Thurgood Marshall - Int'l Brotherhood of Teamsters v. United States (Partial Concurrence/Dissent) lyrics

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).[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 *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 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 "cla**ify[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, s** 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, 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 cla**ification rea**erts 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 346 n. 28. Without a single dissent, six Courts of Appeals have so held in over 30 cases,[2] and two *379 other Courts of Appeals have indicated their agreement, also without dissent.[3] In an unbroken line of cases, the Equal Employment Opportunity Commission has reached the same *380 conclusion.[4] And the overwhelming weight of scholarly opinion is in accord.[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. *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 cla**ify . . . 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, 311-312 (1932); see also Spokane & Inland R. Co. v. United States, 241 U. S. 344, 350 (1916); United States v. Dickson, 15 Pet. 141, 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, 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 *382 discriminate because of race, color, religion, s**, 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 a**igning 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 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.[6] More importantly, *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.[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 a**igned to city-driver jobs where they accumulated seniority —is explained in a single footnote. Ante, at 348 n. 30. That footnote relies almost entirely on United Air Lines, Inc. *384 v. Evans, post, p. 553. But like the instant decision, Evans is devoid of any an*lysis of the legislative history of § 703 (h); it simply a**erts 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."[8]Franks v. Bowman Transportation Co., 424 U. S., at 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 *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 a**igned 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 *386 impact on newly hired minority employees. These are the evils—and the only evils—that the opponents of Title VII raised[9] and that the Clark-Case Interpretive Memorandum addressed.[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 354. Our task, then, a**uming 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. Guggenheim, 288 *387 U. S. 280, 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 a**igned 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 sk**ed positions;[11] in the transportation industry blacks could only become porters;[12] and in steel plants blacks were a**igned to the coke ovens and blasting furnaces, "the hotter and dirtier" places of employment.[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.[14] Even those willing to pay the price will *388 have to reconcile themselves to being forever behind subsequently hired whites who were not discriminatorily a**igned. 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.[15] They were well aware of the corrosive impact employment discrimination has on its victims, and on society generally.[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, 800 (1973); see also Griggs v. Duke Power Co., 401 U. S., at 429-431; Alexander v. Gardner-Denver Co., 415 U. S. 36, 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, 418 (1975). In *389 short, Congress wanted to enable black workers to a**ume 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. [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 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 pa**age of the Act were not considered sacrosanct, since Title VII's general ban on employment discrimination inevitably interfered with the pre-existing expectations of whites who anticipated benefiting from continued discrimination. Thus I am in complete agreement with Judge Butzner's conclusion *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."[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.[19] While the Court may have retreated, see General Electric Co. v. Gilbert, 429 U. S. 125, 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 431, quoting Griggs *391 v. Duke Power Co., supra, at 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, 94-95 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 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,[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[21] and *392 invoked the principle to justify the Committees' recommendations to extend Title VII's coverage to state and local government employees,[22] and to expand the powers of the EEOC.[23] Moreover, the Section-by-Section an*lysis of the *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 765 n. 21, that, "in any areas where a specific contrary intention is not indicated, it was a**umed 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 an*lysis declared: The unlawful employment practices encompa**ed 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).[24] We have repeatedly held: "When several acts of Congress are pa**ed touching the same subject matter, subsequent legislation may be considered to a**ist in the interpretation of prior legislation upon the same subject." Tiger v. Western Investment Co., 221 U. S. 286, 309 (1911); see NLRB v. Bell Aerospace Co., 416 U. S. 267, 275 (1974) (subsequent legislation *394 entitled to "significant weight"); Red Lion Broadcasting Co. v. FCC, 395 U. S., at 380; United States v. Stafoff, 260 U. S. 477, 480 (1923) (Holmes, J.); New York & Norfolk R. Co. v. Peninsula Produce Exchange, 240 U. S. 34, 39 (1916) (Hughes, J.); United States v. Weeks, 5 Cranch 1, 8 (1809). Earlier this Term, we implicitly followed this canon in using a statute pa**ed 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, 825 (1976), quoting, United States v. Fisher, 2 Cranch 358, 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. Stockdale v. Insurance Cos., 20 Wall. 323, 331-332 (1874). Thus, the Court's bald a**ertion that the intent of the Congress that enacted the 1972 Act is "entitled to little if any weight," ante, at 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 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. NOTES [1] In stating that the task nonapplicants face in proving that they should be treated like applicants is "difficult," ante, at 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 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. [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. 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). [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 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 356, distinguishes the facts of this case from those in many of the prior decisions. [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. [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). [6] The three documents, quoted in full in Franks v. Bowman Transportation Co., 424 U. S. 747, 759-761, nn. 15-16 (1976), and in substantial part in today's decision, ante, at 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 an*lysis 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). [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. 92-415, p. 5 (1971). See H. R. Rep. No. 92-238, p. 8 (1971). [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. [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 pa** 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). [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 n. 6, supra, while phrased more generally, are entirely consistent with the focus of Senators Clark and Case. [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). [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). [13] United States v. Bethlehem Steel Corp., 446 F. 2d, at 655. [14] This "lock-in" effect explains why, contrary to the Court's a**ertion, ante, at 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 a**uming 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 a**umes 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 385-386, and n. 10. Although it is true, as the Court notes, ante, at 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, n. 5; Note, supra, 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). [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). [16] See sources cited in n. 15, supra. [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, n. 5, at 191. [18] See also Gould, supra, n. 5, at 1042: "If Congress intended to bring into being an integrated work force, . . . 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." [19] See cases cited in 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). [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. 689 (1971)." 118 Cong. Rec. 7167 (1972) (Section-by-Section an*lysis 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 encompa** religious practices. Dewey v. Reynolds Metals Co., 429 F. 2d 324, 331 n. 1, 334-335 (CA6 1970). [21] After acknowledging the naive a**umptions of the 1964 Civil Rights Act, see 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 a**istance, 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 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. [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). [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. [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 re-enacted 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, 414 n. 8 (1975) (finding that re-enactment in 1972 of backpay provision of 1964 Act "ratified" Courts of Appeals decisions awarding backpay to unnamed cla** members who had not filed charges with the EEOC).