International Brotherhood of Teamsters v. United States

Facts

The statutory anchors are two provisions of Title VII. Section 703(a) makes it “an unlawful employment practice for an employer … 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.” (42 U.S.C. § 2000e-2(a); quoted at Teamsters, supra, 431 U.S. at p. 335, fn. 14.) Section 703(h) carves out a defense: “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.” (42 U.S.C. § 2000e-2(h); quoted at id. at p. 346.)

The petitioners were T.I.M.E.-D.C., Inc. — “a common carrier of motor freight with nationwide operations” assembled “by 10 mergers over a 17-year period” — and the International Brotherhood of Teamsters, which represented a large group of its employees. (Id. at pp. 328–329, & fn. 2.) “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.” (Id. at p. 329.) Line drivers are “over-the-road drivers” who “engage in long-distance hauling between company terminals” and form “a separate bargaining unit”; servicemen and city drivers hold “lower paying, less desirable jobs.” (Id. at p. 329, & fn. 3.)

The numbers. “As of March 31, 1971 … 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.” (Id. at p. 337.) With one exception, “the company and its predecessors did not employ a Negro on a regular basis as a line driver until 1969.” (Ibid.) “A great majority of the Negroes (83%) and Spanish-surnamed Americans (78%) who did work for the company held the lower paying city operations and serviceman jobs … whereas only 39% of the nonminority employees held jobs in those categories.” (Id. at pp. 337–338.) The Government “bolstered its statistical evidence with the testimony of individuals who recounted over 40 specific instances of discrimination.” (Id. at p. 338.)

The seniority system. For competitive purposes — “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.” (Id. at p. 343.) “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.’” (Ibid.) The lower courts found this “‘locked’ minority workers into inferior jobs and perpetuated prior discrimination by discouraging transfers.” (Ibid.)

Procedural history

The United States sued under § 707(a) of the Civil Rights Act of 1964, charging “a pattern and practice of employment discrimination against Negroes and Spanish-surnamed persons throughout the company’s transportation system,” and joined the union as a defendant; the actions were consolidated for trial in the Northern District of Texas. (Id. at p. 329.) After receipt of evidence, the Government and the company entered a partial consent decree that “did not constitute an adjudication on the merits.” (Id. at p. 330, fn. 4.) The District Court found the company “engaged in a plan and practice of discrimination in violation of Title VII” and that the seniority system “‘[operated] to impede the free transfer of minority groups,’” enjoining both defendants. (Id. at pp. 330–331.) It divided the “affected class” into three subclasses, awarding retroactive seniority dating to “July 2, 1965, the effective date of Title VII,” only to those who suffered “severe injury.” (Id. at pp. 331–332.)

The Fifth Circuit “agreed with the basic conclusions of the District Court” on liability and seniority, but rejected the trisection, holding that all incumbent minority employees “could use … full company seniority — even if it predated the effective date of Title VII — for all purposes,” limited by a “qualification date” formula. (Id. at pp. 333–334.) The Supreme Court granted both petitions for certiorari. (Id. at p. 334.)

Issue

The litigation “[brought] here several important questions under Title VII.” (Id. at p. 328.) The principal questions were: (1) whether the Government had proved a “pattern or practice” of employment discrimination; (2) whether § 703(h) immunized the seniority system from a Title VII attack that it perpetuated prior discrimination; and (3) the proper measure of individual relief — in particular the Government’s proof burden in a pattern-or-practice case and whether non-applicants could recover. (Id. at pp. 328, 334–335, 356–357.) The Court framed the discrimination theory as “disparate treatment” — “whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were ‘racially premised.’” (Id. at p. 335.)

Holding

Reasoning

Disparate treatment versus disparate impact. Justice Stewart, writing for seven Justices, opened by classifying the claim. “‘Disparate treatment’ … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race …. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” (Id. at p. 335, fn. 15.) That theory is distinct from disparate impact, which involves “employment practices that are facially neutral … but that in fact fall more harshly on one group than another and cannot be justified by business necessity,” and as to which “[p]roof of discriminatory motive … is not required.” (Ibid.) The footnote — citing Griggs v. Duke Power Co. (1971) 401 U.S. 424 and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 — became the canonical statement of the two-track structure of Title VII liability.

The pattern-or-practice burden. As plaintiff, the Government “bore the initial burden of making out a prima facie case of discrimination,” but because it alleged a “systemwide pattern or practice,” it “ultimately had to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” (Id. at p. 336.) The Court grounded the “pattern or practice” phrase in its “usual meaning,” quoting Senator Humphrey that such a pattern exists only where the denial of rights “is repeated, routine, or of a generalized nature,” not in “single, insignificant, isolated acts.” (Id. at p. 336, fn. 16.)

Statistics plus testimony. The company argued “that statistics can never in and of themselves prove the existence of a pattern or practice.” (Id. at p. 339.) The Court answered that “this was not a case in which the Government relied on ‘statistics alone,’” because “[t]he individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life.” (Ibid.) Statistical proof has “served and will continue to serve an important role,” and is “equally competent in proving employment discrimination.” (Id. at pp. 339–340.) The Court cautioned, however, “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.” (Id. at p. 340.) Section 703(j) — barring any reading that Title VII requires a balanced work force — did not preclude such evidence, because the statistics were offered not for racial balancing but because “imbalance is often a telltale sign of purposeful discrimination.” (Id. at p. 340, fn. 20.) The company’s “low personnel turnover” explanation failed because “many line drivers continued to be hired throughout this period, and … almost all of them were white.” (Id. at p. 341.) Its “affirmations of good faith in making individual selections [were] insufficient to dispel a prima facie case of systematic exclusion.” (Id. at p. 342, fn. 24.)

Section 703(h) shields the seniority system. Absent § 703(h), the Court conceded, the seniority system “would seem to fall under the Griggs rationale,” because “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.” (Id. at p. 349, quoting Griggs, 401 U.S. at p. 430.) 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.” (Ibid.) The Court mined the interpretive memoranda of Senators Clark and Case and the Justice Department, which assured Congress that “Title VII would have no effect on established seniority rights,” even where “owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes.” (Id. at pp. 350–351.) Section 703(h) “was drafted with an eye toward meeting the earlier criticism on this issue,” and “merely clarifies [Title VII’s] present intent and effect.” (Id. at pp. 352, fn. omitted.) The Court refused “the invitation to disembowel § 703(h)” and held that “an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination.” (Id. at pp. 353–354.) That conclusion held even for incumbent pre-Act discriminatees, since “there can be no rational basis for distinguishing their claims from those of persons initially denied any job.” (Id. at p. 354.) The system here was “entirely bona fide”: it “[applied] equally to all races,” was “rational, in accord with the industry practice,” and “did not have its genesis in racial discrimination.” (Id. at pp. 355–356.) The injunction against the union accordingly had to be vacated. (Id. at p. 356.)

The two-stage relief framework. Rejecting the company’s argument that the Government must prove each class member’s injury at the liability stage, the Court explained that pattern-or-practice suits fall “squarely within our holding in Franks.” (Id. at p. 360.) At the liability stage the Government “is not required to offer evidence that each person … was a victim”; its burden is to establish that “unlawful discrimination has been a regular procedure or policy,” after which “[t]he burden then shifts to the employer to defeat the prima facie showing … by demonstrating that the Government’s proof is either inaccurate or insignificant.” (Ibid.) At the remedial stage, “[t]he proof of the pattern or practice supports an inference that any particular employment decision … was made in pursuit of that policy,” so the Government “need only show that an alleged individual discriminatee unsuccessfully applied for a job,” shifting to the employer the burden “to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” (Id. at pp. 362, fn. omitted.) Thus “every post-Act minority group applicant for a line-driver position will be presumptively entitled to relief.” (Id. at p. 362.)

The futile-gesture doctrine. The Court held that “an incumbent employee’s failure to apply for a job is not an inexorable bar to an award of retroactive seniority.” (Id. at p. 364.) 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.” (Id. at p. 365.) In its most quoted image, the Court reasoned: “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.” (Ibid.) Hence, “[w]hen a person’s 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.” (Id. at pp. 365–366.) A per se bar “could … put beyond the reach of equity the most invidious effects of employment discrimination.” (Id. at p. 367.) But the doctrine carries a burden: a non-applicant “is necessarily claiming that he was deterred from applying … his is the not always easy burden of proving that he would have applied for the job had it not been for those practices.” (Id. at p. 368.) On the record here the Court refused to presume that all incumbents would have applied, observing that a current willingness to accept retroactive seniority “says little about what choice an employee would have made,” so individualized proof was required on remand. (Id. at pp. 369–371.)

The dissent. Justice Marshall, joined by Justice Brennan, agreed the Government proved a pattern or practice and agreed with the applicant and deterred-non-applicant relief, but dissented from the § 703(h) holding. (Id. at pp. 377–378.) He stressed that the seniority system “clearly would violate Title VII absent § 703(h),” because under Griggs neutral practices “cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” (Id. at p. 378.) He marshaled the weight of authority against the majority: “Without a single dissent, six Courts of Appeals have so held in over 30 cases,” the EEOC “in an unbroken line of cases,” and “the overwhelming weight of scholarly opinion.” (Id. at pp. 378–380.) Reading Title VII as a remedial statute whose “exemptions … should be narrowed,” he would not have construed § 703(h) to protect a system perpetuating pre-Act discrimination. (Id. at p. 381.)

Significance

Teamsters is a foundational opinion in the architecture of Title VII proof. Footnote 15 gave the bench and bar their working vocabulary — “disparate treatment” versus “disparate impact” — and that vocabulary migrated directly into California’s FEHA jurisprudence and the CACI instructions on intentional discrimination and disparate impact. The opinion’s pattern-or-practice framework — a liability stage in which the Government proves discrimination was “standard operating procedure” (431 U.S. at p. 336), followed by a remedial stage in which the proven pattern generates a rebuttable presumption in favor of each applicant — remains the template for systemic discrimination litigation and for the burden-shifting analysis courts apply to classwide claims.

Its second contribution is the futile-gesture doctrine. The “Whites Only … sign” passage (id. at p. 365) is among the most cited in employment law, standing for the proposition that a deterred non-applicant is a victim. California courts and CACI follow the same logic, while honoring the burden the Court attached: the claimant must prove he would have applied but for the discrimination. (Id. at p. 368.) For practitioners, the lesson is symmetrical — the doctrine opens a door for plaintiffs who never applied, but it does not eliminate the requirement of individualized causation proof.

The opinion’s most contested holding — the § 703(h) seniority safe harbor — has a narrower footprint today. The Court itself acknowledged that the contrary view “has much support,” and Justice Marshall catalogued the unanimous circuit and agency authority the majority overrode. (Id. at pp. 346, fn. 28, 378–380.) The 1991 Civil Rights Act later modified the statute-of-limitations rules governing challenges to seniority systems adopted with discriminatory intent, so any reliance on the seniority discussion demands a careful citator check. What endures uncontested is the disparate-treatment/disparate-impact taxonomy and the pattern-or-practice and futile-gesture frameworks.

Key quotes

“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.” (Teamsters, supra, 431 U.S. at p. 336.)

“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.” (Id. at p. 365.)

“[A]n otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate 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.” (Id. at pp. 353–354.)

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Practice pointer

Open questions

The Court expressly reserved several issues. It declined to decide whether a discriminatee could “secure a position before a laid-off line driver,” calling that “a question we do not now decide.” (Id. at p. 375, fn. 61.) It refused to “strike the balance in this Court” between the rights of victims and the contractual recall expectations of laid-off employees “[b]ecause of the limited facts now in the record,” leaving that adjustment “to the sound equitable discretion of the trial court.” (Id. at pp. 375–376.) It left for the remedial hearings the individualized determinations of “which of the minority employees were actual victims,” noting “both the size and the composition of the class … may be altered substantially.” (Id. at pp. 371–372, 376.) A petitioners’ challenge to the modification of interterminal transfer rights “was not presented in either petition for certiorari and therefore [was] not properly before us.” (Id. at p. 374, fn. 60.) And the Court grounded its Franks-based limitation by noting it expressly did “not undertake the task of statutory construction required in this litigation” in Franks v. Bowman Transportation Co. (1976) 424 U.S. 747 — leaving the § 703(h) pre-Act question, until now, an “open one[].” (Id. at pp. 346–347.)