 1,828 line drivers, however, there were only 8
(0.4%) Negroes and 5 (0.3%) Spanish-surnamed persons, and all of
the Negroes had been hired after the litigation had commenced. With
one exception -- a man who worked as a line driver at the Chicago
terminal from 1950 to 1959 -- the company and its predecessors did
not employ a Negro on a regular basis as a line driver until 1969.
And, as the Government showed, even in 1971, there were terminals
in areas of substantial Negro population where all of the company's
line drivers were white. [ Footnote 17 ] A great majority of the Negroes (83%) and
Spanish-surnamed Americans Page 431 U. S. 338 (78%) who did work for the company held the lower paying city
operations and serviceman jobs, [ Footnote 18 ] whereas only 39% of the nonminority
employees held jobs in those categories.

															The Government bolstered its statistical evidence with the
testimony of individuals who recounted over 40 specific instances
of discrimination. Upon the basis of this testimony, the District
Court found that

															"[n]umerous qualified black and Spanish-surnamed American
applicants who sought line driving jobs at the company over the
years, either had their requests ignored, were given false or
misleading information about requirements, opportunities, and
application procedures, or were not considered and hired on the
same basis that whites were considered and hired."

															Minority employees who wanted to transfer to line driver jobs
met with similar difficulties. [ Footnote 19 ] Page 431 U. S. 339 The company's principal response to this evidence is that
statistics can never, in and of themselves, prove the existence of
a pattern or practice of discrimination, or even establish a prima facie case shifting to the employer the burden of
rebutting the inference raised by the figures. But, as even our
brief summary of the evidence shows, this was not a case in which
the Government relied on "statistics alone." The individuals who
testified about their personal experiences with the company brought
the cold numbers convincingly to life.

															In any event, our cases make it unmistakably clear that
"[s]tatistical analyses have served and will continue to serve an
important role" in cases in which the existence of discrimination
is a disputed issue. Mayor of Philadelphia v. Educational
Equality League, 415 U. S. 605 , 415 U. S. 620 . See also McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 805 . Cf. Washington v. Davis, 426 U. S. 229 , 426 U. S.
241 -242. We have repeatedly approved the use of
statistical proof, where it reached proportions comparable to those
in this case, to establish a prima facie case of racial
discrimination in jury selection cases, see, e.g., Turner v.
Fouche, 396 U. S. 346 ; Hernandez v. Texas, 347 U. S. 475 ; Norris v. Alabama, 294 U. S. 587 .
Statistics are equally competent in proving employment
discrimination. [ Footnote
20 ] Page 431 U. S. 340 We caution only that statistics are not irrefutable; they come
in infinite variety and, like any other kind of evidence, they may
be rebutted. In short, their usefulness depends on all of the
surrounding facts and circumstances. See, e.g., Hester v.
Southern R. Co., 497 F.2d 1374, 1379-1381 (CA5).

															In addition to its general protest against the use of statistics
in Title VII cases, the company claims that, in this case, the
statistics revealing racial imbalance are misleading because they
fail to take into account the company's particular business Page 431 U. S. 341 situation as of the effective date of Title VII. The company
concedes that its line drivers were virtually all white in July,
1965, but it claims that, thereafter, business conditions were such
that its workforce dropped. Its argument is that low personnel
turnover, rather than post-Act discrimination, accounts for more
recent statistical disparities. It points to substantial minority
hiring in later years, especially after 1971, as showing that any
pre-Act patterns of discrimination were broken.

															The argument would be a forceful one if this were an employer
who, at the time of suit, had done virtually no new hiring since
the effective date of Title VII. But it is not. Although the
company's total number of employees apparently dropped somewhat
during the late 1960's, the record shows that many line drivers
continued to be hired throughout this period, and that almost all
of them were white. [ Footnote
21 ] To be sure, there were improvements in the company's hiring
practices. The Court of Appeals commented that

															"T.I.M.E.-D.C.'s recent minority hiring progress stands as a
laudable good faith effort to eradicate the effects of past
discrimination in the area of hiring and initial assignment.
[ Footnote 22 ]"

															517 F.2d at 316. But the District Court and the Court of Appeals
found upon substantial evidence that the company had engaged in a
course of discrimination that continued well after the effective
date of Title VII. The company's later changes in its hiring
and Page 431 U. S. 342 promotion policies could be of little comfort to the victims of
the earlier post-Act discrimination, and could not erase its
previous illegal conduct or its obligation to afford relief to
those who suffered because of it. Cf. Albemarle Paper Co. v.
Mood, 422 U.S. at 422 U. S.
413 -423. [ Footnote
23 ]

															The District Court and the Court of Appeals, on the basis of
substantial evidence, held that the Government had proved a prima facie case of systematic and purposeful employment
discrimination, continuing well beyond the effective date of Title
VII. The company's attempts to rebut that conclusion were held to
be inadequate. [ Footnote 24 ]
For the reasons we have summarized, Page 431 U. S. 343 there is no warrant for this Court to disturb the findings of
the District Court and the Court of Appeals on this basic issue. See Blau v. Lehman, 368 U. S. 403 , 368 U. S.
408 -409; Faulkner v. Gibbs, 338 U.
S. 267 , 338 U. S. 268 ; United States v. Dickinson, 331 U.
S. 745 , 331 U. S. 751 ; United States v. Commercial Credit Co., 286 U. S.
63 , 286 U. S. 67 ; United States v. Chemical Foundation, Inc., 272 U. S.
1 , 272 U. S. 14 ; Baker v. Schofield, 243 U. S. 114 , 243 U. S. 118 ; Towson v. Moore, 173 U. S. 17 , 173 U. S.
24 . B The District Court and the Court of Appeals also found that the
seniority system contained in the collective bargaining agreements
between the company and the union operated to violate Title VII of
the Act.

															For purposes of calculating benefits, such as vacations,
pensions, and other fringe benefits, an employee's seniority under
this system runs from the date he joins the company, and takes into
account his total service in all jobs and bargaining units. For
competitive purposes, however, such as determining the order in
which employees may bid for particular jobs, are laid off, or are
recalled from layoff, it is bargaining unit seniority that
controls. Thus, a line driver's seniority, Page 431 U. S. 344 for purposes of bidding for particular runs [ Footnote 25 ] and protection against layoff,
takes into account only the length of time he has been a line
driver at a particular terminal. [ Footnote 26 ] The practical effect is that a city driver
or serviceman who transfers to a line driver job must forfeit all
the competitive seniority he has accumulated in his previous
bargaining unit and start at the bottom of the line drivers'
"board."

															The vice of this arrangement, as found by the District Court and
the Court of Appeals, was that it "locked" minority workers into
inferior jobs and perpetuated prior discrimination by discouraging
transfers to jobs as line drivers. While the disincentive applied
to all workers, including whites, it was Negroes and
Spanish-surnamed persons who, those courts found, suffered the most
because many of them had been denied the equal opportunity to
become line drivers when they were initially hired, whereas whites
either had not sought or were refused line driver positions for
reasons unrelated to their race or national origin.

															The linchpin of the theory embraced by the District Court and
the Court of Appeals was that a discriminatee who must forfeit his
competitive seniority in order finally to obtain a line driver job
will never be able to "catch up" to the seniority level of his
contemporary who was not subject to discrimination. [ Footnote 27 ] Accordingly, this continued,
built-in disadvantage to Page 431 U. S. 345 the prior discriminatee who transfers to a line driver job was
held to constitute a continuing violation of Title VII, for which
both the employer and the union who jointly created and maintain
the seniority system were liable.

															The union, while acknowledging that the seniority system may in
some sense perpetuate the effects of prior discrimination, asserts
that the system is immunized from a finding of illegality by reason
of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which provides in
part:

															"Notwithstanding any other provision of this subchapter, it
shall not be an unlawful employment practice for an employer to
apply different standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a bona fide
seniority . . . system, . . . provided that such differences are
not the result of an intention to discriminate because of race . .
. or national origin. . . ."

															It argues that the seniority system in this case is "bona fide"
within the meaning of § 703(h) when judged in light of its history,
intent, application, and all of the circumstances under which it
was created and is maintained. More specifically, the union claims
that the central purpose of § 703(h) is to ensure that mere
perpetuation of pre-Act discrimination is not unlawful under Title
VII. And, whether or not § 703(h) immunizes the perpetuation of
post-Act discrimination, the union claims that the seniority system
in this litigation has no such effect. Its position in this Court,
as has been its position throughout this litigation, is that the
seniority system presents no hurdle to post-Act discriminatees Page 431 U. S. 346 who seek retroactive seniority to the date they would have
become line drivers but for the company's discrimination. Indeed,
the union asserts that, under its collective bargaining agreements,
the union will itself take up the cause of the post-Act victim and
attempt, through grievance procedures, to gain for him full "make
whole" relief, including appropriate seniority.

															The Government responds that a seniority system that perpetuates
the effects of prior discrimination -- pre-Act or post-Act -- can
never be "bona fide" under § 703(h); at a minimum, Title VII
prohibits those applications of a seniority system that perpetuate
the effects on incumbent employees of prior discriminatory job
assignments.

															The issues thus joined are open ones in this Court. [ Footnote 28 ] We considered § 703(h)
in Franks v. Bowman Transportation Co., 424 U.
S. 747 , but there decided only that § 703(h) does not
bar the award of retroactive seniority to job applicants who seek
relief from an employer's post-Act hiring discrimination. We stated
that

															"the thrust of [§ 703(h)] is directed toward Page 431 U. S. 347 defining what is and what is not an illegal discriminatory
practice in instances in which the post-Act operation of a
seniority system is challenged as perpetuating the effects of
discrimination occurring prior to the effective date of the
Act."

															424 U.S. at 424 U. S. 761 .
Beyond noting the general purpose of the statute, however, we did
not undertake the task of statutory construction required in this
litigation. (1) Because the company discriminated both before and after the
enactment of Title VII, the seniority system is said to have
operated to perpetuate the effects of both pre- and post-Act
discrimination. Post-Act discriminatees, however, may obtain full
"make whole" relief, including retroactive seniority under Franks v. Bowman, supra, without attacking the legality of
the seniority system as applied to them. Franks made
clear, and the union acknowledges, that retroactive seniority may
be awarded as relief from an employer's discriminatory hiring and
assignment policies even if the seniority system agreement itself
makes no provision for such relief. [ Footnote 29 ] 424 U.S. at 424 U. S.
778 -779. Here the Government has proved that the company
engaged in a post-Act pattern of discriminatory hiring, assignment,
transfer, and promotion policies. Any Negro or Spanish-surnamed
American injured by those policies Page 431 U. S. 348 may receive all appropriate relief as a direct remedy for this
discrimination. [ Footnote
30 ] (2) What remains for review is the judgment that the seniority
system unlawfully perpetuated the effects of pre-Act
discrimination. We must decide, in short, whether § 703(h)
validates otherwise bona fide seniority systems that afford no
constructive seniority to victims discriminated against prior to
the effective date of Title VII, and it is to that issue that we
now turn.

															The primary purpose of Title VII was

															"to assure equality of employment opportunities and to eliminate
those discriminatory practices and devices which have fostered
racially stratified job environments to the disadvantage of
minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 800 .
[ Footnote 31 ] See also
Albemarle Paper Co. v. Moody, 422 U.S. at Page 431 U. S. 349 422 U. S.
417 -418; Alexander v. Gardner-Denver Co., 415 U. S. 36 , 415 U. S. 44 ; Griggs v. Duke Power Co., 401 U.S. at 401 U. S.
429 -431. To achieve this purpose, Congress "proscribe[d]
not only overt discrimination but also practices that are fair in
form, but discriminatory in operation." Id. at 401 U. S. 431 . Thus, the Court has repeatedly held that a prima facie Title VII violation may be established by policies or practices
that are neutral on their face and in intent but that nonetheless
discriminate in effect against a particular group. General
Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 137 ; Washington v. Davis, 426 U.S. at 426 U. S.
246 -247; Albemarle Paper Co. v. Moody, supra at 422 U. S. 422 , 422 U. S. 425 ; McDonnell Douglas Corp v. Green, supra at 411 U. S. 802 n. 14; Griggs v. Duke Power Co., supra. One kind of practice "fair in form but discriminatory in
operation" is that which perpetuates the effects of prior
discrimination. [ Footnote
32 ] As the Court held in Griggs: "Under the Act, practices, procedures, or tests neutral on their
face, and even neutral in terms of intent, cannot be maintained if
they operate to 'freeze' the status quo of prior
discriminatory employment practices."

															401 U.S. at 401 U. S.
430 .

															Were it not for § 703(h), the seniority system in this case
would seem to fall under the Griggs rationale. The heart
of the system is its allocation of the choicest jobs, the greatest
protection against layoffs, and other advantages to those employees
who have been line drivers for the longest time. Where, because of
the employer's prior intentional discrimination, Page 431 U. S. 350 the line drivers with the longest tenure are, without exception,
white, the advantages of the seniority system flow
disproportionately to them and away from Negro and Spanish-surnamed
employees who might by now have enjoyed those advantages had not
the employer discriminated before the passage of the Act. This
disproportionate distribution of advantages does, in a very real
sense, "operate to freeze' the status quo of prior
discriminatory employment practices." But both the literal terms of
§ 703(h) and the legislative history of Title VII demonstrate that
Congress considered this very effect of many seniority systems and
extended a measure of immunity to them. Throughout the initial consideration of H.R. 7152, later enacted
as the Civil Rights Act of 1964, critics of the bill charged that
it would destroy existing seniority rights. [ Footnote 33 ] The consistent response of Title
VII's congressional proponents and of the Justice Department was
that seniority rights would not be affected, even where the
employer had discriminated prior to the Act. [ Footnote 34 ] An interpretive memorandum placed
in the Congressional Record by Senators Clark and Case stated:

															"Title VII would have no effect on established seniority rights.
Its effect is prospective, and not retrospective. Thus, for
example, if a business has been discriminating in the past and,
as a result, has an all-white working force, when the title comes
into effect, the employer's obligation would be simply to fill
future vacancies on a nondiscriminatory basis. He would not be
obliged -- or indeed, Page 431 U. S. 351 permitted -- to fire whites in order to hire Negroes, or to
prefer Negroes for future vacancies, or, once Negroes are hired, to
give them special seniority rights at the expense of the white
workers hired earlier."

															110 Cong.Rec. 7213 (1964) (emphasis added). [ Footnote 35 ] A Justice Department statement
concerning Title VII, placed in the Congressional Record by Senator
Clark, voiced the same conclusion:

															"Title VII would have no effect on seniority rights existing at
the time it takes effect. If, for example, a collective bargaining
contract provides that, in the event of layoffs, those who were
hired last must be laid off first, such a provision would not be
affected in the least by title VII. This would be true even in
the case where, owing to discrimination prior to the effective date
of the title, white workers had more seniority than
Negroes. " Id. at 7207 (emphasis added). [ Footnote 36 ] Page 431 U. S. 352 While these statements were made before § 703(h) was added to
Title VII, they are authoritative indicators of that section's
purpose. Section 703(h) was enacted as part of the
Mansfield-Dirksen compromise substitute bill that cleared the way
for the passage of Title VII. [ Footnote 37 ] The drafters of the compromise bill stated
that one of its principal goals was to resolve the ambiguities in
the House-passed version of H.R. 7152. See, e.g., 110
Cong.Rec. 11935-11937 (1964) (remarks of Sen. Dirksen); id. at 12707 (remarks of Sen. Humphrey). As the debates
indicate, one of those ambiguities concerned Title VII's impact on
existing collectively bargained seniority rights. It is apparent
that § 703(h) was drafted with an eye toward meeting the earlier
criticism on this issue with an explicit provision embodying the
understanding and assurances of the Act's proponents, namely, that
Title VII would not outlaw such differences in treatment among
employees as flowed from a bona fide seniority system that allowed
for full exercise of seniority accumulated before the effective
date of the Act. It is inconceivable that § 703(h), as part of a
compromise bill, was intended to vitiate the earlier
representations of the Act's supporters by increasing Title VII's
impact on seniority systems. The statement of Senator Humphrey,
noted in Franks, 424 U.S. at 424 U. S. 761 ,
confirms that the addition of § 703(h) "merely clarifies [Title
VII's] present intent and effect." 110 Cong.Rec. 12723 (1964).

															In sum, 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 shows,
this was the intended result even where the employer's pre-Act
discrimination resulted in whites having greater existing seniority
rights than Negroes. Although a seniority system inevitably tends
to perpetuate the effects of Page 431 U. S. 353 pre-Act 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 the Act.

															To be sure, § 703(h) does not immunize all seniority systems. It
refers only to "bona fide" systems, and a proviso requires that any
differences in treatment not be "the result of an intention to
discriminate because of race . . . or national origin. . . ." But
our reading of the legislative history compels us to reject the
Government's broad argument that no seniority system that tends to
perpetuate pre-Act discrimination can be "bona fide." To accept the
argument would require us to hold that a seniority system becomes
illegal simply because it allows the full exercise of the pre-Act
seniority rights of employees of a company that discriminated
before Title VII was enacted. It would place an affirmative
obligation on the parties to the seniority agreement to subordinate
those rights in favor of the claims of pre-Act discriminatees
without seniority. The consequence would be a perversion of the
congressional purpose. We cannot accept the invitation to
disembowel § 703(h) by reading the words "bona fide" as the
Government would have us do. [ Footnote 38 ] Accordingly, we hold that an otherwise
neutral, legitimate seniority system does not become unlawful under
Title VII simply because it may perpetuate Page 431 U. S. 354 pre-Act discrimination. Congress did not intend to make it
illegal for employees with vested seniority rights to continue to
exercise those rights, even at the expense of pre-Act
discriminatees. [ Footnote
39 ]

															That conclusion is inescapable even in a case, such as this one,
where the pre-Act discriminatees are incumbent employees who
accumulated seniority in other bargaining units. Although there
seems to be no explicit reference in the legislative history to
pre-Act discriminatees already employed in less desirable jobs,
there can be no rational basis for distinguishing their claims from
those of persons initially denied any job but hired later
with less seniority than they might have had in the absence of
pre-Act discrimination. [ Footnote 40 ] We rejected any such Page 431 U. S. 355 distinction in Franks, finding that it had "no support
anywhere in Title VII or its legislative history," 424 U.S. at 424 U. S. 768 .
As discussed above, Congress, in 1964, made clear that a seniority
system is not unlawful because it honors employees' existing
rights, even where the employer has engaged in pre-Act
discriminatory hiring or promotion practices. It would be as
contrary to that mandate to forbid the exercise of seniority rights
with respect to discriminatees who held inferior jobs as with
respect to later hired minority employees who previously were
denied any job. If anything, the latter group is the more
disadvantaged. As in Franks, " it would indeed be
surprising if Congress gave a remedy for the one [group] which it
denied for the other.'" Ibid., quoting Phelps Dodge
Corp. v. NLRB, 313 U. S. 177 , 313 U. S. 187 .
[ Footnote 41 ] (3) The seniority system in this litigation is entirely bona fide.
It applies equally to all races and ethnic groups. To the extent
that it "locks" employees into non-line driver jobs, it Page 431 U. S. 356 does so for all. The city drivers and servicemen who are
discouraged from transferring to line driver jobs are not all
Negroes or Spanish-surnamed Americans; to the contrary, the
overwhelming majority are white. The placing of line drivers in a
separate bargaining unit from other employees is rational, in
accord with the industry practice, and consistent with National
Labor Relation Board precedents. [ Footnote 42 ] It is conceded that the seniority system did
not have its genesis in racial discrimination, and that it was
negotiated and has been maintained free from any illegal purpose.
In these circumstances, the single fact that the system extends no
retroactive seniority to pre-Act discriminatees does not make it
unlawful.

															Because the seniority system was protected by § 703(h), the
union's conduct in agreeing to and maintaining the system did not
violate Title VII. On remand, the District Court's injunction
against the union must be vacated. [ Footnote 43 ] III Our conclusion that the seniority system does not violate Title
VII will necessarily affect the remedy granted to individual
employees on remand of this litigation to the District Court. Those
employees who suffered only pre-Act discrimination are not entitled
to relief, and no person may Page 431 U. S. 357 be given retroactive seniority to a date earlier than the
effective date of the Act. Several other questions relating to the
appropriate measure of individual relief remain, however, for our
consideration.

															The petitioners argue generally that the trial court did not err
in tailoring the remedy to the "degree of injury" suffered by each
individual employee, and that the Court of Appeals' "qualification
date" formula sweeps with too broad a brush by granting a remedy to
employees who were not shown to be actual victims of unlawful
discrimination. Specifically, the petitioners assert that no
employee should be entitled to relief until the Government
demonstrates that he was an actual victim of the company's
discriminatory practices; that no employee who did not apply for a
line driver job should be granted retroactive competitive
seniority; and that no employee should be elevated to a line driver
job ahead of any current line driver on layoff status. We consider
each of these contentions separately. A The petitioners' first contention is in substance that the
Government's burden of proof in a "pattern or practice" case must
be equivalent to that outlined in McDonnell Douglas v.
Green. Since the Government introduced specific evidence of
company discrimination against only some 40 employees, they argue
that the District Court properly refused to award retroactive
seniority to the remainder of the class of minority incumbent
employees.

															In McDonnell Douglas the Court considered "the order
and allocation of proof in a private, non-class action challenging
employment discrimination." 411 U.S. at 411 U. S. 800 .
We held that an individual Title VII complainant must carry the
initial burden of proof by establishing a prima facie case
of racial discrimination. On the specific facts there involved, we
concluded that this burden was met by showing that a Page 431 U. S. 358 qualified applicant, who was a member of a racial minority
group, had unsuccessfully sought a job for which there was a
vacancy and for which the employer continued thereafter to seek
applicants with similar qualifications. This initial showing
justified the inference that the minority applicant was denied an
employment opportunity for reasons prohibited by Title VII, and
therefore shifted the burden to the employer to rebut that
inference by offering some legitimate, nondiscriminatory reason for
the rejection. Id. at 802.

															The company and union seize upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination. Our decision in that case,
however, did not purport to create an inflexible formulation. We
expressly noted that

															"[t]he facts necessarily will vary in Title VII cases, and the
specification . . . of the prima facie proof required from
[a plaintiff] is not necessarily applicable in every respect to
differing factual situations." Id. at 802 n. 13. The importance of McDonnell
Douglas lies, not in its specification of the discrete
elements of proof there required, but in its recognition of the
general principle that any Title VII plaintiff must carry the
initial burden of offering evidence adequate to create an inference
that an employment decision was based on a discriminatory criterion
illegal under the Act. [ Footnote
44 ]

															In Franks v. Bowman Transportation Co., the Court
applied Page 431 U. S. 359 this principle in the context of a class action. The Franks plaintiffs proved, to the satisfaction of a
District Court, that Bowman Transportation Co "had engaged in a
pattern of racial discrimination in various company policies,
including the hiring, transfer, and discharge of employees." 424
U.S. at 424 U. S. 751 .
Despite this showing, the trial court denied seniority relief to
certain members of the class of discriminatees because not every
individual had shown that he was qualified for the job he sought
and that a vacancy had been available. We held that the trial court
had erred in placing this burden on the individual plaintiffs. By
"demonstrating the existence of a discriminatory hiring pattern and
practice," the plaintiffs had made out a prima facie case
of discrimination against the individual class members; the burden
therefore shifted to the employer "to prove that individuals who
reapply were not in fact victims of previous hiring
discrimination." Id. at 424 U. S. 772 .
The Franks case thus illustrates another means by which a
Title VII plaintiff's initial burden of proof can be met. The class
there alleged a broad-based policy of employment discrimination;
upon proof of that allegation, there were reasonable grounds to
infer that individual hiring decisions were made in pursuit of the
discriminatory policy, and to require the employer to come forth
with evidence dispelling that inference. [ Footnote 45 ] Page 431 U. S. 360 Although not all class actions will necessarily follow the Franks model, the nature of a "pattern or practice" suit
brings it squarely within our holding in Franks. The
plaintiff in a "pattern or practice" action is the Government, and
its initial burden is to demonstrate that unlawful discrimination
has been a regular procedure or policy followed by an employer or
group of employers. See supra at 431 U. S. 336 ,
and n. 16. At the initial, "liability" stage of a "pattern or
practice" suit the Government is not required to offer evidence
that each person for whom it will ultimately seek relief was a
victim of the employer's discriminatory policy. Its burden is to
establish a prima facie case that such a policy existed.
The burden then shifts to the employer to defeat the prima
facie showing of a pattern or practice by demonstrating that
the Government's proof is either inaccurate or insignificant. An
employer might show, for example, that the claimed discriminatory
pattern is a product of pre-Act hiring rather, than unlawful
post-Act discrimination, or that, during the period, it is alleged
to have pursued a discriminatory policy it made too few employment
decisions to justify the inference that it had engaged in a regular
practice of discrimination. [ Footnote 46 ] Page 431 U. S. 361 If an employer fails to rebut the inference that arises from the
Government's prima facie case, a trial court may then
conclude that a violation has occurred and determine the
appropriate remedy. Without any further evidence from the
Government, a court's finding of a pattern or practice justifies an
award of prospective relief. Such relief might take the form of an
injunctive order against continuation of the discriminatory
practice, an order that the employer keep records of its future
employment decisions and file periodic reports with the court, or
any other order "necessary to ensure the full enjoyment of the
rights" protected by Title VII. [ Footnote 47 ]

															When the Government seeks individual relief for the victims of
the discriminatory practice, a district court must usually conduct
additional proceedings after the liability phase of the trial to
determine the scope of individual relief. The petitioners'
contention in this case is that, if the Government has not, in the
course of proving a pattern or practice, already brought forth
specific evidence that each individual was discriminatorily denied
an employment opportunity, it must carry that burden at the second,
"remedial" stage of trial. That basic contention was rejected in
the Franks case. As was true of the particular facts in Franks, and as is typical of Title VII "pattern or
practice" suits, the question of individual relief does not arise
until it has been proved that the employer has followed an
employment policy of unlawful discrimination. The force of that
proof does not dissipate at the remedial stage Page 431 U. S. 362 of the trial. The employer cannot, therefore, claim that there
is no reason to believe that its individual employment decisions
were discriminatorily based; it has already been shown to have
maintained a policy of discriminatory decisionmaking.

															The proof of the pattern or practice supports an inference that
any particular employment decision, during the period in which the
discriminatory policy was in force, was made in pursuit of that
policy. The Government need only show that an alleged individual
discriminatee unsuccessfully applied for a job, [ Footnote 48 ] and therefore was a potential
victim of the proved discrimination. As in Franks, the
burden then rests on the employer to demonstrate that the
individual applicant was denied an employment opportunity for
lawful reasons. See 424 U.S. at 424 U. S. 773 n. 32.

															In 431 U. S. supra, we have held that the District Court and Court of
Appeals were not in error in finding that the Government had proved
a systemwide pattern and practice of racial and ethnic
discrimination on the part of the company. On remand, therefore,
every post-Act minority group applicant [ Footnote 49 ] for a line driver position will be
presumptively entitled to relief, subject to a showing by the
company that its earlier refusal to place the applicant in a line
driver job was not based on its policy of discrimination. [ Footnote 50 ] B The Court of Appeals' "qualification date" formula for relief
did not distinguish between incumbent employees who Page 431 U. S. 363 had applied for line driver jobs and those who had not. The
appellate court held that, where there has been a showing of
classwide discriminatory practices coupled with a seniority system
that perpetuates the effects of that discrimination, an individual
member of the class need not show that he unsuccessfully applied
for the position from which the class had been excluded. In support
of its award of relief to all nonapplicants, the Court suggested
that,

															"as a practical matter . . . , a member of the affected class
may well have concluded that an application for transfer to an
all-White position such as [line driver] was not worth the
candle."

															517 F.2d at 320.

															The company contends that a grant of retroactive seniority to
these nonapplicants is inconsistent with the make-whole purpose of
a Title VII remedy, and impermissibly will require the company to
give preferential treatment to employees solely because of their
race. The thrust of the company's contention is that, unless a
minority group employee actually applied for a line driver job,
either for initial hire or for transfer, he has suffered no injury
from whatever discrimination might have been involved in the
refusal of such jobs to those who actually applied for them.

															The Government argues in response that there should be no
"immutable rule" that nonapplicants are nonvictims, and contends
that a determination whether nonapplicants have suffered from
unlawful discrimination will necessarily vary depending on the
circumstances of each particular case. The Government further
asserts that, under the specific facts of this case, the Court of
Appeals correctly determined that all qualified nonapplicants were
likely victims, and were therefore presumptively entitled to
relief.

															The question whether seniority relief may be awarded to
nonapplicants was left open by our decision in Franks, since the class at issue in that case was limited to "identifiable
applicants who were denied employment . . . after the effective
date . . . of Title VII." 424 U.S. at 431 U. S. 750 .
We now Page 431 U. S. 364 decide that an incumbent employee's failure to apply for a job
is not an inexorable bar to an award of retroactive seniority.
Individual nonapplicants must be given an opportunity to undertake
their difficult task of proving that they should be treated as
applicants, and therefore are presumptively entitled to relief
accordingly. (1) Analysis of this problem must begin with the premise that the
scope of a district court's remedial powers under Title VII is
determined by the purposes of the Act. Albemarle Paper Co. v.
Moody, 422 U.S. at 422 U. S. 417 .
In Griggs v. Duke Power Co., and again in Albemarle, the Court noted that a primary objective of
Title VII is prophylactic: to achieve equal employment opportunity
and to remove the barriers that have operated to favor white male
employees over other employees. 401 U.S. at 401 U. S.
429 -430; 422 U.S. at 422 U. S. 417 .
The prospect of retroactive relief for victims of discrimination
serves this purpose by providing the

															"'spur or catalyst which causes employers and unions to
self-examine and to self-evaluate their employment practices and to
endeavor to eliminate, so far as possible, the last vestiges'"

															of their discriminatory practices. Id. at 422 U. S.
417 -418. An equally important purpose of the Act is "to
make persons whole for injuries suffered on account of unlawful
employment discrimination." Id. at 422 U. S. 418 .
In determining the specific remedies to be afforded, a district
court is "to fashion such relief as the particular circumstances of
a case may require to effect restitution." Franks, 424
U.S. at 424 U. S.
764 .

															Thus, the Court has held that the purpose of Congress in vesting
broad equitable powers in Title VII courts was "to make possible
the fashion[ing] [of] the most complete relief possible,'" and
that the district courts have "'not merely the power, but the duty, to render a decree which
will, so far as possible, eliminate the discriminatory effects of
the past, as well as bar like discrimination in the future.'" Albemarle, Page 431 U. S. 365 supra at 422 U. S. 421 , 422 U. S. 418 .
More specifically, in Franks, we decided that a court must
ordinarily award a seniority remedy unless there exist reasons for
denying relief

															"'which, if applied generally, would not frustrate the central
statutory purposes of eradicating discrimination . . . and making
persons whole for injuries suffered.'"

															424 U.S. at 424 U. S. 771 ,
quoting Albemarle, supra, at 422 U. S.
421 .

															Measured against these standards, the company's assertion that a
person who has not actually applied for a job can never be awarded
seniority relief cannot prevail. The effects of and the injuries
suffered from discriminatory employment practices are not always
confined to those who were expressly denied a requested employment
opportunity. A consistently enforced discriminatory policy can
surely deter job applications from those who are aware of it and
are unwilling to subject themselves to the humiliation of explicit
and certain rejection.

															If an employer should announce his policy of discrimination by a
sign reading "Whites only" on the hiring office door, his victims
would not be limited to the few who ignored the sign and subjected
themselves to personal rebuffs. The same message can be
communicated to potential applicants more subtly, but just as
clearly, by an employer's actual practice by his consistent
discriminatory treatment of actual applicants, by the manner in
which he publicizes vacancies, his recruitment techniques, his
responses to casual or tentative inquiries, and even by the racial
or ethnic composition of that part of his workforce from which he
has discriminatorily excluded members of minority groups. [ Footnote 51 ] When a person's Page 431 U. S. 366 desire for a job is not translated into a formal application
solely because of his unwillingness to engage in a futile gesture,
he is as much a victim of discrimination as he who goes through the
motions of submitting an application.

															In cases decided under the National Labor Relations Act, the
model for Title VII's remedial provisions, Albemarle,
supra at 422 U. S. 419 ; Franks, supra at 424 U. S. 769 ,
the National Labor Relations Board, and the courts in enforcing its
orders, have recognized that the failure to submit a futile
application does not bar an award of relief to a person claiming
that he was denied employment because of union affiliation or
activity. In NLRB v. Nevada Consolidated Copper Corp., 316 U. S. 105 ,
this Court enforced an order of the Board directing an employer to
hire, with retroactive benefits, former employees who had not
applied for newly available jobs because of the employer's well
known policy of refusing to hire union members. See In re
Nevada Consolidated Copper Corp., 26 N.L.R.B. 1182, 1208,
1231. Similarly, when an application would have been no more than a
vain gesture in light of employer discrimination, the Courts of
Appeals have enforced Board orders reinstating striking workers
despite the failure of individual strikers to apply for
reinstatement when the strike ended. E.g., NLRB v. Park Edge
Sheridan Meats, Inc., 323 F.2d 956 (CA2); NLRB v. Valley
Die Cast Corp., 303 F.2d 64 (CA6); Eagle-Picher Mining
& Smelting Co. v. NLRB, 119 F.2d 03 (CA8). See also
Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (CA3); NLRB
v. Anchor Rome Mills, Page 431 U. S. 367 228 F.2d 775 (CA5); NLRB v. Lummus Co., 210 F.2d 377
(CA5). Consistent with the NLRA model, several Courts of Appeals
have held in Title VII cases that a nonapplicant can be a victim of
unlawful discrimination entitled to make-whole relief when an
application would have been a useless act serving only to confirm a
discriminatee's knowledge that the job he wanted was unavailable to
him. Acha v. Beame, 531 F.2d 648, 656 (CA2); Hairston
v. McLean Trucking Co., 520 F.2d 226, 231-233 (CA4); Bing
v. Roadway Express, Inc., 485 F.2d 441, 451 (CA5); United
States v. N. L. Industries, Inc., 479 F.2d 354, 369 (CA8).

															The denial of Title VII relief on the ground that the claimant
had not formally applied for the job could exclude from the Act's
coverage the victims of the most entrenched forms of
discrimination. Victims of gross and pervasive discrimination could
be denied relief precisely because the unlawful practices had been
so successful as totally to deter job applications from members of
minority groups. A per se prohibition of relief to
nonapplicants could thus put beyond the reach of equity the most
invidious effects of employment discrimination -- those that extend
to the very hope of self-realization. Such a per se limitation on the equitable powers granted to courts by Title VII
would be manifestly inconsistent with the "historic purpose of
equity to secur[e] complete justice'" and with the duty of
courts in Title VII cases "`to render a decree which will so far as
possible eliminate the discriminatory effects of the past.'" Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S.
418 . (2) To conclude that a person's failure to submit an application for
a job does not inevitably and forever foreclose his entitlement to
seniority relief under Title VII is a far cry, however, from
holding that nonapplicants are always entitled to such relief. A
nonapplicant must show that he was a potential victim of unlawful
discrimination. Because he is necessarily Page 431 U. S. 368 claiming that he was deterred from applying for the job by the
employer's discriminatory practices, his is the not always easy
burden of proving that he would have applied for the job had it not
been for those practices. Cf. Mt. Healthy City Board of
Education v. Doyle, 429 U. S. 274 .
When this burden is met, the nonapplicant is in a position
analogous to that of an applicant and is entitled to the
presumption discussed in 431 U. S. supra. The Government contends that the evidence it presented in this
case at the liability stage of the trial identified all
nonapplicants as victims of unlawful discrimination "with a fair
degree of specificity," and that the Court of Appeals'
determination that qualified nonapplicants are presumptively
entitled to an award of seniority should accordingly be affirmed.
In support of this contention, the Government cites its proof of an
extended pattern and practice of discrimination as evidence that an
application from a minority employee for a line driver job would
have been a vain and useless act. It further argues that, since the
class of nonapplicant discriminatees is limited to incumbent
employees, it is likely that every class member was aware of the
futility of seeking a line driver job, and was therefore deterred
from filing both an initial and a followup application. [ Footnote 52 ] Page 431 U. S. 369 We cannot agree. While the scope and duration of the company's
discriminatory policy can leave little doubt that the futility of
seeking line driver jobs was communicated to the company's minority
employees, that in itself is insufficient. The known prospect of
discriminatory rejection shows only that employees who wanted line
driving jobs may have been deterred from applying for them. It does
not show which of the nonapplicants actually wanted such jobs, or
which possessed the requisite qualifications. [ Footnote 53 ] There are differences between city
and line driving jobs. [ Footnote
54 ] for example, but the desirability of the latter is not so
self-evident as to warrant a conclusion that all employees would
prefer to be line drivers if given a free choice. [ Footnote 55 ] Indeed, a substantial number
of white Page 431 U. S. 370 city drivers who were not subjected to the company's
discriminatory practices were apparently content to retain their
city jobs. [ Footnote 56 ]

															In order to fill this evidentiary gap, the Government argues
that a nonapplicant's current willingness to transfer into a line
driver position confirms his past desire for the job. An employee's
response to the court-ordered notice of his entitlement to relief
[ Footnote 57 ] demonstrates,
according to this argument, that Page 431 U. S. 371 the employee would have sought a line driver job when he first
became qualified to fill one, but for his knowledge of the
company's discriminatory policy.

															This assumption falls short of satisfying the appropriate burden
of proof. An employee who transfers into a line driver unit is
normally placed at the bottom of the seniority "board." He is thus
in jeopardy of being laid off, and must, at best, suffer through an
initial period of bidding on only the least desirable runs. See
supra at 431 U. S.
343 -344, and n. 25. Nonapplicants who chose to accept
the appellate court's post hoc invitation, however, would
enter the line driving unit with retroactive seniority dating from
the time they were first qualified. A willingness to accept the job
security and bidding power afforded by retroactive seniority says
little about what choice an employee would have made had he
previously been given the opportunity freely to choose a starting
line driver job. While it may be true that many of the nonapplicant
employees desired and would have applied for line driver jobs
but.for their knowledge of the company's policy of discrimination,
the Government must carry its burden of proof, with respect to each
specific individual, at the remedial hearings to be conducted by
the District Court on remand. [ Footnote 58 ] C The task remaining for the District Court on remand will not be
a simple one. Initially, the court will have to make a substantial
number of individual determinations in deciding which of the
minority employees were actual victims Page 431 U. S. 372 of the company's discriminatory practices. After the victims
have been identified, the court must, as nearly as possible,
" recreate the conditions and relationships that would have been
had there been no'" unlawful discrimination. Franks, 424
U.S. at 424 U. S. 769 .
This process of recreating the past will necessarily involve a
degree of approximation and imprecision. Because the class of
victims may include some who did not apply for line driver jobs as
well as those who did, and because more than one minority employee
may have been denied each line driver vacancy, the court will be
required to balance the equities of each minority employee's
situation in allocating the limited number of vacancies that were
discriminatorily refused to class members. Moreover, after the victims have been identified and their
rightful place determined, the District Court will again be faced
with the delicate task of adjusting the remedial interests of
discriminatees and the legitimate expectations of other employees
innocent of any wrongdoing. In the prejudgment consent decree, see n 4, supra, the company and the Government agreed that minority
employees would assume line driver positions that had been
discriminatorily denied to them by exercising a first-priority
right to job vacancies at the company's terminals. The decree did
not determine what constituted a vacancy, but, in its final order,
the trial court defined "vacancy" to exclude any position that
became available while there were laid-off employees awaiting an
opportunity to return to work. Employees on layoff were given a
preference to fill whatever openings might occur at their terminals
during a three-year period after they were laid off. [ Footnote 59 ] Page 431 U. S. 373 The Court of Appeals rejected the preference and held that all
but "purely temporary" vacancies were to be filled according to an
employee's seniority, whether as a member of the class Page 431 U. S. 374 discriminated against or as an incumbent line driver on layoff.
517 F.2d at 322-323.

															As their final contention concerning the remedy, the company and
the union argue that the trial court correctly made the adjustment
between the competing interests of discriminatees and other
employees by granting a preference to laid-off employees, and that
the Court of Appeals erred in disturbing it. The petitioners
therefore urge the reinstatement of that part of the trial court's
final order pertaining to the rate at which victims will assume
their rightful places in the line driver hierarchy. [ Footnote 60 ]

															Although not directly controlled by the Act, [ Footnote 61 ] the extent to Page 431 U. S. 375 which the legitimate expectations of nonvictim employees should
determine when victims are restored to their rightful place is
limited by basic principles of equity. In devising and implementing
remedies under Title VII, no less than in formulating any equitable
decree, a court must draw on the

															"qualities of mercy and practicality [that] have made equity the
instrument for nice adjustment and reconciliation between the
public interest and private needs, as well as between competing
private claims." Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S.
329 -330. Cf. Phelps Dodge Corp. v. NLRB, 313
U.S. at 313 U. S.
195 -196, modifying 113 F.2d 202 (CA2); 19
N.L.R.B. 547, 600; Franks, 424 U.S. at 424 U. S.
798 -799 (POWELL, J., concurring in part and dissenting
in part). Especially when immediate implementation of an equitable
remedy threatens to impinge upon the expectations of innocent
parties, the courts must "look to the practical realities and
necessities inescapably involved in reconciling competing
interests," in order to determine the "special blend of what is
necessary, what is fair, and what is workable." Lemon v.
Kurtzman, 411 U. S. 192 , 411 U. S.
200 -201 (opinion of BURGER, C.J.).

															Because of the limited facts now in the record, we decline to
strike the balance in this Court. The District Court did not
explain why it subordinated the interests of class members to the
contractual recall expectations of other employees on layoff. When
it made that determination, however, it was considering a class of
more than 400 minority employees, all of whom had been granted some
preference in filling line driver vacancies. The overwhelming
majority of these were in the District Court's subclass three,
composed of those employees with respect to whom neither the
Government nor the company had presented any specific evidence on
the question of unlawful discrimination. Thus, when the court
considered the problem of what constituted a line driver
"vacancy" Page 431 U. S. 376 to be offered to class members, it may have been influenced by
the relatively small number of proved victims and the large number
of minority employees about whom it had no information. On the
other hand, the Court of Appeals redefined "vacancy" in the context
of what it believed to be a class of more than 400 employees who
had actually suffered from discrimination at the behest of both the
company and the union, and its determination may well have been
influenced by that understanding. For the reasons discussed in this
opinion, neither court's concept was completely valid.

															After the evidentiary hearings to be conducted on remand, both
the size and the composition of the class of minority employees
entitled to relief may be altered substantially. Until those
hearings have been conducted and both the number of identifiable
victims and the consequent extent of necessary relief have been
determined, it is not possible to evaluate abstract claims
concerning the equitable balance that should be struck between the
statutory rights of victims and the contractual rights of nonvictim
employees. That determination is best left, in the first instance,
to the sound equitable discretion of the trial court. [ Footnote 62 ] See Franks v.
Bowman Transportation Co., supra at 424 U. S. 779 ; Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 416 .
We observe only that, when the court exercises its discretion in
dealing with the problem of laid-off employees in light of the
facts developed at the hearings on remand, it should clearly state
its reasons so that meaningful review may be had on appeal. See
Franks, supra at 424 U. S. 774 ; Albemarle Paper Co. v. Moody, supra at 422 U. S. 421 n. 14.

															For all the reasons we have discussed, the judgment of the Court
of Appeals is vacated, and the cases are remanded to the Page 431 U. S. 377 District Court for further proceedings consistent with this
opinion, It is so ordered. * Together with No. 75-672, T.I.M. E.-D.C. Inc., v. United
States, et al., also on certiorari to the same court.

															[ Footnote 1 ]

															At the time of suit the statute provided as follows:

															"(a) Whenever the Attorney General has reasonable cause to
believe that any person or group of persons is engaged in a pattern
or practice of resistance to the full enjoyment of any of the
rights secured by this subchapter, and that the pattern or practice
is of such a nature and is intended to deny the full exercise of
the rights herein described, the Attorney General may bring a civil
action in the appropriate district court of the United States by
filing with it a complaint (1) signed by him (or in his absence the
Acting Attorney General), (2) setting forth facts pertaining to
such pattern or practice, and (3) requesting such relief, including
an application for a permanent or temporary injunction, restraining
order or other order against the person or persons responsible for
such pattern or practice, as he deems necessary to insure the full
enjoyment of the rights herein described."

															Section 707 was amended by § 5 of the Equal Employment
Opportunity Act of 1972, 86 Stat. 107, 42 U.S.C. § 2000e-6(c) (1970
ed., Supp. V), to give the Equal Employment Opportunity Commission,
rather than the Attorney General, the authority to bring "pattern
or practice" suits under that section against private sector
employers. In 1974, an order was entered in this action
substituting the EEOC for the United States but retaining the
United States as a party for purposes of jurisdiction,
appealability, and related matters. See 42 U.S.C. §
2000e-6(d) (1970 ed., Supp. V).

															[ Footnote 2 ]

															The named defendant in this suit was T.I.M.E. Freight, Inc., a
predecessor of T.I.M.E.-D.C. Inc. T.I.M.E.-D.C. Inc., is a
nationwide system produced by 10 mergers over a 17-year period. See United States v. T.I.M.E.-D.C. Inc., 517 F.2d 299,
304, and n. 6 (CA5). It currently has 51 terminals and operates in
26 States and thee Canadian Provinces.

															[ Footnote 3 ]

															Line drivers, also known as over-the-road drivers, engage in
long-distance hauling between company terminals. They compose a
separate bargaining unit at the company. Other distinct bargaining
units include servicemen, who service trucks, unhook
tractors and trailers, and perform similar tasks; and city
operations, composed of dockmen, hostlers, and city drivers
who pick up and deliver freight within the immediate area of a
particular terminal. All of these employees were represented by the
petitioner union.

															[ Footnote 4 ]

															Following the receipt of evidence, but before decision, the
Government and the company consented to the entry of a Decree in
Partial Resolution of Suit. The consent decree did not constitute
an adjudication on the merits. The company agreed, however, to
undertake a minority recruiting program; to accept applications
from all Negroes and Spanish-surnamed Americans who inquired about
employment, whether or not vacancies existed, and to keep such
applications on file and notify applicants of job openings; to keep
specific employment and recruiting records open to inspection by
the Government and to submit quarterly reports to the District
Court; and to adhere to certain uniform employment qualifications
respecting hiring and promotion to line driver and other jobs.

															The decree further provided that future job vacancies at any
company terminal would be filled first

															"[b]y those persons who may be found by the Court, if any, to be
individual or class discriminatees suffering the present effects of
past discrimination because of race or national origin prohibited
by Title VII of the Civil Rights Act of 1964."

															Any remaining vacancies could be filled by "any other persons,"
but the company obligated itself to hire one Negro or
Spanish-surnamed person for every white person hired at any
terminal until the percentage of minority workers at that terminal
equaled the percentage of minority group members in the population
of the metropolitan area surrounding the terminal. Finally, the
company agreed to pay $89,500 in full settlement of any backpay
obligations. Of this sum, individual payments not exceeding $1,500
were to be paid to "alleged individual and class discriminatees"
identified by the Government.

															The Decree in Partial Resolution of Suit narrowed the scope of
the litigation, but the District Court still had to determine
whether unlawful discrimination had occurred. If so, the court had
to identify the actual discriminatees entitled to fill future job
vacancies under the decree. The validity of the collective
bargaining contracts seniority system also remained for decision,
as did the question whether any discriminatees should be awarded
additional equitable relief such as retroactive seniority.

															[ Footnote 5 ]

															The District Court's memorandum decision is reported at 6 FEP
Cases 690 (1974) and 6 EPD � 8979 (1973-1974).

															[ Footnote 6 ]

															The Government did not seek relief for Negroes and
Spanish-surnamed Americans hired at a particular terminal after the
date on which that terminal first employed a minority group member
as a line driver.

															[ Footnote 7 ] See n 4, supra. [ Footnote 8 ]

															If an employee in this class had joined the company after July
2, 1965, then the date of his initial employment, rather than the
effective date of Title VII was to determine his competitive
seniority.

															[ Footnote 9 ]

															As with the other subclasses, there were a few individuals in
the third group who were found to have been discriminated against
with respect to jobs other than line driver. There is no need to
discuss them separately in this opinion.

															[ Footnote 10 ]

															This provision of the decree was qualified in one significant
respect. Under the Southern Conference Area Over-the-Road
Supplemental Agreement between the employer and the union, line
drivers employed at terminals in certain Southern States work under
a "modified" seniority system. Under the modified system, an
employee's seniority is not confined strictly to his home terminal.
If he is laid off at his Home terminal, he can move to another
terminal covered by the Agreement and retain his seniority, either
by filling a vacancy at the other terminal or by "bumping" a junior
line driver out of his job if there is no vacancy. The modified
system also requires that any new vacancy at a covered terminal be
offered to laid-off line drivers at all other covered terminals
before it is filled by any other person. The District Court's final
decree, as amended slightly by the Court of Appeals, 517 F.2d 299,
323, altered this system by requiring that any vacancy be offered
to all members of all three subclasses before it may be filled by
laid-off line drivers from other terminals.

															[ Footnote 11 ]

															Although the opinion of the Court of Appeals in this case did
not specifically mention the requirement that a vacancy exist, it
is clear from earlier and later opinions of that court that this
requirement is a part of the Fifth Circuit's "qualification date"
formula. See, e.g., Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 63 n. 29, rev'd on other grounds, post, p. 431 U. S. 395 ,
cited in 517 F.2d at 318 n. 35; Sagers v. Yellow Freight
System, Inc., 529 F.2d 721, 731-734.

															[ Footnote 12 ]

															For example, if a class member began his tenure with the company
on January 1, 1966, at which time he was qualified as a line driver
and a line driving vacancy existed, his competitive seniority upon
becoming a line driver would date back to January 1, 1966. If he
became qualified or if a vacancy opened up only at a later date,
then that later date would be used.

															[ Footnote 13 ]

															The Court of Appeals also approved (with slight modification)
the part of the District Court's order that allowed class members
to fill vacancies at a particular terminal ahead of line drivers
laid off at other terminals. See n 10, supra. [ Footnote 14 ]

															Section 703(a) of Title VII, 42 U.S.C. § 2000e 2(a) (1970 ed.
and Supp. V), provides:

															"(a) It shall be an unlawful employment practice for an employer
-- "

															"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin; or"

															"(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin."

															[ Footnote 15 ]

															"Disparate treatment" such as is alleged in the present case is
the most easily understood type of discrimination. The employer
simply treats some people less favorably than others because of
their race, color, religion, sex, or national origin. Proof of
discriminatory motive is critical, although it can in some
situations be inferred from the mere fact of differences in
treatment. See, e.g., Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U. S. 252 , 429 U. S.
265 -266. Undoubtedly disparate treatment was the most
obvious evil Congress had in mind when it enacted Title VII. See, e.g., 110 Cong.Rec. 13088 (1964) (remarks of Sen.
Humphrey) ("What the bill does . . . is simply to make it an
illegal practice to use race as a factor in denying employment. It
provides that men and women shall be employed on the basis of their
qualifications, not as Catholic citizens, not as Protestant
citizens, not as Jewish citizens, not as colored citizens, but as
citizens of the United States").

															Claims of disparate treatment may be distinguished from claims
that stress "disparate impact." The latter involve employment
practices that are facially neutral in their treatment of different
groups, but that, in fact, fall more harshly on one group than
another, and cannot be justified by business necessity. See
infra at 431 U. S. 349 .
Proof of discriminatory motive, we have held, is not required under
a disparate impact theory. Compare, e.g., Griggs v. Duke Power
Co., 401 U. S. 424 , 401 U. S.
430 -432, with McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S.
802 -806. See generally B. Schlei & P.
Grossman, Employment Discrimination Law 1-12 (1976); Blumrosen,
Strangers in Paradise: Griggs v. Duke Power Co. and the
Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972).
Either theory may, of course, be applied to a particular set of
facts.

															[ Footnote 16 ]

															The "pattern or practice" language in § 707(a) of Title VII, supra at 328 n 1, was
not intended as a term of art, and the words reflect only their
usual meaning. Senator Humphrey explained:

															"[A] pattern or practice would be present only where the denial
of rights consists of something more than an isolated, sporadic
incident, but is repeated, routine, or of a generalized nature.
There would be a pattern or practice if, for example, a number of
companies or persons in the same industry or line of business
discriminated, if a chain of motels or restaurants practiced racial
discrimination throughout all or a significant part of its system,
or if a company repeatedly and regularly engaged in acts prohibited
by the statute."

															" * * * *" "The point is that single, insignificant, isolated acts of
discrimination by a single business would not justify a finding of
a pattern or practice. . . ."

															110 Cong.Rec. 14270 (1964).

															This interpretation of "pattern or practice" appears throughout
the legislative history of § 707(a), and is consistent with the
understanding of the identical words as used in similar federal
legislation. See 110 Cong.Rec. 12946 (1964) (remarks of
Sen. Magnuson) (referring to § 206(a) of the Civil Rights Act of
1964, 42 U.S.C. § 2000a-5); 110 Cong.Rec. 13081 (1964) (remarks of
Sen. Case); id. at 14239 (remarks of Sen. Humphrey); id. at 15895 (remarks of Rep. Celler). See also United
States v. Jacksonville Terminal Co., 451 F.2d 418, 438, 441
(CA5); United States v. Ironworkers Local 86, 443 F.2d
544, 552 (CA9); United States v. West Peachtree Tenth
Corp., 437 F.2d 221, 227 (CA5); United States v.
Mayton, 335 F.2d 153, 158-159 (CA5).

															[ Footnote 17 ]

															In Atlanta, for instance, Negroes composed 22.35% of the
population in the surrounding metropolitan area and 51.31% of the
population in the city proper. The company's Atlanta terminal
employed 57 line drivers. All were white. In Los Angeles, 10.84% of
the greater metropolitan population and 17.88% of the city
population were Negro. But at the company's two Los Angeles
terminals, there was not a single Negro among the 374 line drivers.
The proof showed similar disparities in San Francisco, Denver,
Nashville, Chicago, Dallas, and at several other terminals.

															[ Footnote 18 ]

															Although line driver jobs pay more than other jobs, and the
District Court found them to be "considered the most desirable of
the driving jobs," it is by no means clear that all employees, even
driver employees, would prefer to be line drivers. See
infra at 431 U. S.
369 -370, and n. 55. Of course, Title VII provides for
equal opportunity to compete for any job, whether it is thought
better or worse than another. See, e.g., United States v. Hayes
Int'l Corp., 456 F.2d 112, 118 (CA5); United States v.
National Lead Co., 438 F.2d 935, 939 (CA8).

															[ Footnote 19 ]

															Two examples are illustrative:

															George Taylor, a Negro, worked for the company as a city driver
in Los Angeles, beginning late in 1966. In 1968, after hearing that
a white city driver had transferred to a line driver job, he told
the terminal manager that he also would like to consider line
driving. The manager replied that there would be "a lot of problems
on the road . . . with different people, Caucasian, et
cetera, " and stated: "I don't feel that the company is ready
for this right now. . . . Give us a little time. It will come
around, you know." Mr. Taylor made similar requests some months
later and got similar responses. He was never offered a line
driving job or an application.

															Feliberto Trujillo worked as a dockman at the company's Denver
terminal. When he applied for a line driver job in 1967, he was
told by a personnel officer that he had one strike against him. He
asked what that was and was told: "You're a Chicano, and as far as
we know, there isn't a Chicano driver in the system."

															[ Footnote 20 ]

															Petitioners argue that statistics, at least those comparing the
racial composition of an employer's workforce to the composition of
the population at large, should never be given decisive weight in a
Title VII case because to do so would conflict with § 703(j) of the
Act, 42 U.S.C. § 2000e 2(j). That section provides:

															"Nothing contained in this subchapter shall be interpreted to
require any employer . . . to grant preferential treatment to any
individual or to any group because of the race . . . or national
origin of such individual or group on account of an imbalance which
may exist with respect to the total number or percentage of persons
of any race . . . or national origin employed by any employer . . .
in comparison with, the total number or percentage of persons of
such race . . . or national origin in any community, State,
section, or other area, or in the available workforce in any
community, State, section, or other area."

															The argument fails in this case because the statistical evidence
was not offered or used to support an erroneous theory that Title
VII requires an employer's workforce to be racially balanced.
Statistics showing racial or ethnic imbalance are probative in a
case such as this one only because such imbalance is often a
telltale sign of purposeful discrimination; absent explanation, it
is ordinarily to be expected that nondiscriminatory hiring
practices will, in time, result in a workforce more or less
representative of the racial and ethnic composition of the
population in the community from which employees are hired.
Evidence of long-lasting and gross disparity between the
composition of a workforce and that of the general population thus
may be significant even though § 703(j) makes clear that Title VII
imposes no requirement that a workforce mirror the general
population. See, e.g., United States v. Sheet Metal Workers
Local 36, 416 F.2d 123, 127 n. 7 (CA8). Considerations such as
small sample size may, of course, detract from the value of such
evidence, see, e.g., Mayor of Philadelphia v. Educational
Equality League, 415 U. S. 605 , 415 U. S.
620 -621, and evidence showing that the figures for the
general population might not accurately reflect the pool of
qualified job applicants would also be relevant. Ibid. See generally Schlei & Grossman, supra, n 15, at 1161-1193.

															"Since the passage of the Civil Rights Act of 1964, the courts
have frequently relied upon statistical evidence to prove a
violation. . . . In many cases, the only available avenue of proof
is the use of racial statistics to uncover clandestine and covert
discrimination by the employer or union involved." United States v. Ironworkers local 86, 443 F.2d at 551. See also, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 225 n. 34 (CA5); Brown v. Gaston County Dyeing
Mach. Co., 457 F.2d 1377, 1382 (CA4); United States v.
Jacksonville Terminal Co., 451 F.2d at 442; Parham v.
Southwestern Bell Tel. Co., 433 F.2d 421, 426 (CA8); Jones
v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (CA10).

															[ Footnote 21 ]

															Between July 2, 1965, and January 1, 1969, hundreds of line
drivers were hired systemwide, either from the outside or from the
ranks of employees filling other jobs within the company. None was
a Negro. Government Exhibit 204.

															[ Footnote 22 ]

															For example, in 1971, the company hired 116 new line drivers, of
whom 16 were Negro or Spanish-surnamed Americans. Minority
employees composed 7.1% of the company's systemwide workforce in
1967 and 10.5% in 1972. Minority hiring increased greatly in 1972
and 1973, presumably due at least in part to the existence of the
consent decree. See 517 F.2d at 316 n.31.

															[ Footnote 23 ]

															The company's narrower attacks upon the statistical evidence --
that there was no precise delineation of the areas referred to in
the general population statistics, that the Government did not
demonstrate that minority populations were located close to
terminals or that transportation was available, that the statistics
failed to show what portion of the minority population was suited
by age, health, or other qualifications to hold trucking jobs, etc.
-- are equally lacking in force. At best, these attacks go only to
the accuracy of the comparison between the composition of the
company's workforce at various terminals and the general population
of the surrounding communities. They detract little from the
Government's further showing that Negroes and Spanish-surnamed
Americans who were hired were overwhelmingly excluded from line
driver jobs. Such employees were willing to work, had access to the
terminal, were healthy and of working age, and often were at least
sufficiently qualified to hold city driver jobs. Yet they became
line drivers with far less frequency than whites. See,
e.g., Pretrial Stipulation 14, summarized in 517 F.2d at 312
n. 24 (of 2,919 whites who held driving jobs in 1971, 1,802 (62%)
were line drivers and 1,117 (38%) were city drivers; of 180 Negroes
and Spanish-surnamed Americans who held driving jobs, 13 (7%) were
line drivers and 167 (93%) were city drivers).

															In any event, fine tuning of the statistics could not have
obscured the glaring absence of minority line drivers. As the Court
of Appeals remarked, the company's inability to rebut the inference
of discrimination came not from a misuse of statistics but from
"the inexorable zero." Id. at 315.

															[ Footnote 24 ]

															The company's evidence, apart from the showing of recent changes
in hiring and promotion policies, consisted mainly of general
statements that it hired only the best qualified applicants. But
"affirmations of good faith in making individual selections are
insufficient to dispel a prima facie case of systematic
exclusion." Alexander v. Louisiana, 405 U.
S. 625 , 405 U. S.
632 .

															The company also attempted to show that all of the witnesses who
testified to specific instances of discrimination either were not
discriminated against or suffered no injury. The Court of Appeals
correctly ruled that the trial judge was not bound to accept this
testimony and that it committed no error by relying instead on the
other overpowering evidence in the case. 517 F.2d at 315. The Court
of Appeals was also correct in the view that individual proof
concerning each class member's specific injury was appropriately
left to proceedings to determine individual relief. In a suit
brought by the Government under § 707(a) of the Act the District
Court's initial concern is in deciding whether the Government has
proved that the defendant has engaged m a pattern or practice of
discriminatory conduct. See infra at 431 U. S.
360 -362.

															[ Footnote 25 ]

															Certain long-distance runs, for a variety of reasons, are more
desirable than others. The best runs are chosen by the line drivers
at the top of the "board" -- a list of drivers arranged in order of
their bargaining unit seniority.

															[ Footnote 26 ]

															Both bargaining unit seniority and company seniority rights are
generally limited to service at one particular terminal, except as
modified by the Southern Conference Area Over-the-Road Supplemental
Agreement. See n 10, supra. [ Footnote 27 ]

															An example would be a Negro who was qualified to be a line
driver in 1958 but who, because of his race, was assigned instead a
job as a city driver, and is allowed to become a line driver only
in 1971. Because he loses his competitive seniority when he
transfers jobs, he is forever junior to white line drivers hired
between 1958 and 1970. The whites, rather than the Negro, will
henceforth enjoy the preferable' runs and the greater protection
against layoff. Although the original discrimination occurred in
1958 -- before the effective date of Title VII -- the seniority
system operates to carry the effects of the earlier discrimination
into the present.

															[ Footnote 28 ]

															Concededly, the view that § 703(h) does not immunize seniority
systems that perpetuate the effects of prior discrimination has
much support. It was apparently first adopted in Quarles v.
Philip Morris, Inc., 279 F.
Supp. 505 (ED Va.). The court there held that "a departmental
seniority system that has its genesis in racial
discrimination is not a bona fide seniority system." Id. at 517 (first emphasis added). The Quarles view has since enjoyed wholesale adoption in the Courts of Appeals. See, e.g., Local 189, United Papermakers & Paperworkers v.
United States, 416 F.2d 980, 987-988 (CA5); United States
v. Sheet Metal Workers Local 6, 416 F.2d at 133-134, n. 20; United States v. Bethlehem Steel Corp., 446 F.2d 652,
658-659 (CA2); United States v. Chesapeake & Ohio R.
Co., 471 F.2d 582, 587-588 (CA4). Insofar as the result in Quarles and in the cases that followed it depended upon
findings that the seniority systems were themselves "racially
discriminatory" or had their "genesis in racial discrimination,"
279 F. Supp. at 517, the decisions can be viewed as resting upon
the proposition that a seniority system that perpetuates the
effects of pre-Act discrimination cannot be bona fide if an intent
to discriminate entered into its very adoption.

															[ Footnote 29 ]

															Article 38 of the National Master Freight Agreement between the
company and the union in effect as of the date of the systemwide
lawsuit provided:

															"The Employer and the Union agree not to discriminate against
any individual with respect to his hiring, compensation, terms or
conditions of employment because of such individual's race, color,
religion, sex, or national origin, nor will they limit, segregate
or classify employees in any way to deprive any individual employee
of employment opportunities because of his race, color, religion,
sex, or national origin."

															Any discrimination by the company would apparently be a
"grievable" breach of this provision of the contract.

															[ Footnote 30 ]

															The legality of the seniority system insofar as it perpetuates
post-Act discrimination nonetheless remains at issue in this case,
in light of the injunction entered against the union. See
supra at 431 U. S. 331 .
Our decision today in United Air Lines, Inc. v. Evans,
post, p. 431 U. S. 553 , is
largely dispositive of this issue. Evans holds that the
operation of a seniority system is not unlawful under Title VII
even though it perpetuates post-Act discrimination that has not
been the subject of a timely charge by the discriminatee. Here, of
course, the government has sued to remedy the post-Act
discrimination directly, and there is no claim that any relief
would be time-barred. But this is simply an additional reason not
to hold the seniority system unlawful, since such a holding would
in no way enlarge the relief to be awarded. See Franks v.
Bowman Transportation Co., 424 U. S. 747 , 424 U. S.
778 -779. Section 703(h) on its face immunizes all bona
fide seniority systems, and does not distinguish between the
perpetuation of pre- and post-Act discrimination.

															[ Footnote 31 ]

															We also noted in McDonnell Douglas: "There are societal as well as personal interests on both sides
of this [employer employee] equation. The broad, overriding
interest, shared by employer, employee, and consumer, is efficient
and trustworthy workmanship assured through fair and racially
neutral employment and personnel decisions. In the implementation
of such decisions, it is abundantly clear that Title VII tolerates
no racial discrimination, subtle or otherwise."

															411 U.S. at 411 U. S.
801 .

															[ Footnote 32 ] Asbestos Workers Local 5 v. Vogler, 407 F.2d 1047
(CA5), provides an apt illustration. There a union had a policy of
excluding persons not related to present members by blood or
marriage. When, in 1966, suit was brought to challenge this policy,
all of the union's members were white, largely as a result of
pre-Act intentional racial discrimination. The court observed:

															"While the nepotism requirement is applicable to black and white
alike and is not, on its face, discriminatory, in a completely
white union, the present effect of its continued application is to
forever deny to negroes and Mexican-Americans any real opportunity
for membership." Id. at 1054.

															[ Footnote 33 ] E.g., H.R.Rep. No. 914, 88th Cong., 1st Sess., 65-66,
71 (1963) (minority report); 110 Cong. Rec. 48688 (1964) (remarks
of Sen. Hill); id. at 2726 (remarks of Rep. Dowdy); id. at 7091 (remarks of Sen. Stennis).

															[ Footnote 34 ]

															In addition to the material cited in Franks v. Bowman
Transportation Co., 424 U.S. at 424 U. S.
759 -762, see 110 Cong.Rec. 1518 (1964) (remarks
of Rep. Celler); id. at 6549 (remarks of Sen. Humphrey); id. at 6564 (remarks of Sen. Kuchel).

															[ Footnote 35 ]

															Senators Clark and Case were the "bipartisan captains"
responsible for Title VII during the Senate debate. Bipartisan
captains were selected for each title of the Civil Rights Act by
the leading proponents of the Act in both parties. They were
responsible for explaining their title in detail, defending it, and
leading discussion on it. See id. at 6528 (remarks of Sen.
Humphrey); Vaas, Title VII: Legislative History, 7 B. C. Ind. &
Com.L.Rev. 431, 444-445 (1966).

															[ Footnote 36 ]

															The full text of the statement is set out in Franks v.
Bowman Transportation Co., supra at 424 U. S. 760 n. 16. Senator Clark also introduced a set of answers to questions
propounded by Senator Dirksen, which included the following
exchange:

															"Question. Would the same situation prevail in respect to
promotions, when that management function is governed by a labor
contract calling for promotions on the basis of seniority? What of
dismissals? Normally, labor contracts call for 'last hired, first
fired.' If the last hired are Negroes, is the employer
discriminating if his contract requires they be first fired and the
remaining employees are white?"

															"Answer. Seniority rights are in no way affected by the bill.
If, under a 'last hired, first fired' agreement a Negro happens to
be the 'last hired,' he can still be 'first fired' as long as it is
done because of his status as 'last hired,' and not because of his
race."

															110 Cong.Rec. 7217 (1964). See Franks, supra, at 424 U. S. 760 n. 16.

															[ Footnote 37 ] See Franks v. Bowman Transportation Co., supra at 424 U. S. 761 ;
Vaas, supra, n 35,
at 435.

															[ Footnote 38 ]

															For the same reason, we reject the contention that the proviso
in § 703(h), which bars differences in treatment resulting from "an
intention to discriminate," applies to any application of a
seniority system that may perpetuate past discrimination. In this
regard the language of the Justice Department memorandum introduced
at the legislative hearings, see supra at 431 U. S. 351 ,
is especially pertinent:

															"It is perfectly clear that, when a worker is laid off or denied
a chance for promotion because under established seniority rules he
is 'low man on the totem pole' he is not being discriminated
against because of his race. . . . Any differences in treatment
based on established seniority rights would not be based on race
and would not be forbidden by the title."

															110 Cong.Rec. 7207 (1964).

															[ Footnote 39 ]

															The legislative history of the 1972 amendments to Title VII,
summarized and discussed in Franks, 424 U.S. at 424 U. S.
764 -765, n. 21; id. at 424 U. S.
796 -797, n. 18 (POWELL, J., concurring in part and
dissenting in part), in no way points to a different result. As the
discussion in Franks indicates, that history is itself
susceptible of different readings. The few broad references to
perpetuation of pre-Act discrimination or " de facto segregated job ladders," see, e.g., S.Rep. No. 92-415, pp.
5, 9 (1971); H.R.Rep. No. 92-238, pp. 8, 17 (1971), did not address
the specific issue presented by this case. And the assumption of
the authors of the Conference Report that "the present case law as
developed by the courts would continue to govern the applicability
and construction of Title VII," see Franks, supra at 424 U. S. 765 n.
21, of course does not foreclose our consideration of that issue.
More importantly, the section of Title VII that we construe here, §
703(h), was enacted in 1964, not 1972. The views of members of a
later Congress, concerning different sections of Title VII, enacted
after this litigation was commenced, are entitled to little if any
weight. It is the intent of the Congress that enacted § 703(h) in
1964, unmistakable in this case, that controls.

															[ Footnote 40 ]

															That Title VII did not proscribe the denial of fictional
seniority to pre-Act discriminatees who got no job was recognized
even in Quarles v. Philip Morris, Inc., 279 F.
Supp. 505 (ED Va.), and its progeny. Quarles stressed
the fact that the references in the legislative history were to
employment seniority, rather than departmental seniority. Id. at 516. In Local 189, United Papermakers &
Paperworkers v. United States, 416 F.2d 980 (CA5), another
leading case in this area, the court observed:

															"No doubt, Congress, to prevent 'reverse discrimination' meant
to protect certain seniority rights that could not have existed but
for previous racial discrimination. For example a Negro who had
been rejected by an employer on racial grounds before passage of
the Act could not, after being hired, claim to outrank whites who
had been hired before him but after his original rejection, even
though the Negro might have had senior status but for the past
discrimination." Id. at 994.

															[ Footnote 41 ]

															In addition, there is no reason to suppose that Congress
intended in 1964 to extend less protection to legitimate
departmental seniority systems than to plant-wide seniority
systems. Then, as now, seniority was measured in a number of ways,
including length of time with the employer, in a particular plant,
in a department, in a job, or in a line of progression. See Aaron, Reflections on the Legal Nature and
Enforceability of seniority Rights, 75 Harv.L.Rev. 1532, 1534
(1962); Cooper & Sobol, seniority and Testing under Fair
Employment Laws: A General Approach to Objective Criteria of Hiring
and Promotion, 82 Harv.L.Rev. 1598, 1602 (1969). The legislative
history contains no suggestion that any one system was
preferred.

															[ Footnote 42 ] See Georgia Highway Express, 150 N.L.R.B. 1649,
1651:

															"The Board has long held that local drivers and over-the-road
drivers constitute separate appropriate units where they are shown
to be clearly defined, homogeneous, and functionally distinct
groups with separate interests which can effectively be represented
separately for bargaining purposes. . . . In view of the different
duties and functions, separate supervision, and different bases of
payment, it is clear that the over-the-road drivers have divergent
interests from those of the employees in the [city operations] unit
. . . and should not be included in that unit."

															[ Footnote 43 ]

															The union will properly remain in this litigation as a defendant
so that full relief may be awarded the victims of the employer's
post-Act discrimination. Fed.Rule Civ.Proc.19(a). See EEOC v.
MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1095
(CA6).

															[ Footnote 44 ]

															The McDonnell Douglas case involved an individual
complainant seeking to prove one instance of unlawful
discrimination. An employer's isolated decision to reject an
applicant who belongs to a racial minority does not show that the
rejection was racially based. Although the McDonnell
Douglas formula does not require direct proof of
discrimination, it does demand that the alleged discriminatee
demonstrate at least that his rejection did not result from the two
most common legitimate reasons on which an employer might rely to
reject a job applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job sought.
Elimination of these reasons for the refusal to hire is sufficient,
absent other explanation, to create an inference that the decision
was a discriminatory one.

															[ Footnote 45 ]

															The holding in Franks that proof of a discriminatory
pattern and practice creates a rebuttable presumption in favor of
individual relief is consistent with the manner in which
presumptions are created generally. Presumptions shifting the
burden of proof are often created to reflect judicial evaluations
of probabilities and to conform with a party's superior access to
the proof. See C. McCormick, Law of Evidence §§ 337, 343
(2d ed 1972); James, Burdens of Proof, 47 Va.L.Rev. 51, 61 (1961). See also Keyes v. School Dist. No. 1, 413 U.
S. 189 , 413 U. S.
208 -209. These factors were present in Franks. Although the prima facie case did not conclusively
demonstrate that all of the employer's decisions were part of the
proved discriminatory pattern and practice, it did create a greater
likelihood that any single decision was a component of the overall
pattern. Moreover, the finding of a pattern or practice changed the
position of the employer to that of a proved wrongdoer. Finally,
the employer was in the best position to show why any individual
employee was denied an employment opportunity. Insofar as the
reasons related to available vacancies or the employer's evaluation
of the applicant's qualifications, the company's records were the
most relevant items of proof. If the refusal to hire was based on
other factors, the employer and its agents knew best what those
factors were and the extent to which they influenced the
decisionmaking process.

															[ Footnote 46 ]

															The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to
suggest that there are any particular limits on the type of
evidence a employer may use. The point is that, at the liability
stage of a "pattern or practice" trial, the focus often will not be
on individual hiring decisions, but on a pattern of discriminatory
decisionmaking. While a pattern might be demonstrated by examining
the discrete decisions of which it is composed, the Government's
suits have more commonly involved proof of the expected result of a
regularly followed discriminatory policy. In such cases, the
employer's burden is to provide a nondiscriminatory explanation for
the apparently discriminatory result. See n 20, supra, and cases cited
therein.

															[ Footnote 47 ]

															The federal courts have freely exercised their broad equitable
discretion to devise prospective relief designed to assure that
employers found to be in violation of § 707(a) eliminate their
discriminatory practices and the effects therefrom. See,
e.g., cases cited in n 51, infra. In this case, prospective relief was
incorporated in the parties' consent decree. See n 4, supra. [ Footnote 48 ]

															Nonapplicants are discussed in 431 U. S. infra. [ Footnote 49 ]

															Employees who initially applied for line driver jobs and were
hired in other jobs before the effective date of the Act, and who
did not later apply for transfer to line driver jobs, are part of
the group of nonapplicants discussed infra. [ Footnote 50 ]

															Any nondiscriminatory justification offered by the company will
be subject to further evidence by the Government that the purported
reason for an applicant's rejection was in fact a pretext for
unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S.
804 -806.

															[ Footnote 51 ]

															The far-ranging effects of subtle discriminatory practices have
not escaped the scrutiny of the federal courts, which have provided
relief from practices designed to discourage job applications from
minority group members. See, e.g., Franks v. Bowman
Transportation Co., 495 F.2d 398, 418-419 (CA5) (public
recruitment and advertising), rev'd on other grounds, 424 U. S. 424 U.S.
747; Carter v. Gallagher, 452 F.2d 315, 319 (CA8)
(recruitment); United States v. Jacksonville Terminal Co., 451 F.2d at 458 (posting of job vacancies and job qualification
requirements); United States v. Local No. 86,
Ironworkers, 315 F.
Supp. 1202 , 1238, 1245-1246 (WD Wash.) (dissemination of
information), aff'd, 443 F.2d 544 (CA9). While these
measures may be effective in preventing the deterrence of future
applicants, they afford no relief to those persons who in the past
desired jobs but were intimidated and discouraged by employment
discrimination.

															[ Footnote 52 ]

															The limitation to incumbent employees is also said to serve the
same function that actual job applications served in Franks: providing a means of distinguishing members of the
excluded minority group from minority members of the public at
large. While it is true that incumbency in this case and actual
applications in Franks both serve to narrow what might
otherwise be an impossible task, the statuses of nonincumbent
applicant and nonapplicant incumbent differ substantially. The
refused applicants in Franks had been denied an
opportunity they clearly sought, and the only issue to be resolved
was whether the denial was pursuant to a proved discriminatory
practice. Resolution of the' nonapplicant's claim, however,
requires two distinct determinations: that he would have applied
but for discrimination and that he would have been discriminatorily
rejected had he applied. The mere fact of incumbency does not
resolve the first issue, although it may tend to support a
nonapplicant's claim to the extent that it shows he was willing and
competent to work as a driver, that he was familiar with the tasks
of line drivers, etc. An incumbent's claim that he would have
applied for a line driver job would certainly be more superficially
plausible than a similar claim by a member of the general public
who may never have worked in the trucking industry or heard of the
company prior to suit.

															[ Footnote 53 ]

															Inasmuch as the purpose of the nonapplicant's burden of proof
will be to establish that his status is similar to that of the
applicant, he must bear the burden of coming forward with the basic
information about his qualifications that he would have presented
in an application. As in Franks, and in accord with 431 U. S. supra, the burden then will be on the employer to show
that the nonapplicant was nevertheless not a victim of
discrimination. For example, the employer might show that there
were other, more qualified persons who would have been chosen for a
particular vacancy, or that the nonapplicant's stated
qualifications were insufficient. See Franks, 424 U.S. at 424 U. S. 773 n. 32.

															[ Footnote 54 ]

															Of the employees for whom the Government sought transfer to line
driving jobs, nearly one-third held city driver positions

															[ Footnote 55 ]

															The company's line drivers generally earned more annually than
its city drivers, but the difference varied from under $1,000 to
more than $5,000 depending on the terminal and the year. In 1971,
city drivers at two California terminals, "LOS" and San Francisco,
earned substantially more than the line drivers at those terminals.
In addition to earnings, line drivers have the advantage of not
being required to load and unload their trucks. City drivers,
however, have regular working hours, are not required to spend
extended periods away from home and family, and do not face the
hazards of long distance driving at high speeds. As the Government
acknowledged at argument, the jobs are in some sense "parallel" --
some may prefer one job and some may prefer another.

															The District Court found generally that line driver jobs "are
considered the most desirable of the driving jobs." That finding is
not challenged here, and we see no reason to disturb it. We observe
only that the differences between city and line driving were not
such that it can be said with confidence that all minority
employees free from the threat of discriminatory treatment would
have chosen to give up city for line driving.

															[ Footnote 56 ]

															In addition to the futility of application, the Court of Appeals
seems to have relied on the minority employees' accumulated
seniority in non-line driver positions in concluding that
nonapplicants had been unlawfully deterred from applying. See 517 F.2d at 318, 320. The Government adopts that
theory here, arguing that a nonapplicant who has accrued time at
the company would be unlikely to have applied for transfer because
he would have had to forfeit all of his competitive seniority and
the job security that went with it. In view of our conclusion in 431 U. S. supra, this argument detracts from, rather than supports,
a nonapplicant's entitlement to relief. To the extent that an
incumbent was deterred from applying by his desire to retain his
competitive seniority, he simply did not want a line driver job
requiring him to start at the bottom of the "board." Those
nonapplicants who did not apply for transfer because they were
unwilling to give up their previously acquired seniority suffered
only from a lawful deterrent imposed on all employees regardless of
race or ethnicity. The nonapplicant's remedy in such cases is
limited solely to the relief, if any, to which he may be entitled
because of the discrimination he encountered at a time when he
wanted to take a starting line driver job.

															[ Footnote 57 ]

															The District Court's final order required that the company
notify each minority employee of the relief he was entitled to
claim. The employee was then required to indicate, within 60 days,
his willingness to accept the relief. Under the decision of the
Court of Appeals, the relief would be qualification date
seniority.

															[ Footnote 58 ]

															While the most convincing proof would be some overt act, such as
a pre-Act application for a line driver job, the District Court may
find evidence of an employee's informal inquiry, expression of
interest, or even unexpressed desire credible and convincing. The
question is a factual one for determination by the trial judge.

															[ Footnote 59 ]

															Paragraph 9(a) of the trial court's final order provided:

															"A 'vacancy,' as used in this Order, shall include any opening
which is caused by the transfer or promotion to a position outside
the bargaining unit, death, resignation or final discharge of an
incumbent, or by an increase in operations or business where,
ordinarily, additional employees would be put to work. A vacancy
shall not exist where there are laid off employees on the seniority
roster where the opening occurs. Such laid-off employees shall have
a preference to fill such laid off positions when these again
become open without competition from the individuals granted relief
in this case. However, if such layoff continues for three
consecutive years the position will be deemed as 'vacant' with the
right of all concerned to compete for the position, using their
respective seniority dates, including those provided for in this
Order."

															The trial court's use of a three-year recall right is apparently
derived from provisions in the collective bargaining agreements.
Article 5 of the National Master Freight Agreement (NMFA)
establishes the seniority rights of employees covered by the
Agreement. Under Art. 5,

															"[s]eniority rights for employees shall prevail. . . . Seniority
shall only be broken by discharge, voluntary quit, [or] more than a
three(3) year layoff."

															§ 1. As is evident, the three-year layoff provision in the NMFA
determines only when an employee shall lose all of his
accumulated seniority; it does not determine either the order of
layoff or the order of recall. Subject to other terms of the NMFA,
Art. 2, § 2, "[t]he extent to which seniority shall be applied as
well as the methods and procedures of such application" are left to
the Supplemental Agreements. Art. 5, § 1. The Southern Conference
Area Over-the-Road Supplemental Agreement, covering line drivers in
the Southern Conference, also provides for a complete loss of
seniority rights after a three-year layoff, Art. 42, § 1, and
further provides that, in the event of a reduction in force, "the
last employee hired shall be laid off first and when the force is
again increased, the employees are to be returned to work in the
reverse order in which they were laid off," Art. 42, § 3.

															This order of layoff and recall, however, is limited by the NMFA
in at least two situations involving an influx of employees from
outside a terminal. Art. 5, § 3(a)(1) (merger with a solvent
company), § 5(b)(2) (branch closing with transfer of operations to
another branch). In these cases the NMFA provides for "dovetailing"
the seniority rights of active and laid-off employees at the two
facilities involved. Ibid.; see also NMFA, Art 15
(honoring Military Selective Service Act of 1967). The NMFA also
recognizes that "questions of accrual, interpretation or
application of seniority rights may arise which are not covered by
the general rules set forth," and provides a procedure for
resolution of unforeseen seniority problems. Art. 5, § 7.
Presumably § 7 applies to persons claiming discriminatory denial of
jobs and seniority in violation of Art. 38, which prohibits
discrimination in hiring as well as classification of employees so
as to deprive them of employment opportunities on account of race
or national origin. See n 29, supra. The District Court apparently did
not consider these provisions when it determined the recall rights
of employees on layoff.

															[ Footnote 60 ]

															In their briefs, the petitioners also challenge the trial
court's modification of the inter-terminal transfer rights of line
drivers in the Southern Conference. See n 10, supra. This question was not
presented in either petition for certiorari, and therefore is not
properly before us. This Court's Rule 23(1)(c). Our disposition of
the claim that is presented, however, will permit the trial court
to reconsider any part of the balance it struck in dealing with
this issue.

															[ Footnote 61 ]

															The petitioners argue that to permit a victim of discrimination
to use his rightful place seniority to bid on a line driver job
before the recall of all employees on layoff would amount to a
racial or ethnic preference in violation of § 703(j) of the Act.
Section 703(j) provides no support for this argument. It provides
only that Title VII does not require an employer to grant
preferential treatment to any group in order to rectify an
imbalance between the composition of the employer's workforce and
the makeup of the population at large. See n 20, supra. To allow identifiable
victims of unlawful discrimination to participate in a layoff
recall is not the kind of "preference" prohibited by § 703(j). If a
discriminatee is ultimately allowed to secure a position before a
laid-off line driver, a question we do not now decide, he will do
so because of the bidding power inherent in his rightful place
seniority, and not because of a preference based on race. See
Franks, 424 U.S. at 424 U. S. 792 (POWELL, J., concurring in part and dissenting in part).

															[ Footnote 62 ]

															Other factors, such as the number of victims, the number of
nonvictim employees affected and the alternatives available to
them, and the economic circumstances of the industry may also be
relevant in the exercise of the District Court's discretion. See Franks, supra at 424 U. S. 796 n. 17 (POWELL, J., concurring in part and dissenting in part).

															MR. JUSTICE MARSHALL, with whom MR, JUSTICE BRENNAN joins,
concurring in part and dissenting in part.

															I agree with the Court that the United States proved that
petitioner T.I.M.E.-D. C, was guilty of a pattern or practice of
discriminating against blacks and Spanish-surnamed Americans in
hiring line drivers. I also agree that incumbent minority group
employees who show that they applied for a line driving job or that
they would have applied but for the company's unlawful acts are
presumptively entitled to the full measure of relief set forth in
our decision last Term in Franks v. Bowman Transportation
Co., 424 U. S. 747 (1976). [ Footnote 2/1 ] But I do not
agree that Title VII permits petitioners to treat Negro and
Spanish-surnamed line drivers differently from other drivers who
were hired by the company at the same time simply because the
former drivers were prevented by the company from acquiring
seniority over the road. I therefore dissent Page 431 U. S. 378 from that aspect of the Court's holding, and from the
limitations on the scope of the remedy that follow from it.

															As the Court quite properly acknowledges, ante at 431 U. S.
349 -350, the seniority provision at issue here clearly
would violate Title VII absent § 703(h), 42 U.S.C. § 2000e-2(h),
which exempts at least some seniority systems from the reach of the
Act. Title VII prohibits an employer from

															"classify[ing] his employees . . . in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex
or national origin."

															42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V).

															"Under the Act, practices, procedures, or tests neutral on their
face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior
discriminatory employment practices. " Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 430 (1971) (emphasis added). Petitioners' seniority system does
precisely that: it awards the choicest jobs and other benefits to
those possessing a credential -- seniority -- which, due to past
discrimination, blacks and Spanish-surnamed employees were
prevented from acquiring. Consequently,

															"[e]very time a Negro worker hired under the old segregated
system bids against a white worker in his job slot, the old racial
classification reasserts itself, and the Negro suffers anew for his
employer's previous bias." Local 189, United Papermakers & Paperworkers v. United
States, 416 F.2d 980, 988 (CA5 1969) (Wisdom, J.), cert.
denied, 397 U.S. 919 (1970).

															As the Court also concedes, with a touch of understatement, "the
view that § 703(h) does not immunize seniority systems that
perpetuate the effects of prior discrimination has much support." Ante at 431 U. S. 346 n. 28. Without a single dissent, six Courts of Appeals have so held
in over 30 cases, [ Footnote 2/2 ]
and two Page 431 U. S. 379 other Courts of Appeals have indicated their agreement, also
without dissent. [ Footnote 2/3 ] In
an unbroken line of cases, the Equal Employment Opportunity
Commission has reached the same Page 431 U. S. 380 conclusion. [ Footnote 2/4 ] And
the overwhelming weight of scholarly opinion is in accord.
[ Footnote 2/5 ] Yet for the second
time this Term, see General Electric Co. v. Gilbert, 429 U. S. 125 (1976), a majority of this Court overturns the unanimous conclusion
of the Courts of Appeals and the EEOC concerning the scope of Title
VII. Once again, I respectfully disagree. Page 431 U. S. 381 I Initially, it is important to bear in mind that Title VII is a
remedial statute designed to eradicate certain invidious employment
practices. The evils against which it is aimed are defined
broadly:

															"to fail . . . to hire or to discharge . . . or otherwise to
discriminate . . . with respect to . . . compensation, terms,
conditions, or privileges of employment,"

															and

															"to limit, segregate, or classify . . . in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status. "

															42 U.S.C. § 2000e-2(a) (1970 ed., Supp. V) (emphasis added).
Section 703(h) carves out an exemption from these broad
prohibitions. Accordingly, under longstanding principles of
statutory construction, the Act should "be given a liberal
interpretation . . . [and] exemptions from its sweep should be
narrowed and limited to effect the remedy intended." Piedmont
& Northern R. Co. v. ICC, 286 U.
S. 299 , 286 U. S.
311 -312 (1932); see also Spokane & Inland R. Co.
v. United States, 241 U. S. 344 , 241 U. S. 350 (1916); United States v.
Dickson , 15 Pet. 141, 40 U. S. 165 (1841) (Story, J.). Unless a seniority system that perpetuates
discrimination falls "plainly and unmistakably within [the] terms
and spirit" of § 703(h), A. H. Phillips, Inc. v. Walling, 324 U. S. 490 , 324 U. S. 493 (1945), the system should be deemed unprotected. I submit that
whatever else may be true of the section, its applicability to
systems that perpetuate past discrimination is not "plainly and
unmistakably" clear.

															The language of § 703(h) provides anything but clear support for
the Court's holding. That section provides, in pertinent part:

															"[I]t shall not be an unlawful employment practice for an
employer to apply different standards, of compensation, or
different terms, conditions or privileges of employment pursuant to
a bona fide seniority . . . system . . . provided that
such differences are not the result of an intention to Page 431 U. S. 382 discriminate because of race, color, religion, sex, or
national origin. . . . "

															(Emphasis added.)

															In this case, however, the different "privileges of employment"
for Negroes and Spanish-surnamed Americans, on the one hand, and
for all others, on the other hand, produced by petitioners'
seniority system are precisely the result of prior, intentional
discrimination in assigning jobs; but for that discrimination,
Negroes and Spanish-surnamed Americans would not be disadvantaged
by the system. Thus, if the proviso is read literally, the instant
case falls squarely within it, thereby rendering § 703(h)
inapplicable. To avoid this result, the Court is compelled to
reconstruct the proviso to read: provided that such a seniority
system "did not have its genesis in racial discrimination, and that
it was negotiated and has been maintained free from any illegal
purpose." Ante at 431 U. S. 356 .

															There are no explicit statements in the legislative history of
Title VII that warrant this radical reconstruction of the proviso.
The three documents placed in the Congressional Record by Senator
Clark concerning seniority all were written many weeks before the
Mansfield-Dirksen amendment containing § 703(h) was introduced.
Accordingly, they do not specifically discuss the meaning of the
proviso. [ Footnote 2/6 ] More
importantly, Page 431 U. S. 383 none of the documents addresses the general problem of seniority
systems that perpetuate discrimination. Not surprisingly, Congress
simply did not think of such subtleties in enacting a
comprehensive, pathbreaking Civil Rights Act. [ Footnote 2/7 ] To my mind, this is dispositive.
Absent unambiguous statutory language or an authoritative statement
in the legislative history legalizing seniority systems that
continue past wrongs, I do not see how it can be said that the §
703(h) exemption "plainly and unmistakably" applies. II Even if I were to agree that this case properly can be decided
on the basis of inferences as to Congress' intent, I still could
not accept the Court's holding. In my view, the legislative history
of the 1964 Civil Rights Act does not support the conclusion that
Congress intended to legalize seniority systems that perpetuate
discrimination, and administrative, and legislative developments
since 1964 positively refute that conclusion. A The Court's decision to uphold seniority systems that perpetuate
post-Act discrimination -- that is, seniority systems that treat
Negroes and Spanish-surnamed Americans who become line drivers as
new employees even though, after the effective date of Title VII,
these persons were discriminatorily assigned to city driver jobs
where they accumulated seniority -- is explained in a single
footnote. Ante at 431 U. S. 348 n. 30. That footnote relies almost
entirely on United Air Lines, Inc. Page 431 U. S. 384 v. Evans, post, p. 431 U. S. 553 .
But like the instant decision, Evans is devoid of any
analysis of the legislative history of § 703(h); it simply asserts
its conclusion in a single paragraph. For the Court to base its
decision here on the strength of Evans is sheer
bootstrapping.

															Had the Court objectively examined the legislative history, it
would have been compelled to reach the opposite conclusion. As we
stated just last Term, "it is apparent that the thrust of [§
703(h)] is directed toward defining what is and what is not an
illegal discriminatory practice in instances in which the post-Act
operation of a seniority system is challenged as perpetuating the
effects of discrimination occurring prior to the effective date
of the Act. " [ Footnote 2/8 ] Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 761 (emphasis added). Congress was concerned with seniority
expectations that had developed prior to the enactment of Title
VII, not with expectations arising thereafter to the extent that
those expectations were dependent on whites benefiting from
unlawful discrimination. Thus, the paragraph of the Clark-Case
Interpretive Memorandum dealing with seniority systems begins:

															"Title VII would have no effect on established seniority rights. Its effect is prospective, and not retrospective. "

															110 Cong.Rec. 7213 (1964) (emphasis added). Similarly, the
Justice Department memorandum that Senator Clark introduced
explains:

															"Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example a collective
bargaining contract provides that, in the event of layoffs, those
who were hired last must be laid off first, such a provision would
not be affected . . . by title VII. This Page 431 U. S. 385 would be true even in the case where, owing to
discrimination prior to the effective date of the title, white
workers had more seniority than Negroes . . . Any differences in
treatment based on established seniority rights would not
be based on race, and would not be forbidden by the title." Id. at 7207 (emphasis added). Finally, Senator Clark's
prepared answers to questions propounded by Senator Dirksen
stated:

															"Question. If an employer is directed to abolish his employment
list because of discrimination what happens to seniority?"

															"Answer. The bill is not retroactive, and it will not
require an employer to change existing seniority lists." Id. at 7217 (emphasis added). For the Court to ignore
this history while reaching a conclusion contrary to it is little
short of remarkable. B The legislative history of § 703(h) admittedly affords somewhat
stronger support for the Court's conclusion with respect to
seniority systems that perpetuate pre-Act discrimination -- that
is, seniority systems that treat Negroes and Spanish-surnamed
Americans who become line drivers as new employees even though
these persons were discriminatorily assigned to city driver jobs
where they accumulated seniority before the effective date of Title
VII. In enacting § 703(h), Congress intended to extend at least
some protection to seniority expectations that had developed prior
to the effective date of the Act. But the legislative history is
very clear that the only threat to these expectations that Congress
was seeking to avert was nonremedial, fictional seniority. Congress
did not want minority group members who were hired after the
effective date of the Act to be given superseniority simply because
they were members of minority groups, nor did it want the use of
seniority to be invalidated whenever it had a disparate Page 431 U. S. 386 impact on newly hired minority employees. These are the evils --
and the only evils -- that the opponents of Title VII raised
[ Footnote 2/9 ] and that the
Clark-Case Interpretive Memorandum addressed. [ Footnote 2/10 ] As the Court acknowledges, "there
seems to be no explicit reference in the legislative history to
pre-Act discriminatees already employed in less desirable jobs." Ante at 431 U. S.
354 .

															Our task, then, assuming still that the case properly can be
decided on the basis of imputed legislative intent, is "to put to
ourselves the question, which choice is it the more likely that
Congress would have made," Burnet v.
Gugenheim , 288 Page 431 U. S. 387 U.S. 280, 288 U. S. 285 (1933) (Cardozo, J.), had it focused on the problem: would it have
validated or invalidated seniority systems that perpetuate pre-Act
discrimination? To answer that question, the devastating impact of
today's holding validating such systems must be fully understood.
Prior to 1965, blacks and Spanish-surnamed Americans who were able
to find employment were assigned the lowest paid, most menial jobs
in many industries throughout the Nation, but especially in the
South. In many factories, blacks were hired as laborers while
whites were trained and given skilled positions; [ Footnote 2/11 ] in the transportation industry
blacks could only become porters; [ Footnote 2/12 ] and in steel plants blacks were assigned
to the coke ovens and blasting furnaces, "the hotter and dirtier"
places of employment. [ Footnote
2/13 ] The Court holds, in essence, that while after 1965 these
incumbent employees are entitled to an equal opportunity to advance
to more desirable jobs, to take advantage of that opportunity they
must pay a price: they must surrender the seniority they have
accumulated in their old jobs. For many, the price will be too
high, and they will be locked into their previous positions.
[ Footnote 2/14 ] Even those
willing to pay the price will Page 431 U. S. 388 have to reconcile themselves to being forever behind
subsequently hired whites who were not discriminatorily assigned.
Thus equal opportunity will remain a distant dream for all
incumbent employees.

															I am aware of nothing in the legislative history of the 1964
Civil Rights Act to suggest that, if Congress had focused on this
fact it nonetheless would have decided to write off an entire
generation of minority group employees. Nor can I believe that the
Congress that enacted Title VII would have agreed to postpone for
one generation the achievement of economic equality. The backers of
that Title viewed economic equality as both a practical necessity
and a moral imperative. [ Footnote
2/15 ] They were well aware of the corrosive impact employment
discrimination has on its victims, and on society generally.
[ Footnote 2/16 ] They sought,
therefore,

															"to eliminate those discriminatory practices and devices which
have fostered racially stratified job environments to the
disadvantage of minority citizens;" McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S. 800 (1973); see also Griggs v. Duke Power Co., 401 U.S. at 401 U. S.
429 -431; Alexander v. Gardner-Denver Co., 415 U. S. 36 , 415 U. S. 44 (1974); and "to make persons whole for injuries suffered on account
of unlawful employment discrimination," Albemarle Paper Co. v.
Moody, 422 U. S. 405 , 422 U. S. 418 (1975). In Page 431 U. S. 389 short, Congress wanted to enable black workers to assume their
rightful place in society.

															It is, of course, true that Congress was not willing to
invalidate seniority systems on a wholesale basis in pursuit of
that goal. [ Footnote 2/17 ] But
the United States, as the plaintiff suing on behalf of the
incumbent minority group employees here, does not seek to overturn
petitioners' seniority system. It seeks only to have the "time
actually worked in [minority group] jobs [recognized] as the equal
of [the majority group's] time," Local 189, United Papermakers
Paperworkers v. United States, 416 F.2d at 995, within the
existing seniority system. Admittedly, such recognition would
impinge on the seniority expectations white employees had developed
prior to the effective date of the Act. But in enacting Title VII,
Congress manifested a willingness to do precisely that. For
example, the Clark-Case Interpretive Memorandum, see 431
U.S. 324 fn2/6|>n. 6, supra, makes clear that Title
VII prohibits unions and employers from using discriminatory
waiting lists, developed prior to the effective date of the Title,
in making selections for jobs or training programs after that date.
110 Cong Rec. 7213 (1964). Such a prohibition necessarily would
disrupt the expectations of those on the lists. More generally, the
very fact that Congress made Title VII effective shortly after its
enactment demonstrates that expectations developed prior to passage
of the Act were not considered sacrosanct, since Title VII's
general ban on employment discrimination inevitably interfered with
the preexisting expectations of whites who anticipated benefiting
from continued discrimination. Thus, I am in complete agreement
with Judge Butzner's conclusion Page 431 U. S. 390 in his seminal decision in Quarles v. Philip Morris, Inc., 279 F.
Supp. 505 , 516 (ED Va.1968):

															"It is . . . apparent that Congress did not intend to freeze an
entire generation of Negro employees into discriminatory patterns
that existed before the Act. [ Footnote 2/18 ]" C If the legislative history of § 703(h) leaves any doubt
concerning the section's applicability to seniority systems that
perpetuate either pre- or post-Act discrimination, that doubt is
entirely dispelled by two subsequent developments. The Court all
but ignores both developments; I submit they are critical.

															First, in more than a score of decisions beginning at least as
early as 1969, the Equal Employment Opportunity Commission has
consistently held that seniority systems that perpetuate prior
discrimination are unlawful. [ Footnote 2/19 ] While the Court may have retreated, see General Electric Co. v. Gilbert, 429 U.
S. 125 , 429 U. S.
141 -142 (1976), from its prior view that the
interpretations of the EEOC are " entitled to great deference,'" Albemarle Paper Co. v. Moody, supra at 422 U. S. 431 ,
quoting Griggs Page 431 U. S. 391 v. Duke Power Co., supra at 401 U. S. 434 ,
I have not. Before I would sweep aside the EEOC's consistent
interpretation of the statute it administers, I would require
"`compelling indications that it is wrong.'" Espinoza v. Farah
Mfg. Co., 414 U. S. 86 , 414 U. S. 94 -95
(1973), quoting Red Lion Broadcasting Co v. FCC, 395 U. S. 367 , 395 U. S. 381 (1969). I find no such indications in the Court's opinion.

															Second, in 1972, Congress enacted the Equal Employment
Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, amending
Title VII. In so doing, Congress made very clear that it approved
of the lower court decisions invalidating seniority systems that
perpetuate discrimination. That Congress was aware of such cases is
evident from the Senate and House Committee Reports which cite the
two leading decisions, as well as several prominent law review
articles. S.Rep. No. 92-415, p. 5 n. 1 (1971); H.R.Rep. No. 92-238,
p. 8 n. 2 (1971). Although Congress took action with respect to
other lower court opinions with which it was dissatisfied,
[ Footnote 2/20 ] it made no
attempt to overrule the seniority cases. To the contrary, both the
Senate and House Reports expressed approval of the "perpetuation
principle" as applied to seniority systems [ Footnote 2/21 ] and Page 431 U. S. 392 invoked the principle to justify the Committees' recommendations
to extend Title VII's coverage to state and local government
employees, [ Footnote 2/22 ] and to
expand the' powers of the EEOC. [ Footnote 2/23 ] Moreover, the Section-by-Section
Analysis of the Page 431 U. S. 393 Conference Committee bill, which was prepared and placed in the
Congressional Record by the floor managers of the bill, stated in
"language that could hardly be more explicit," Franks v. Bowman
Transportation Co., 424 U.S. at 424 U. S. 765 n. 21, that,

															"in any areas where a specific contrary intention is not
indicated, it was assume that the present case law . . . would
continue to govern the applicability and construction of Title
VII."

															118 Cong.Rec. 7166, 7564 (1972). And, perhaps most important, in
explaining the section of the 1972 Act that empowers the EEOC "to
prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2 or 2000e-3," 42 U.S.C. §
2000e-5(a) (1970 ed., Supp. V), the Section-by-Section Analysis
declared:

															"The unlawful employment practices encompassed by sections 703
and 704 which were enumerated in 1964 by the original Act, and
as defined and expanded by the courts, remain in effect."

															118 Cong.Rec. 7167, 7564 (1972) (emphasis added). [ Footnote 2/24 ]

															We have repeatedly held:

															"When several acts of Congress are passed touching the same
subject matter, subsequent legislation may be considered to assist
in the interpretation of prior legislation upon the same
subject." Tiger v. Western Investment Co., 221 U.
S. 286 , 221 U. S. 309 (1911); see NLRB v. Bell Aerospace Co., 416 U.
S. 267 , 416 U. S. 275 (1974) (subsequent legislation Page 431 U. S. 394 entitled to "significant weight"); Red lion Broadcasting Co.
v. FCC, 395 U.S. at 395 U. S. 380 ; United States v. Stafoff, 260 U.
S. 477 , 260 U. S. 480 (1923) (Holmes, J.); New York & Norfolk R. Co. v. Peninsula
Produce Exchange, 240 U. S. 34 , 240 U. S. 39 (1916) (Hughes, J.); United States v.
Weeks , 5 Cranch 1, 9
U. S. 8 (1809). Earlier this Term, we implicitly
followed this canon in using a statute passed in 1976 to conclude
that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, enacted
in 1946, was not intended as an independent grant of jurisdiction
to the federal courts. Califano v. Sanders, 430 U. S.
99 (1977). The canon is particularly applicable here for
two reasons. First, because there is no explicit legislative
history discussing seniority systems that perpetuate
discrimination, we are required to " [seize] every thing from
which aid can be derived . . . ,'" Brown v. GSA, 425 U. S. 820 , 425 U. S. 825 (1976), quoting, United States v.
Fisher , 2 Cranch 358, 6 U. S. 386 (1805), if we are to reconstruct congressional intent. Second,
because petitioners' seniority system was readopted in collective
bargaining agreements signed after the 1972 Act took effect, any
retroactivity problems that ordinarily inhere in using a later Act
to interpret an earlier one are not present here. Cf. 87 U. S. Insurance
Cos., 20 Wall. 323, 87 U. S.
331 -332 (1874). Thus, the Court's bald assertion that
the intent of the Congress that enacted the 1972 Act is "entitled
to little if any weight," ante at 431 U. S. 354 n. 39, in construing § 703(h) is contrary to both principle and
precedent. Only last Term, we concluded that the legislative materials
reviewed above "completely [answer] the argument that Congress
somehow intended seniority relief to be less available" than
backpay as a remedy for discrimination. Franks v. Bowman
Transportation Co., supra at 424 U. S. 765 n. 21. If anything, the materials provide an even more complete
answer to the argument that Congress somehow intended to immunize
seniority systems that perpetuate past discrimination. To the
extent that today's decision grants immunity to such systems, I
respectfully dissent.

															[ Footnote 2/1 ]

															In stating that the task nonapplicants face in proving that they
should be treated like applicants is "difficult," ante at 431 U. S. 364 ,
I understand the Court simply to be addressing the facts of this
case. There may well be cases in which the jobs that the
nonapplicants seek are so clearly more desirable than their present
jobs that proving that, but for the employer's discrimination, the
nonapplicants previously would have applied will be anything but
difficult.

															Even in the present case, however, I believe the Court
unnecessarily adds to the nonapplicants' burden. While I agree that
proof of a nonapplicant's current willingness to accept a line
driver job is not dispositive of the question of whether the
company's discrimination deterred the nonapplicant from applying in
the past, I do not agree that current willingness "says little," see ante at 431 U. S. 371 ,
about past willingness. In my view, we would do well to leave
questions of this sort concerning the weight to be given particular
pieces of evidence to the district courts, rather than attempting
to resolve them through overly broad and ultimately meaningless
generalizations.

															[ Footnote 2/2 ] Acha v. Beame, 531 F.2d 648 (CA2 1976); United
States v. Bethlehem Steel Corp., 446 F.2d 652 (CA2 1971); Nance v. Union Carbide Corp., 540 F.2d 718 (CA4 1976), cert. pending, Nos. 76-824, 76-838; Patterson v.
American Tobacco Co., 535 F.2d 257 (CA4), cert.
denied, 429 U.S. 920 (1976); Russell v. American Tobacco
Co., 528 F.2d 357 (CA4 1975), cert. denied, 425 U.S.
935 (1976); Hairston v. McLean Trucking Co., 520 F.2d 226
(CA4 1975); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582 (CA4 1972), cert. denied sub nom. Railroad
Trainmen v. United States, 411 U.S. 939 (1973); Robinson
v. Lorillard Corp., 444 F.2d 791 (CA4), cert.
dismissed, 404 U.S. 1006 (1971); Griggs v. Duke Power
Co., 420 F.2d 1225 (CA4 1970), rev'd on other
grounds, 401 U. S. 401 U.S.
424 (1971); Swint v. Pullman-Standard, 539 F.2d 77 (CA5
1976); Sagers v. Yellow Freight System, 529 F.2d 721 (CA5
1976); Sabala v. Western Gillette, Inc., 516 F.2d 1251
(CA5 1975), cert. pending, Nos. 75-788, 76-1060; Gamble v. Birmingham Southern R. Co., 514 F.2d 678 (CA5
1975); Resendis v. Lee Way Motor Freight, Inc., 505 F.2d
69 (CA5 1974); Herrera v. Yellow Freight System, Inc., 505
F.2d 66 (CA5 1974); Carey v. Greyhound Bus Co., 500 F.2d
1372 (CA5 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (CA5 1974); Johnson v. Goodyear Tire & Rubber
Co., 491 F.2d 1364 (CA5 1974); Bing v. Roadway Express,
Inc., 485 F.2d 441 (CA5 1973); United States v. Georgia
Power Co., 474 F.2d 906 (CA5 1973); United States v.
Jacksonville Terminal Co., 451 F.2d 418 (CA5 1971), cert.
denied, 406 U.S. 906 (1972); Long v. Georgia Kraft
Co., 450 F.2d 557 (CA5 1971); Taylor v. Armco Steel
Corp., 429 F.2d 498 (CA5 1970); Local 189, United
Papermakers & Paperworkers v. United States, 416 F.2d 980
(CA5 1969), cert. denied, 397 U.S. 919 (1970); EEOC v.
Detroit Edison Co., 515 F.2d 301 (CA6 1975), cert.
pending, Nos. 75-220, 75-221, 75-239, 75-393; Palmer v.
General Mills, Inc., 513 F.2d 1040 (CA6 1975); Head v.
Timken Roller Bearing Co., 486 F.2d 870 (CA6 1973); Bailey
v. American Tobacco Co., 462 F.2d 160 (CA6 1972); Rogers
v. International Paper Co., 510 F.2d 1340 (CA8), summarily
vacated and remanded, 423 U.S. 809 (1975); United States
v. N. L. Industries, Inc., 479 F.2d 354 (CA8 1973); Gibson
v. Longshoremen, 543 F.2d 1259 (CA9 1976); United States
v. Navajo Freight Lines, Inc., 525 F.2d 1318 (CA9 1975).

															The leading case in this line is a District Court decision, Quarles v. Philip Morris, Inc., 279 F.
Supp. 505 (ED Va.1968).

															[ Footnote 2/3 ] Bowe v. Colgate, Palmolive Co., 489 F.2d 896 (CA7
1973); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245
(CA10 1970), cert. denied, 401 U.S. 954 (1971).

															I agree with the Court, ante at 431 U. S. 346 n. 28, that the results in a large number of the Quarles line of cases can survive today's decision. That the instant
seniority system

															"is rational, in accord with the industry practice, . . .
consistent with NLRB precedents[,] . . . did not have its genesis
in racial discrimination, and . . . was negotiated and has been
maintained free from any illegal purpose," ante at 431 U. S. 356 ,
distinguishes the facts of this case from those in many of the
prior decisions.

															[ Footnote 2/4 ]

															CCH Empl.Prac.Guide (1976) �� 6481, 6448, 6441, 6400, 6399,
6395, 6382; CCH EEOC Decisions (1973) 6373, 6370, 6366, 6365, 6355,
6334, 6313, 6272, 6223, 6217, 6214, 6211, 6197, 6195, 6188, 6176,
6169, 6044.

															[ Footnote 2/5 ]

															Blumrosen, Seniority & Equal Employment Opportunity: A
Glimmer of Hope, 23 Rutgers L.Rev. 268 (1969); Cooper & Sobol,
Seniority and Testing Under Fair Employment Laws: A General
Approach to Objective Criteria of Hiring and Promotion, 82
Harv.L.Rev. 1598 (1969); Fine: Plant Seniority and Minority
Employees: Title VII's Effect on Layoffs, 47 U.Colo.L.Rev. 73
(1975); Gould, Seniority and the Black Worker: Reflections on Quarles and its Implications, 47 Texas L.Rev. 1039 (1969);
Poplin, Fair Employment in a Depressed Economy: The Layoff Problem,
23 UCLA L.Rev. 177 (1975); S. Ross, Reconciling Plant Seniority
with Affirmative Action and Anti-Discrimination, in New York
University, Twenty-Eighth Annual Conference on Labor 231 (1976);
Developments in the Law -- Employment Discrimination and Title VII
of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1157-1164
(1971); Comment, Last Hired, First Fired Seniority, Layoffs, and
Title VII: Questions of Liability and Remedy, 11 Colum.J.Law &
Soc.Prob. 343 (1975); Note, The Problem of Last Hired, First Fired:
Retroactive Seniority as a Remedy Under Title VII, 9 Ga.L.Rev. 611
(1975); Note, Last Hired, First Fired Layoffs and Title VII, 88
Harv.L.Rev. 1544 (1975); Note, Title VII, Seniority Discrimination,
and the Incumbent Negro, 80 Harv.L.Rev. 1260 (1967); Comment, Title
VII and Seniority Systems:Back to the Foot of the Line? 64
Ky.L.Rev. 114 (1975); Comment, Layoffs and Title VII: The Conflict
Between Seniority and Equal Employment Opportunities, 1975
Wis.L.Rev. 791; 1969 Duke L.J. 1091; 46 N.C.L.Rev. 891 (1968).

															[ Footnote 2/6 ]

															The three documents, quoted in full in Franks v. Bowman
Transportation Co., 424 U. S. 747 , 424 U. S.
759 -761, nn. 15-16 (1976), and in substantial part in
today's decision, ante at 431 U. S.
350 -351, and n. 36, are (1) the Clark-Case Interpretive
Memorandum, 110 Cong.Rec. 7212-7215 (1964); (2) the Justice
Department Reply to Arguments Made by Senator Hill, id. at
7207; and (3) Senator Clark's Response to the Dirksen Memorandum, id. at 7216-7218. They were all placed in the
Congressional Record of April 8, 1964, but were not read aloud
during the debates. The Mansfield-Dirksen amendment was presented
by Senator Dirksen on May 26, 1964. Id. at 11926.

															A few general statements also were made during the course of the
debates concerning Title VII's impact on seniority, but these
statements add nothing to the analysis contained in the documents. See id. at 1518 (Rep. Cellar); id. at 6549, 11848
(Sen. Humphrey); id. at 6563-6564 (Sen. Kuchel); id. at 9113 (Sen. Keating); id. at 15893 (Rep.
McCulloch).

															[ Footnote 2/7 ]

															In amending Title VII in 1972, Congress acknowledged its own
prior naivete:

															"In 1964, employment discrimination tended to be viewed as a
series of isolated and distinguishable events, for the most part
due to ill-will on the part of some identifiable individual or
organization. . . . Experience has shown this view to be
false."

															S.Rep. No. 9215, p. 5 (1971). See H.R.Rep. No. 92-238,
p. 8 (1971).

															[ Footnote 2/8 ]

															This understanding of § 703(h) underlies Franks' holding that constructive seniority is the presumptively correct
remedy for discriminatory refusals to hire, even though awarding
such seniority necessarily disrupts the expectations of other
employees.

															[ Footnote 2/9 ]

															The most detailed attack on Title VII's effect on seniority
rights was voiced in the minority report to the House Judiciary
Committee Report, H.R.Rep. No. 914, 88th Cong., 1st Sess.
(1963):

															" The provisions of this act grant the power to destroy union
seniority. . . . [T]he extent of actions which would be taken to
destroy the seniority system is unknown and unknowable. "

															". . . Under the power granted in this bill, if a carpenters'
hiring hall, say, had 20 men awaiting call, the first 10 in
seniority being white carpenters, the union could be forced to pass
them over in favor of carpenters beneath them in seniority, but of
the stipulated race." Id. at 71 (emphasis in original). The Senate opponents
of the bill who discussed its effects on workers generally followed
this line, although the principal argument advanced in the Senate
was that Title VII would require preferential hiring of minorities. See 110 Cong.Rec. 487 (1964) (Sen. Hill); id. at
7091 (Sen. Stennis); id. at 7878 (Sen. Russell).

															[ Footnote 2/10 ]

															The Clark-Case Memorandum states:

															"Title VII would have no effect on established seniority rights.
. . . Thus, for example, if a business has been discriminating in
the past and, as a result, has an all-white working force, when the
title comes into effect, the employer's obligation would be simply
to fill future vacancies on a nondiscriminatory basis. He would not
be obliged -- or, indeed, permitted -- to fire whites in order to
hire Negroes, or to prefer Negroes for future vacancies, or, once
Negroes are hired, to give them special seniority rights at the
expense of the white workers." Id. at 7213. The remaining documents, see 431
U.S. 324 fn2/6|>n. 6, supra, while phrased more
generally, are entirely consistent with the focus of Senators Clark
and Case.

															[ Footnote 2/11 ] E.g., Johnson v. Goodyear Tire & Rubber Co., 491
F.2d 1364 (CA5 1974); United States v. N. L Industries,
Inc., 479 F.2d 354 (CA8 1973); Griggs v. Duke Power
Co., 420 F.2d 1225 (CA4 1970).

															[ Footnote 2/12 ] E.g, Carey v. Greyhound Bus Co., 500 F.2d 1372 (CA5
1974); United States v. Jacksonville Terminal Co., 451
F.2d 418 (CA5 1971).

															[ Footnote 2/13 ] United States v. Bethlehem Steel Corp., 446 F.2d at
655.

															[ Footnote 2/14 ]

															This "lock-in" effect explains why, contrary to the Court's
assertion, ante at 431 U. S. 354 ,
there is a "rational basis for distinguishing . . . claims [of
persons already employed in less desirable jobs] from those of
persons initially denied any job." Although denying constructive
seniority to the latter group will prevent them from assuming the
position they would have occupied but for the pre-Act
discrimination, it will not deter them from moving into higher
paying jobs.

															In comparing incumbent employees with pre-Act discriminatees who
were refused jobs, however, the Court assumes that § 703(h) must
mean that the latter group need not be given constructive seniority
if they are later hired. The only clear effect of § 703(h),
however, is to prevent persons who were not discriminated against
from obtaining special seniority rights because they are members of
minority groups. See supra at 431 U. S.
385 -386, and n. 10. Although it is true, as the Court
notes, ante at 431 U. S.
354 -355, n. 40, that, in Quarles and United
Papermakers, the courts concluded that persons refused jobs
prior to the Act need not be given fictional seniority, the EEOC,
CCH EEOC Decisions (1973) � 6217, and several commentators, e.g., Cooper & Sobol, supra, 431
U.S. 324 fn2/5|>n. 5; Note, supra, 431
U.S. 324 fn2/5|>n. 5, 88 Harv.L.Rev. at 1544, have rejected
this conclusion, and more recent decisions have questioned it, e.g., Watkins v. Steel Workers, 516 F.2d 41 (CA5
1975).

															[ Footnote 2/15 ] See, e.g., 110 Cong.Rec. 6547 (1964) (remarks of Sen.
Humphrey); id. at 6562 (remarks of Sen. Kuchel); id. at 7203-7204 (remarks of Sen. Clark); H.R.Rep. No.
914, Pt. 2, 88th Cong., 1st Sess., 26-29 (1963).

															[ Footnote 2/16 ] See sources cited in 431
U.S. 324 fn2/15|>n. 15, supra. [ Footnote 2/17 ]

															As one commentator has stated:

															"[T]he statute conflicts with itself. While, on the one hand,
Congress did wish to protect established seniority rights, on the
other it intended to expedite black integration into the economic
mainstream and to end, once and for all, the de facto discrimination which replaced slavery at the end of the Civil
War."

															Poplin, supra, 431
U.S. 324 fn2/5|>n. 5, at 191.

															[ Footnote 2/18 ] See also Gould, supra, 431
U.S. 324 fn2/5|>n. 5, at 1042:

															"If Congress intended to bring into being an integrated
workforce, . . . and not merely to create a paper plan meaningless
to Negro workers, the only acceptable legislative intent on past
discrimination is one that requires unions and employers to root
out the past discrimination embodied in presently nondiscriminatory
seniority arrangements so that black and white workers have equal
job advancement rights."

															[ Footnote 2/19 ] See cases cited in 431
U.S. 324 fn2/4|>n. 4, supra. The National Labor Relations Board has reached a similar
conclusion in interpreting the National Labor Relations Act, 29
U.S.C. § 151 et seq. In Local 269, Electrical
Workers, 149 N.L.R.B. 769 (1964), enforced, 357 F.2d
51 (CA3 1966), the Board held that a union hiring hall commits
present acts of discrimination when it makes referrals based on
experience if, in the past, the union has denied nonunion members
the opportunity to develop experience. See also Houston
Maritime Assn., 168 N.L.R.B. 615 (1967), enforcement
denied, 426 F.2d 584 (CA5 1970).

															[ Footnote 2/20 ]

															For example, the 1972 Act added to the definitional section of
Title VII, 42 U.S.C. § 2000e (1970 ed., Supp. V), a new subsection
(j) defining "religion" to include "religious observance and
practice, as well as belief." This subsection was added "to provide
the statutory basis for EEOC to formulate guidelines on
discrimination because of religion such as those challenged in Dewey v. Reynolds Metal Company, 429 F.2d [324] (6th
Cir.1970), Affirmed by an equally divided court, 402 U.
S. 69 (1971)." 118 Cong.Rec. 7167 (1972)
(Section-by-Section Analysis of H.R. 1746, the Equal Employment
Opportunity Act of 1972, prepared by Sens. Williams and Javits).
Dewey had questioned the authority of the EEOC to define "religion"
to encompass religious practices. Dewey v. Reynolds Metals
Co., 429 F.2d 324, 331 n. 1, 334-335 (CA6 1970).

															[ Footnote 2/21 ]

															After acknowledging the naive assumptions of the 1964 Civil
Rights Act, see 431
U.S. 324 fn2/7|>n. 7, supra, both Committee Reports
went on to state:

															"Employment discrimination as viewed today is a far more complex
and pervasive phenomenon. Experts familiar with the subject now
generally describe the problem in terms of 'systems' and 'effects,'
rather than simply intentional wrongs, and the literature on the
subject is replete with discussions of, for example, the mechanics
of seniority and lines of progression, [and] perpetuation of the
present effect of pre-act discriminatory practices through various
institutional devices. . . . In short, the problem is one whose
resolution in many instances requires not only expert assistance,
but also the technical perception that the problem exists in the
first instance, and that the system complained of is unlawful."

															S.Rep. No. 92-415, p. 5 (1971). See H.R.Rep. No.
92-238, p. 8 (1971).

															In addition, in discussing "pattern or practice" suits and the
recommendation to transfer the power to bring them to the EEOC, the
House Report singled out several seniority cases, including United Papermakers, as examples of suits that "have
contributed significantly to the Federal effort to combat
employment discrimination." H.R.Rep. No. 92-238, supra at
13, and n. 4.

															It is difficult to imagine how Congress could have better
"address[ed] the specific issue presented by this case," ante at 431 U. S. 354 n. 39, than by referring to "the mechanics of seniority . . . [and]
perpetuation of the present effect of pre-act discriminatory
practices" and by citing Quarles and United
Papermakers. [ Footnote 2/22 ]

															Both Reports stated that state and local governments had
discriminated in the past, and that "the existence of
discrimination is perpetuated by both institutional and overt
discriminatory practices . . . [such as] de facto segregated job ladders." S.Rep. No. 92-415, supra at 10;
H.R.Rep. No. 92-238, supra at 17. The same points were
made in the debate in the House and Senate. 118 Cong.Rec. 1815
(1972) (remarks of Sen. Williams); 117 Cong.Rec. 31961 (1971)
(remarks of Rep. Perkins).

															[ Footnote 2/23 ]

															The Senate Report stated:

															"It is expected that, through the administrative process, the
Commission will continue to define and develop the approaches to
handling serious problems of discrimination that are involved in
the area of employment . . . (including seniority systems)."

															S.Rep. No. 92-415, supra, at 19. The House Report
argued:

															"Administrative tribunals are better equipped to handle the
complicated issues involved in employment discrimination cases. . .
. Issues that have perplexed courts include plant-wide
restructuring of pay-scales and progression lines, seniority
rosters and testing."

															H.R.Rep. No. 92-238, supra, at 10.

															[ Footnote 2/24 ]

															By enacting a new section defining the EEOC's powers with
reference to §§ 703 and 704 of the 1964 Act, Congress in 1972
effectively reenacted those sections, and the judicial gloss that
had been placed upon them. See 2A C. Sands, Sutherland's
Statutes and Statutory Construction § 49.10 (1973) and cases cited; cf. Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S. 414 n. 8 (1975) (finding that reenactment in 1972 of backpay provision
of 1964 Act "ratified" Courts of Appeals decisions awarding backpay
to unnamed class members who had not filed charges with the
EEOC).