West Virginia Human Rights Commission v. United Transportation Union , 167 W. Va. 282 ( 1981 )

Harshbarger, Chief Justice:

Plaintiffs, seventeen black railway yardmen or former yardmen of the Norfolk and Western Railroad Company, charged their employer and United Transportation Union and its Local No. 655, their union, with racial discrimination. Their seniority system put blacks in inferior positions with lesser benefits.

A complaint was filed with the West Virginia Human Rights Commission on April 3, 1971, and subsequent complaints by other plaintiffs were consolidated for hearing. The railroad settled out, and James B. McIntyre, Hearing Examiner, heard the case against the unions in 1975. McIntyre filed elaborate “Recommended Findings of Fact and Conclusion of Law”, in which he recognized violation of the West Virgina Human Rights Act and recommended certain remedies. The Commission decided facts (see Appendix), legal conclusions, and ordered remedies on August 27,1976, but at defendants’ request the Kanawha County Circuit Court vacated that order, relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). The appeal was submitted for our decision on March 10, 1981.

Did the trial court err, finding that employment policies or practices that freeze employees into a status of prior discrimination but are neutral on their face, are lawful; that Section 703(h) of the federal Civil Rights Act, 42 U.S.C. §2000e et seq. was imported into the West Virginia Human Rights Act, Code, 5-11-1 et seq.; and that defendants’ acts are not continuing violations of our Act?

I.

Our Human Rights Commission is an administrative agency, its practices and procedures subject to judicial review. Code, 29A-1-1, et seq., Administrative Procedures Act; Currey v. West Virginia Human Rights Commission, _ W.Va. _, 273 S.E.2d 77 (1980). “As a general rule administrative findings of fact are conclusive upon a reviewing court, and not within the scope of its power to review, if the findings are supported by substantial evidence or are based upon conflicting evidence.” City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833, 839 (1953). The substantial evidence rule for findings of fact applies to review of administrative agency decisions, and neither the parties nor the trial court have disagreed with the Commission’s findings of fact. We find them supported by substantial evidence, and sustain them. (See Appendix.)

II.

W. Va. Code, 5-11-1, et seq., The West Virginia Human Rights Act, enacted in 1967,

[Djeclares it “the public policy of the State of West Virginia to provide all of its citizens equal opportunity for employment” and “[ejqual opportunity in the areas of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... [race]”, Code, 5-11-2; State Human Rights Commission v. Pauley, 158 W.Va. 495, 212 S.E.2d 77, 79 (1975). The commission is responsible for “eliminat[ing] all discrimination in employment ... by virtue of ... [race]”. Code, 5-11-4.

Currey v. W. Va. Human Rights Commission, _W.Va._, 273 S.E.2d 77, 79 (1980).

Unlawful discriminatory practices are defined in Code, 5-11-9:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the State of West Virginia or its agencies or political subdivisions:

(a) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind: Provided, that it shall not be unlawful discriminatory practice for an employer to observe the provisions of any bona fide pension, retirement, group or employee insurance, or welfare benefit plan or system not adopted as a subterfuge to evade the provisions of this subdivision;

(c) For any labor organization because of race, religion, color, national origin, ancestry, sex, age or blindness of any individual to deny full and equal membership rights to any individual or otherwise to discriminate against such individuals with respect to hire, tenure, terms, conditions or privileges of employment or any other matter, directly or indirectly, related to employment.

The Legislature included a mandate that the Act “be liberally construed to accomplish its objectives and purposes”, Code, 5-11-5.

Labor union liability is, therefore, defined in Code, 5-ll-9(e), supra, forbidding unions from negotiating and signing racially discriminatory collective bargaining agreements having seniority systems that affect “tenure, terms, conditions or privileges of employment, or any other matter, directly or indirectly, related to employment.” Seniority plans affect promotions, pay scales, vacations, preferential shifts, days off, retirement, pensions, layoffs, and recalls, all of which are “terms, conditions or privileges of employment.” They are conceptually divided into two kinds: “benefit seniority” and “competitive-status seniority.” W. Gould, Black Workers in White Unions-Job Discrimination in the United States, 67-92 (1977); J. Myers, The Scope and Implementation of Retroactive Competitive-Status Seniority Awards Under Title VII, 9 Seton Hall L. Rev. 655 (1978); Comment, Seniority Systems and the Duty of Fair Representation: Union Liability in the Teamsters Context, 14 Harvard Civil Rights-Civil Liberties L. Rev. 711 (1979).

A union becomes responsible for any discrimination against individuals caused by prohibited classifications within a plan,¹ by participating with an employer in negotiating and implementing such a seniority system. The United States Supreme Court recognized union liability for discrimination as early as 1944 in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, for exclusive bargaining representatives of a craft or class of railway employees under the Railway Labor Act; and in its per curiam reversal in Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), reh. denied, 350 U.S. 943, for National Labor Relations Act exclusive bargaining representatives.

III.

We get guidance about what causes a seniority system to be discriminatory from federal cases; and Title VII cases, Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-2 et seq., provide persuasive reasoning.

In 1970, the United States Supreme Court denied certorari in Local 189, United Papermakers & Paperworkers v. United States, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. The Fifth Circuit Court of Appeals, 416 F.2d 980 (1969), had found an employer liable under Title VII because its policies renewed or exaggerated effects of past discrimination. Then the Court recognized that seniority systems can violate Title VII by perpetuating discriminatory practices even if there was no proof of intent and the practices were facially neutral. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See also Franks v. Bowman Trucking Co., 424 U.S. 747, 96A S.Ct. 1251, 47 L.Ed.2d 444 (1976).

The Griggs rationale is consistent with the purpose of our State act to eliminate employment discrimination.² Current practices, regardless of intent, that operate to lock employees into a status fixed by prior discrimination by perpetuating its effects, violate the West Virginia Human Rights Act.

In International Brotherhood of Teamsters v. United States, supra, the Court reiterated its rule that facially neutral seniority systems can be unlawful if they continue past discrimination. But because Title VII contained a special provision immunizing “bona fide” seniority systems, §703(h),³ the system was found not illegal.

Our Act does not immunize bona fide seniority systems, but only and specifically “bona fide pension, retirement, group or employee insurance, or welfare benefit plan[s].” Code, 5-11-9(a). Our Legislature had access to, and awareness of, the language and exemptions provided in Title VII when it adopted our Act, but although it chose to immunize bona fide “benefit” systems, it did not embrace in its list of exemptions “competitive-status” seniority systems that sustain discrimination. It chose to omit §703(h) language.

One kind of practice “fair in form, but discriminatory in operation” is that which perpetuates the effects of prior discrimination. 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 403, 28 L.Ed.2d 158, 91 S.Ct. 849.

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, 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.” (Emphasis added.)

Teamsters v. United States, supra 431 U.S., at 349-50, (footnote omitted).

See also California Brewers Assn. v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55, 60 (1980).

These plaintiffs are in similar “frozen positions” as were those in Teamsters. They were denied promotions and consequently the same seniority as their white counterparts, because of their race. Their inferior rank persisted. No matter how neutral the seniority system appeared, it was not neutral because the discriminatory base into which employees originally were cast was thereafter always perpetuated.

After Teamsters, Federal District Court Judge Brown wrote that seniority systems in a UTU collective bargaining agreement with The Atchison, Topeka and Santa Fe Railway Company, nearly identical to ones challenged here, violated Title VII because they froze black employees “into the positions to which they were assigned by pre-Act discrimination, and ... operate[d] to deprive them of the ‘allocation of the choicest jobs, the greatest protection against layoffs, and other advantages ..[citing Teamsters].” Sears v. Atchison, Topeka and Santa Fe Railway Company, 454 F. Supp 158, 176-77 (D. Kan. 1978). The seniority system was held not bona fide under the 703(h) exemption because it had its genesis in racial discrimination. It was “adopted and maintained during a period when segregation was standard operating procedure on the Santa Fe.” Id., at 180. See Swint v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1980), cert. granted, 49 L.W. 3788. Sears would find a violation here even if we had a 703(h)-type exemption in our statute for competitive-status seniority systems. We support its rationale wholeheartedly.

We are satisfied that the discriminatory status that prejudiced these plaintiffs does not exist for new black employees; but plaintiffs (some now retired) had rights to equal employment status with whites, Code, 5-11-2, denied; and only when they are allotted their rightful places on seniority rosters, will our human rights act requirements be satisfied.

Whites who throughout this process have gained unlawful advantage cannot complain because, as wrote the United States Fourth Circuit Court of Appeals (about N & W employees represented by this same union!): “The Norfolk and Western brakemen, whether black or white have no vested interest in their seniority that precludes the application of laws designed to eradicate racial discrimination.” Williams v. Norfolk and Western Railway Co., 530 F.2d 539, 542 (1975).

IV.

“Any complaint filed pursuant to this article must be filed within ninety days after the alleged act of discrimination.” Code, 5-11-10. This is a jurisdictional prerequisite. It measures one’s ability to gain the act’s protections, and is nonwaivable. Our commission cannot hear complaints filed more than ninety days after an alleged discriminatory act.⁴

But a seniority system superimposed on a “locked-in” status of discriminatory policies is a continuing violation of the Act. There is no evidence that these black employees are still classified “nonpromotable”; but they continuously suffer because their seniority system has never compensated them for initially putting them in inferior positions.⁵

At the same time Teamsters was decided, the Supreme Court, defining continuous violations, found that termination of employment was not an act that was a continuing violation. United Air Lines v. Evans, supra. The termination date started the filing time period.

Our definition of continuing violations⁶ is similar to that in Montgomery Ward v. Fair Employment Practices Commission, 49 Ill. App. 3d 796, 8 Ill. Dec. 297, 365 N.E.2d 535, 541-42 (1977), reh. denied, 365 N.E.2d 542. The court listed three factors to identify a continuing violation:

(1) Showing that the employee was an actual victim of the discriminatory act.

(2) This discrimination placed the employee in an inferior status due to subsequent application of an employment policy such as seniority, and

(3) That the effects of the past discrimination continued at least to a date within the limitation period before the filing of the charge.

So, there has been a continuing violation by the United Transportation Union: (1) each black plaintiff was hired and worked in a nonpromotable job classification; (2) later-hired white employees were promoted before plaintiffs, and have achieved higher seniority, giving them greater competitive-based privileges of employment; and (3) plaintiffs’ seniority ratings, derived from a period when they were prohibited by their skin color from equal employment opportunities, existed at the time these charges were filed, and exist even today.

We find that (1) present effects of past, pre-Act discrimination that freeze employees into positions, are unlawful employment practices; (2) unions can be as responsible as employers for collective bargaining agreements that perpetuate past discriminatory effects; (3) our human rights act has no provision immunizing “bona fide competitive-status based” seniority systems from proscriptions against unlawful practices; (4) prior discriminatory policies or practices, the effects of which are maintained by a seniority system, are a continuous violation of the Act; and (5) courts should not interfere with Human Rights Commission’s findings of fact if neither party challenges them or they are supported by substantial evidence.

No other issue was properly raised to this Court for adjudication. We reverse the trial court, and affirm the judgment and order of the West Virginia Human Rights Commission.

Reversed.

APPENDIX

WEST VIRGINIA HUMAN RIGHTS COMMISSION’S FINDINGS OF FACT ON COMPLAINANT NOS. E-157-71 E-159-71, E-161-71, ET SEQ.

1. The Complainants herein are seventeen black employees of the Norfolk & Western Railway (N & W), namely: Wendell English, Calbe Lilly, Harold G. R. Hobson, P. H. Wilson, J. W. French, R. N. Witten, E. D. Campbell, M. Lilly, A. L. Palmer, G. O. Baumgardner, R. H. Scruggs, N. E. Baumgardner, G. A. Saunders, Jr., F. Trigg, Jr., H. T. Alexander, T. H. Mack, and W. B. Person. All Complainants work in the “yard” classification of the N & W at its Bluefield, West Virginia yard, and are commonly known as “yardmen.” The first of the Complainants, Wendell English, was hired as a yardman by the N & W and established seniority on the yard brakeman roster in 1941; the last, W. B. Person, was hired as a yard brakeman in 1948. The seniority dates of all Complainants are shown on the Seniority Roster attached hereto as Attachment ‘A’. All Complainants are presently members of Respondent United Transportation Union, Local No. 655.

2. The Respondent United Transportation Union (UTU) is a national labor union and is the collective bargaining representative under the Railway Labor Act, 45 U.S.C. §§151 et seq., of the yardmen classification of the N & W and the classification of conductors and brakemen employed by N & Win the road service. The UTU is the successor to, and stands in the place of the Brotherhood of Railway Trainmen (BRT) which merged with other railroad unions to form the UTU in 1970. The BRT was the former collective bargaining representative of the classification of yardmen, road conductors and road brakemen employed by N & W, holding such status at the time all Complainants herein were hired.

3. Respondent United Transportation Union, Local No. 655, to which the Complainants herein belong, is the successor to, and stands in place of BRT, Pocahontas Lodge No. 533, to which Complainants belonged prior to the union merger.

4. “Yard” employees and “road” employees are the two basic classifications of employees of the N & W Railroad at the Bluefield yard. The collective bargaining agreement between the N & W Railroad and Respondents UTU and UTU, Local No. 655, govern the employment terms and conditions of all yardmen in the Bluefield yard, and all road conductors and brakemen working out of the Bluefield yard (among others). Classifications for promotion levels within the yard classification include, in order of ascending seniority and qualification requirements: brakeman, conductor, and car retarder; within the road classification: brakeman, conductor, and fireman. (There are also engineers in this classification, but they are not included in UTU). The lowest levels of both the yard and the road classifications are entry-level classifications, that it, no previous experience is required by the company or the collective bargaining agreement for hire into those classifications. Pursuant to the collective bargaining agreements in effect since at least 1954 between the N & W and either BRT or UTU, promotions within the yard classification to the higher paying positions of yard conductor or car retarder depend upon seniority established on the yard brakeman seniority roster.

5. The present and past collective bargaining agreements between the N & W and BRT or UTU provide that an employee maintains seniority within either the yard classification or the road classification, but not both. In other words, a yard man has no seniority on the road, and a road man has no seniority in the yard. A move or a transfer by an employee from one classification to another (e.g. from the yard to the road) results in a loss of all seniority accumulated in the former classification.

6. The Union constitutions of BRT before 1960 contained provisions restricting membership in the BRT to “white males, sober and industrious.” Prior to 1956, the collective bargaining agreements between the N & W and BRT designated blacks as “nonpromotable” yard men, that is, as the name implies, blacks could not be promoted out of the yard brakeman classification no matter how much seniority they had accumulated.

7. At the time all of the Complainants were hired, the N & W policy, acquised (sic) in and sanctioned by the Respondents, was that blacks were not to be hired on the road, i.e., in the road classification. When an emergency need for road men arose, senior black employees were bypassed and junior white employees were given the privilege of going on the road, usually a higher paying job. When black employees complained about this practice, all yard men, black or white, were bypassed for road service. Instead, section hands, operators and clerks, all-white classifications, were utilized for emergency road service to avoid putting blacks on the road. Several Complainants herein were told by N & W officials that blacks were not being hired on the road. Respondents herein made no attempt to correct or discontinue this form of discrimination.

8. Although employed as yard brakemen, a job classification regulated by the provisions of the collective bargaining agreements then in force between the N & W and the Respondents, the Complainants herein were systematically excluded from membership in the BRT, Pocahontas Lodge No. 533, by the provisions of section 110 of the 1950 BRT constitution and by the policies and actions of BRT, Pocahontas Lodge No. 533.

9. On December 22, 1955, at least three white yard brakemen, namely: E. H. Townley, F. W. Gott, and E. C. Perdue, were promoted to the position of yard conductor, the next highest classification within the yard, such higher classification carrying with it a commensurate higher rate of pay as set out in the collective bargaining agreement. All three white employees were junior in yard brakeman seniority to at least one of the Complainants herein. On February 27, 1956, at least ten more white yard brakemen, namely: T. A. Taylor, Jr., J. E. Morris, J. D. Clark, W. H. Francis, F. F. Beaman, G. D. Hayes, J. Davis, L. E. Hoops, R. L. Townley, and R. D. Stevens, were also promoted to the position of yard conductor. All thirteen white yard brakemen promoted in 1955 and 1956, were in fact junior in seniority to at least one and usually more of the Complainants.

10. The white yard brakemen who were promoted were notified in advance by sealed envelopes that they were being considered for promotion to the position of yard conductor, whereas not one black yard brakeman ever received notice that he would be considered for such promotion. These promotions were made without notice being posted on a company bulletin board as was and is required by the collective bargaining agreement.

11. All the white yard brakemen in question knew at the time of their promotion that they were being promoted over at least one and usually more of the Complainants herein, even though said Complainant(s) had more seniority on the yard brakeman seniority roster. From this it is fair to conclude that officials of Pocahontas Lodge No. 533 were made aware of the contract violation embodied in these promotions, especially in light of the fact that Complainant Harold G. R. Hobson, three months after being permitted to join the union in July, 1956, proposed that the local union forward a grievance letter to the terminal yard master requesting him to reconsider the promotions made a year earlier in December, 1955, and February, 1956.

12. The Respondent local permitted its first blacks, including all seventeen of the Complainants herein, to join its membership on July 22,1956. However, the Respondent local failed to supply the Complainants herein with copies of the union constitution and collective bargaining agreement, and failed to instruct or guide them regarding their rights as union members after the Complainants herein had been admitted into membership.

13. After being admitted into membership, the Complainants herein attempted to appeal to the union the aforesaid promotions of the thirteen white yard brakeman of 1954 and 1955, on the basis that said promotions were in contravention of the collective bargaining agreement in that the thirteen white yard brakemen were junior in seniority to at least one and usually more of the seventeen black yard brakemen, concerned herein. Harold G. R. Hobson, a Complainant herein, three months after being permitted to join the union, proposed that the local union forward a grievance letter to the terminal yard master requesting him to reconsider these discriminatory promotions. Even though the motion was carried, no action was taken. Hobson complained to the terminal yard master in 1956 about the promotions, and ultimately brought the grievance before the general grievance committee of the N & W system while he was president of the local. The other Complainants had communicated with Hobson with respect to their mutual grievance, and considered Mr. Hobson’s grievance to be on behalf of all the Complainants herein.

14. BRT, and BRT Pocahontas Lodge No. 533, through inaction and passivism, gave its tacit support and active consent to the promotions in question.

15. On April 4, 1966, nine of the Complainants herein, namely: W. L. English, P. H. Wilson, H. G. Hobson, J. W. French, R. N. Witten, E. D. Campbell, C. Lilly, M. Lilly and A. L. Palmer, were promoted to the position of yard conductor and established seniority on that roster behind the thirteen white employees promoted in 1955 and 1956. On April 25, 1968, seven additional Complainants, namely: G. 0. Baumgardner, R. H. Scruggs, N. E. Baumgardner, G. A. Saunders, Jr., F. Triggs, Jr., H. T. Alexander and T. H. Mack, were promoted to the position of yard conductor. On June 16, 1969, one other Complainant, W. B. Person, was promoted to the position of yard conductor. All seventeen Complainants established seniority in the yard conductor roster behind all thirteen of the white yard conductors previously promoted in 1955 and 1956.

16. Those of the Complainants who are still working for the N & W are still locked into an inferior seniority position on the yard conductor seniority roster behind those white yard conductors promoted in 1955 and 1956 who are still working for the N & W, even though the Complainants herein are senior to at least one and usually more of these employees on the yard brakeman seniority roster.

17. Because the Complainants have less seniority than the white yard conductors who were promoted around them, they have been, and presently still are, subject to being “bumped” from jobs or outbid for jobs by these white yard conductors. This has resulted in the Complainants having to take lesser paying yard brakeman j obs or less desirable shifts as yard conductors.

18. The Complainants herein have suffered and continued to suffer, monetary loss because of the actions of the Respondents herein in refusing to put them in their proper place on the yard conductors seniority roster.

19. Having failed to gain remedy or corrective action of any kind from the Respondents herein to their grievance or complaint about the promotions of 1955 and 1956, Wendell English filed a complaint with the Equal Employment Opportunity Commission in September, 1970, relating to the matters subject herein. Three of the Complainants, Wendell English, Caleb Lilly and Harold Hobson, filed complaints with the West Virginia Human Rights Commission on April 3,1971, on their behalf and on behalf of all seventeen affected black yardmen, charging the N & W and the Respondents herein with a continuing practice of racial discrimination.

20. After a staff investigation, the Commission issued a finding of Probable Cause to credit the allegations of the complaints. The complaints then proceeded to conciliation in an attempt to settle the case. As a part of a conciliation proposal approved by the N & W, a new seniority roster was drawn up for yard conductors whereby the Complainants would be put in their rightful place according to their yard brakeman seniority. However, as a result of a vote taken at a meeting of UTU Local No. 655 on September 29, 1972, the proposed settlement concerning the seniority rosters was rejected. This decision of Local No. 655 was acquiesed in and supported by the international union. As a result, the case proceeded to the present public hearing.

21. On March 11, 1975, prior to the beginning of this proceeding, Respondent N & W announced settlement on its part with Complainants and mutual assent to the signing of a conciliation agreement, a portion of which reads as follows:

‘ITEM NO. 3

A. The company agrees that the names of the Complainants will be put on the seniority roster for conductors-Pocahontas division, Bluefield yard in positions as identified by red underlining on the attached “schedule A,” at such time as such placements may be lawfully carried out and effectuated, it being understood, however, that company shall take no such action until proceeding involving claims of discrimination in said seniority roster by Complainants against the United Transportation Union as disclosed by the records of the aforesaid cases, as consolidated, pending before the Commission, wherein the United Transportation Union is named as Respondent, are finally adjudicated.’

This portion of the conciliation agreement was the same as that approved by N & Win September, 1972, and subsequently rejected by the Respondents herein on September 29, 1972. Thus, since September 29, 1972, the only obstacle to the Complainants herein being put in their proper place on the yard conductors seniority roster has been the opposition of Respondents herein. ...

1 E.E.O.C. v. Detroit Edison Co., 515 F.2d 301, 314 (6th Cir. 1975), vacated on other grounds, 431 U.S. 951 (1977); Rodriquez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974), vacated on other grounds, 431 U.S. 395 (1977); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973); Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252 (N.D. Ind. 1977); United States v. City of Buffalo, 457 F. Supp. 612 (W.D.N.Y. 1978); Dickerson v. U.S. Steel Corp., 439 F. Supp. 55 (E.D. Pa. 1977), reversed on other grounds, 582 F.2d 827 (1978); Ivey v. Western Elec. Co., 16 Empl. Prac. Dec. 5548 (N.D. Ga. 1977); E.E.O.C. v. Enterprise Ass’n. Steamfitters, 542 F.2d 579 (2d Cir. 1976); Peters v. Missouri-Pacific R. R. Co., 483 F.2d 490 (5th Cir. 1973); Note, Union Liability For Employer Discrimination, 93 Harv. L. Rev. 702 (1980); Youngdahl, Suggestions for Labor Unions Faced With Liability Under Title VII of the Civil Rights Acts of 1964, 27 Ark. L. Rev. 631 (1973).

2 Other states have adopted the Griggs test of looking to consequences rather than intent for what constitutes an unlawful employment practice: N. Inyo Hospital v. Fair Employment Practice Commission, 38 Cal. App. 3d 14, 112 Cal. Rptr. 872 (1974); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 357 A.2d 498 (1975); City of Cairo v. Fair Employment Practices Commission, 21 Ill. App. 3d 358, 315 N.E.2d 344 (1974); Indiana Civil Rights Commission v. Sunderland Lumber, Ind. App., 394 N.E.2d 949 (1979); Wilson-Sinclair Co. v. Griggs, Iowa, 211 N.W.2d 133 (1973); Middlesboro Housing Authority v. Kentucky Commission on Human Rights, Ky. App., 553 S.W.2d 57 (1977); Maine Human Rights Commission v. Local 1361, United Paperworkers International Union, AFL-CIO, Me., 383 A.2d 369 (1978); School Committee of Braintree v. Massachusetts Commission Against Discrimination, 377 Mass. 424, 386 N.E.2d 1250 (1979); Brotherhood of Railway and S.S. Clerks, Freight Handlers, Express and Station Employees, Lodge 361 v. State, 303 Minn. 178, 229 N.W.2d 3 (1975); Physicians Mutual Ins. Co. v. Duffy, 191 Neb. 233, 214 N.W.2d 471 (1974); State Division of Human Rights v. Kilian Mfg. Corp., 35 N.Y.2d 201, 360 N.Y.S.2d 603, 318 N.E.2d 770 (1974); appeal dismissed, 420 U.S. 915, 95 S.Ct. 1108, 43 L.Ed.2d 387; General Electric Corp. v. Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976); Fahn v. Cowlitz County, 93 Wash. 368, 610 P.2d 857 (1980); Wis. Tel. Co. v. Department of Industry, Labor and Human Relations, 68 Wis.2d 345, 228 N.W.2d 649 (1975).

Before Teamsters, see text infra, federal courts consistently held seniority systems violated Title VII if they perpetuated past discrimination by freezing blacks in inequitable positions. See Teamsters, supra 431 U.S., at 378 n.2 (Marshall, J., dissenting); Silbergeld, Title VII and the Collective Bargaining Agreement: Seniority Provisions Under Fire, 49 Temp. L.Q. 288 (1976); Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv. L. Rev. 1260 (1967); 34 A.L.R. Fed. 18 (1969 and Supp.).

3 42 U.S.C. §2000e-2(h):

“Seniority or merit system; ability tests. Notwithstanding any other provision of this title [42 USCS §§2000e et seq.], 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 or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, ..

4 Tolling is not involved. There is a circuit split on whether the jurisdictional filing period is absolute under Title VII, and the Supreme Court recently granted certiorari, in Zipes v. Trans World Airlines, 582 F.2d 1142 (7th Cir. 1978), cert. granted, 49 L. W. 3663 (March 10, 1981). See Annotation, Time Requirements for Civil Action for Violation of Equal Employment Opportunities Provisions Under §706 of Civil Rights Act of 1964 (42 U.S.C. 2000e-5), 4 A.L.R. Fed. 833 (1970 and Supp.).

5 Justice Neely states in his dissent, that we have here something analogous to a tort with a continuing injury. Statutes of limitations prevent victims of tortious acts, knowledgeable about their injuries, from prosecuting stale claims regardless of whether their pain persists five, seven or ten years after the commission of the tort. The tort victim’s injury is no less real in ten years, but public policy precludes presentation of his or her cause to the courts.

His argument would be interesting if we had one tortious act that resulted in one injury that simply kept on hurting. That is not this case. Everytime this seniority system is applied to plaintiffs’ status as defined by their former inclusion in a racially discriminatory job classification, there is a new injury. We do not have persisting pain from one tortious act; we have continuous injurious conduct, up to this very moment.

A correct analogy is this: If these people had been falsely imprisoned all these years, they could have brought suit at anytime within the applicable period of limitations starting from the date of their initial imprisonment; but each moment of wrongful restraint thereafter would generate a new basis for suit and would commence anew a running of time limitations on filing. See 32 Am. Jur. 2d False Imprisonment, §84.

6 Additional authority is United Air Lines, Inc. v. Evans, supra 431 U.S., at 561 (Marshall, J., dissenting). See also E.E.O.C. Interpretative Memorandum, [1977] 2 Empl. Prac. Guide (C.C.H.) ¶5029; Jackson and Matheson, The Continuing Violation Theory and the Concept of Jurisdiction in Title VII Suits, 67 Geo. L. J. 811 (1979); Note, Continuing Violations in Private Suits Under Title VII-of the Civil Rights Act of 1964, 32 Ark. L. Rev. 381 (1978).