The Court Strikes a Blow for Seniority

After passage of the landmark Civil Rights Act of 1964, federal courts responded sympathetically to lawsuits seeking an end to job discrimination in U.S. industry. The result has been measurable progress in the hiring and promotion of blacks, other minorities and women. Last week the Supreme Court took a step that seemed to brake the thrust of the past dozen-odd years. In a 7-to-2 decision, the court struck a blow for union seniority systems and weakened the basis for so-called past-discrimination suits. Through such suits minority-group workers have won retroactive seniority over whites and, in some cases, millions of dollars in back pay.

Specifically, the court ruled that a seniority system was not necessarily illegal even if its effect was to favor white males over others in bidding for promotions, protection from layoffs and similar benefits of years on the job. Justice Potter Stewart, expressing the majority's opinion, wrote that "bona fide" seniority systems with no overt racial underpinnings are not unlawful, even though such systems may in practice have the impact of discriminating against certain workers. As for discrimination that occurred prior to passage of the 1964 Civil Rights Act, the court ruled that "no person may be given retroactive seniority to a date earlier than the effective date of the act." In passing the legislation, Stewart said, it was not the intent of Congress to "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."

Seniority lists that deliberately discriminate are still illegal, whether they were started before or after the 1964 act. But that concession gave little comfort to lawyers who have waged crusades against job bias. Proving that a seniority system was set up with the intent to discriminate is extraordinarily difficult. The result: last week's decision almost eliminates long-established seniority systems as whipping boys for job-bias activists.

Said N.A.A.C.P. Washington Bureau Director Clarence Mitchell: "It seems to me that the court did not do its homework—or at least that seven Justices did not—because the decision distorts the clear intent of Congress. Congress did not intend to preserve a discriminatory seniority system." The two dissenting Justices, Thurgood Marshall and William J. Brennan, called the decision "devastating." They said it worked against the spirit of the court's own ruling last year that retroactive seniority must be granted to workers who can prove job bias (TIME, April 5,1976).