This case presents the question whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. IV), may be awarded seniority status retroactive to the dates of their employment applications.
Petitioner Franks brought this class action in the United States District Court for the Northern District of Georgia against his former employer, respondent Bowman Transportation Co., and his unions, the International Union of District 50, Allied and Technical Workers of the United States and Canada, and its local, No. 13600,
In its final judgment entered July 14, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered Bowman to notify the members of both sub-classes within 30 days of their right to priority consideration for such jobs. The District Court declined, however, to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position.
On petitioners' appeal to the Court of Appeals for the Fifth Circuit, raising for the most part claimed inadequacy of the relief ordered respecting unnamed members of the various subclasses involved, the Court of Appeals affirmed in part, reversed in part, and vacated in part. 495 F.2d 398 (1974). The Court of Appeals
Respondent Bowman raises a threshold issue of mootness. The District Court found that Bowman had hired petitioner Lee, the sole-named representative of class 3, and had subsequently properly discharged him for cause,
Sosna involved a challenge to a one-year residency requirement in a state divorce statute. The District Court properly certified the action as a class action. However, before the case reached this Court, the named representative satisfied the state residency requirement (and had in fact obtained a divorce in another State). 419 U. S., at 398, and n. 7. Although the named representative no longer had a personal stake in the outcome, we held that "[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named representative]," id., at 399, and, accordingly the "cases or controversies" requirement of Art. III of the Constitution was satisfied. Id., at 402.
It is true as Bowman emphasizes that Sosna was an instance of the "capable of repetition, yet evading review" aspect of the law of mootness. Id., at 399-401. And that aspect of Sosna was remarked in Board of School Comm'rs v. Jacobs, supra, a case which was held to
There can be no question that this certified class action "clearly presented" the District Court and the Court of Appeals "with a case or controversy in every sense contemplated by Art. III of the Constitution." Sosna, supra, at 398. Those courts were presented with the seniority question "in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast, supra, at 95. The only constitutional mootness question is therefore whether, with regard to the seniority issues presented, "a live controversy [remains] at the time this Court reviews the case." Sosna, supra, at 402.
The unnamed members of the class are entitled to the relief already afforded Lee, hiring and backpay, and thus to that extent have "such a personal stake in the outcome of the controversy [whether they are also entitled to seniority relief] as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult. . . questions." Baker v. Carr, 369 U.S. 186, 204 (1962). Given a properly certified class action, Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to
The unnamed members of the class involved are identifiable individuals, individually named in the record. Some have already availed themselves of the hiring relief ordered by the District Court and are presently employed as OTR drivers by Bowman. Tr. of Oral Arg. 23. The conditions of that employment are now and so far as can be foreseen will continue to be partially a function of their status in the seniority system. The rights of other members of the class to employment under the District Court's orders are currently the subject of further litigation in that court. Id., at 15. No questions are raised concerning the continuing desire of any of these class members for the seniority relief presently in issue. No questions are raised concerning the tenacity and competence of their counsel in pursuing that mode of legal relief before this Court. It follows that there is no meaningful sense in which a "live controversy" reflecting the issues before the Court could
In affirming the District Court's denial of seniority relief to the class 3 group of discriminatees, the Court of Appeals held that the relief was barred by § 703 (h) of Title VII, 42 U. S. C. § 2000e-2 (h). We disagree. Section 703 (h) provides in pertinent part:
The Court of Appeals reasoned that a discriminatory refusal to hire "does not affect the bona fides of the seniority system. Thus, the differences in the benefits and conditions of employment which a seniority system accords to older and newer employees is protected [by § 703 (h)] as `not an unlawful employment practice.' " 495 F. 2d, at 417. Significantly, neither Bowman nor the unions undertake to defend the Court of Appeals' judgment on that ground. It is clearly erroneous.
The black applicants for OTR positions composing class 3 are limited to those whose applications were put
On its face, § 703 (h) appears to be only a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not.
There remains the question whether an award of seniority relief is appropriate under the remedial provisions of Title VII, specifically, § 706 (g).
Seniority systems and the entitlements conferred by credits earned thereunder are of vast and increasing importance in the economic employment system of this Nation. S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 104-115 (1960). Seniority principles are increasingly used to allocate entitlements to scarce benefits among competing employees ("competitive status" seniority) and to compute noncompetitive benefits earned under the contract of employment ("benefit" seniority). Ibid. We have already said about "competitive status" seniority that it "has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job." Humphrey v. Moore, 375 U.S. 335, 346-347 (1964). "More than any other provision of the collective [-bargaining] agreement . . . seniority affects the economic security of the individual employee covered by its terms." Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1535 (1962). "Competitive status" seniority also often plays a broader role in modern employment systems, particularly systems operated under collective-bargaining agreements:
Seniority standing in employment with respondent Bowman, computed from the departmental date of hire, determines the order of layoff and recall of employees.
The Court of Appeals apparently followed this reasoning in holding that the District Court erred in not granting seniority relief to class 4 Bowman employees who were discriminatorily refused transfer to OTR positions. Yet the class 3 discriminatees in the absence of a comparable seniority award would also remain subordinated in the seniority system to the class 4 discriminatees. The distinction plainly finds no support anywhere in Title VII or its legislative history. Settled law dealing with the related "twin" areas of discriminatory hiring and discharges violative of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., provides a persuasive analogy. "[I]t would indeed be surprising if Congress gave a remedy for the one which it denied for the other."
Similarly, decisions construing the remedial section of the National Labor Relations Act, § 10 (c), 29 U. S. C. § 160 (c)—the model for § 706 (g), Albemarle Paper, 422 U. S., at 419
We are not to be understood as holding that an award of seniority status is requisite in all circumstances. The fashioning of appropriate remedies invokes the sound equitable discretion of the district courts. Respondent Bowman attempts to justify the District Court's denial of seniority relief for petitioners as an exercise of equitable discretion, but the record is its own refutation of the argument.
Albemarle Paper, supra, at 416, made clear that discretion imports not the court's " `inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles.' " Discretion is vested not for purposes of "limit[ing] appellate review of trial courts, or . . . invit[ing] inconsistency and caprice," but rather to allow the most complete achievement of the objectives
The District Court stated two reasons for its denial of seniority relief for the unnamed class members.
The second reason stated by the District Court was that such claims "presuppose a vacancy, qualification,
We read the District Court's reference to the lack of evidence regarding a "vacancy, qualification, and performance" for every individual member of the class as an expression of concern that some of the unnamed class members (unhired black applicants whose employment applications were summarized in the record) may not in fact have been actual victims of racial discrimination. That factor will become material however only when those persons reapply for OTR positions pursuant to the hiring relief ordered by the District Court. Generalizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class. Rather, at such time as individual class members seek positions as OTR drivers, positions for which they are presumptively entitled to priority hiring consideration under the District Court's order,
Respondent Bowman raises an alternative theory of justification. Bowman argues that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other Bowman employees. Accordingly, it is argued, the District Court acted within its discretion in denying this form of relief as an attempt to accommodate the competing interests of the various groups of employees.
Certainly there is no argument that the award of retroactive seniority to the victims of hiring discrimination in any way deprives other employees of indefeasibly vested rights conferred by the employment contract. This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest.
In holding that class-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally appropriate under § 706 (g), we do not in any way modify our previously expressed view that the statutory scheme of Title VII "implicitly recognizes that there may be cases calling for one remedy but not another, and—owing to the structure of the federal judiciary —these choices are, of course, left in the first instance to the district courts." Albemarle Paper, 422 U. S., at 416. Circumstances peculiar to the individual case may, of course, justify the modification or withholding of seniority relief for reasons that would not if applied generally undermine the purposes of Title VII.
Accordingly, the judgment of the Court of Appeals affirming the District Court's denial of seniority relief to class 3 is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.
I agree generally with MR. JUSTICE POWELL, but I would stress that although retroactive benefit-type seniority relief may sometimes be appropriate and equitable, competitive-type seniority relief at the expense of wholly
I would stress that the Court today does not foreclose claims of employees who might be injured by this holding from securing equitable relief on their own behalf.
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST joins, concurring in part and dissenting in part.
I agree that this controversy is not moot, and that in the context of a duly certified class action the "capable of repetition, yet evading review" criterion discussed last Term in Sosna v. Iowa, 419 U.S. 393 (1975), is only a factor in our discretionary decision whether to reach the merits of an issue, rather than an Art. III "case or controversy" requirement. I therefore concur in Part I of the Court's opinion.
I also agree with Part II of the opinion insofar as it determines the "thrust" of § 703 (h) of Title VII to be the insulation of an otherwise bona fide seniority system from a challenge that it amounts to a discriminatory practice because it perpetuates the effects of pre-Act discrimination. Ante, at 761. Therefore, I concur in the precise holding of Part II, which is that the Court of Appeals erred in interpreting § 703 (h) as a bar, in
Although I am in accord with much of the Court's discussion in Parts III and IV, I cannot accept as correct its basic interpretation of § 706 (g) as virtually requiring a district court, in determining appropriate equitable relief in a case of this kind, to ignore entirely the equities that may exist in favor of innocent employees. Its holding recognizes no meaningful distinction, in terms of the equitable relief to be granted, between "benefit"-type seniority and "competitive"-type seniority.
My starting point, as it is for the Court, is the decision last Term in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). One of the issues there was the standards a federal district court should follow in determining whether victims of a discriminatory employment practice should be awarded backpay. The Court began with
Backpay is the only remedy accompanying reinstatement that is mentioned specifically in Title VII. Moreover, as noted below, backpay is a remedy central to achieving the purposes of the Act. The Court in Albemarle, recognizing that equitable discretion under § 706 (g) should not be left "unfettered by meaningful standards or shielded from thorough appellate review," 422 U. S., at 416, required of district courts the "principled application of standards [in determining backpay awards] consistent with [congressional] purposes," id., at 417. It identified two distinct congressional purposes implicit in Title VII. The "primary objective" was "prophylactic": " `to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.' " Ibid., quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971). The second purpose was "to make persons whole for injuries suffered on account of unlawful employment discrimination." 422 U. S., at 418. Because backpay served both objectives,
The Court today, relying upon Albemarle's holding as to the "make whole" purpose of Title VII, reasons that adequate relief for a victim of discrimination ordinarily will require "slotting the victim in that position in the seniority system that would have been his had he been hired at the time of his application." Ante, at 765-766. Accordingly, the Court concludes that complete retroactive seniority should be treated like backpay and denied by a district court only for reasons which, applied generally, could not "frustrate" the congressional intent. Ante, at 771. Although the Court recognizes important differences between benefit-type seniority and competitive-type seniority, it expressly includes both in its conclusion that seniority relief presumptively should be available.
When a district court orders an award of backpay or retroactive seniority, it exercises equity powers expressly conferred upon it by Congress. The operative language of § 706 (g) states that upon a finding of an unlawful employment practice the district court may enjoin the practice and, further, may
The last phrase speaking to "other equitable relief" was added by a 1972 amendment, Pub. L. No. 92-261, 86 Stat. 103. As noted in Albemarle, supra, at 420-421, and again by the Court today, ante, at 764, a Section-by-Section Analysis accompanying the Conference Report on that amendment stated that it was Congress' intention in § 706 (g) "to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible." 118 Cong. Rec. 7168 (1972).
The expansive language of § 706 (g) and the 1972 legislative history support a general directive to district courts to grant "make whole" relief liberally and not refuse it arbitrarily. There is nothing in either of those sources, however, to suggest that rectifying economic losses from past wrongs requires the district courts to disregard normal equitable considerations. Indeed, such
In Albemarle Paper the Court read Title VII as creating a presumption in favor of backpay. Rather than limiting the power of district courts to do equity, the presumption insures that complete equity normally will be accomplished. Backpay forces the employer
Similarly, to the extent that the Court today finds a like presumption in favor of granting benefit-type seniority, it is recognizing that normally this relief also will be equitable. As the Court notes, ante, at 773 n. 33, this type of seniority, which determines pension rights, length of vacations, size of insurance coverage and unemployment
But the Court fails to recognize that a retroactive grant of competitive-type seniority invokes wholly different considerations. This is the type of seniority that determines an employee's preferential rights to various economic advantages at the expense of other employees. These normally include the order of layoff and recall of employees, job and trip assignments, and consideration for promotion.
It is true, of course, that the retroactive grant of competitive-type seniority does go a step further in "making whole" the discrimination victim, and therefore arguably furthers one of the objectives of Title VII. But apart from extending the make-whole concept to its outer limits, there is no similarity between this drastic relief and the granting of backpay and benefit-type seniority. First, a retroactive grant of competitive-type seniority usually does not directly affect the employer at all. It causes only a rearrangement of employees along the seniority ladder without any resulting increase in cost.
The second, and in my view controlling, distinction between these types of relief is the impact on other workers. As noted above, the granting of backpay and of benefit-type seniority furthers the prophylactic and make-whole objectives of the statute without penalizing other workers. But competitive seniority benefits, as the term implies, directly implicate the rights and expectations of perfectly innocent employees.
As noted above in Part II, Congress in § 706 (g) expressly referred to "appropriate" affirmative action and "other equitable relief as the court deems appropriate." And the 1972 Section-by-Section Analysis still recognized that the touchstone of any relief is equity. Congress could not have been more explicit in leaving the relief to the equitable discretion of the court, to be determined in light of all relevant facts and circumstances. Congress did underscore "backpay" by specific reference in § 706 (g), but no mention is made of the granting of other benefits upon ordering reinstatement or hiring. The entire question of retroactive seniority was thus deliberately left to the discretion of the district court, a discretion to be exercised in accordance with equitable principles.
The decision whether to grant competitive-type seniority relief therefore requires a district court to consider and weigh competing equities. In any proper exercise of the balancing process, a court must consider both the claims of the discrimination victims and the claims of incumbent employees who, if competitive seniority rights are awarded retroactively to others, will lose economic advantages earned through satisfactory and often long service.
The Court's concern to effectuate an absolutist conception of "make whole" should be tempered by a recognition that a retroactive grant of competitive-type seniority touches upon other congressional concerns expressed in Title VII. Two sections of the Act, although not speaking directly to the issue, indicate that this remedy, unlike backpay and benefit-type seniority, should not be granted automatically.
The first section, § 703 (h), has been discussed in the Court's opinion. As there noted, the "thrust" of that section is the validation of seniority plans in existence on the effective date of Title VII. The congressional debates leading to the introduction of § 703 (h) indicate a concern that Title VII not be construed as requiring immediate and total restitution to the victims of discrimination regardless of cost in terms of other workers' legitimate expectations. Section 703 (h) does not restrict the remedial powers of a district court once a discriminatory
Also relevant is § 703 (j), which prohibits any interpretation of Title VII that would require an employer to grant "preferential treatment" to any individual because his race is underrepresented in the employer's work force in comparison with the community or the available work force.
In expressing the foregoing views, I suggest neither that Congress intended to bar a retroactive grant of competitive-type seniority in all cases,
The Court virtually ignores the only previous judicial discussion directly in point. The Court of Appeals for the Sixth Circuit, recently faced with the issue of retroactive
The Sixth Circuit suggested that the District Court seek
In attempted justification of its disregard of the explicit equitable mandate of § 706 (g) the Court today relies almost exclusively on the practice of the National Labor Relations Board under § 10 (c) of the National Labor Relations Act, 29 U. S. C. § 160 (c).
I also suggest, with all respect, that the Court's appeal to Board practice wholly misconceives the lesson to be
The fallacy of the Court's reliance upon Board practice is apparent: the district courts under Title VII stand in the place of the Board under the NLRA. Congress entrusted to their discretion the appropriate remedies for violations of the Act, just as it previously had entrusted discretion to the Board. The Court today denies that
In summary, the decision today denying district courts the power to balance equities cannot be reconciled with the explicit mandate of § 706 (g) to determine "appropriate" relief through the exercise of "equitable powers." Accordingly, I would remand this case to the District Court with instructions to investigate and weigh competing equities before deciding upon the appropriateness of retroactive competitive-type seniority with respect to individual claimants.
Briefs of amici curiae were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Mark L. Evans, Brian K. Landsberg, David L. Rose, Julia P. Cooper, Joseph T. Eddins, and Beatrice Rosenberg for the United States et al.; and by Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, John A. Fillion, Stephen I. Schlossberg, Jordan Rossen, M. Jay Whitman, and Herbert L. Segal for Local 862, United Automobile Workers.
"Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged—or indeed, permitted—to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. (However, where waiting lists for employment or training are, prior to the effective date of the title, maintained on a discriminatory basis, the use of such lists after the title takes effect may be held an unlawful subterfuge to accomplish discrimination.)"
"First, it has been asserted that title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example, a collective bargaining contract provides that in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected in the least by title VII. This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. Title VII is directed at discrimination based on race, color, religion, sex, or national origin. It is perfectly clear that when a worker is laid off or denied a chance for promotion because under established seniority rules he is `low man on the totem pole' he is not being discriminated against because of his race. Of course, if the seniority rule itself is discriminatory, it would be unlawful under title VII. If a rule were to state that all Negroes must be laid off before any white man, such a rule could not serve as the basis for a discharge subsequent to the effective date of the title. I do not know how anyone could quarrel with such a result. But, in the ordinary case, assuming that seniority rights were built up over a period of time during which Negroes were not hired, these rights would not be set aside by the taking effect of title VII. Employers and labor organizations would simply be under a duty not to discriminate against Negroes because of their race. Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title." 110 Cong. Rec. 7207 (1964).
Senator Clark also introduced into the Congressional Record a set of answers to a series of questions propounded by Senator Dirksen. Two of these questions and answers are pertinent to the issue of seniority:
"Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for `last hired, first fired.' If the last hired are Negroes, is the employer discriminating if his contract requires they be first fired and the remaining employees are white?
"Answer. Seniority rights are in no way affected by the bill. If under a `last hired, first fired' agreement a Negro happens to be the `last hired,' he can still be `first fired' as long as it is done because of his status as `last hired' and not because of his race.
"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.
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3 (a) of this title."
The legislative history underlying the 1972 amendments completely answers the argument that Congress somehow intended seniority relief to be less available in pursuit of this goal. In explaining the need for the 1972 amendments, the Senate Report stated:
"Employment discrimination as viewed today is a . . . 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, perpetuation of the present effect of pre-act discriminatory practices through various institutional devices, and testing and validation requirements." S. Rep. No. 92-415, supra, at 5.
See also H. R. Rep. No. 92-238, supra, at 8. In the context of this express reference to seniority, the Reports of both Houses cite with approval decisions of the lower federal courts which granted forms of retroactive "rightful place" seniority relief. S. Rep. No. 92-415, supra, at 5 n. 1; H. R. Rep. No. 92-238, supra, at 8 n. 2. (The dissent, post, at 796-797, n. 18, would distinguish these lower federal court decisions as not involving instances of discriminatory hiring. Obviously, however, the concern of the entire thrust of the dissent—the impact of rightful-place seniority upon the expectations of other employees—is in no way a function of the specific type of illegal discriminatory practice upon which the judgment of liability is predicated.) Thereafter, in language that could hardly be more explicit, the analysis accompanying the Conference Report stated:
"In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII." Section-By-Section Analysis of H. R. 1746, accompanying The Equal Employment Opportunity Act of 1972—Conference Report, 118 Cong. Rec. 7166 (1972) (emphasis added).
powers than those granted the National Labor Relations Board. Section 10 (c) of the NLRA authorizes "such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter," 29 U. S. C. § 160 (c), whereas § 706 (g) as amended in 1972 authorizes "such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . , or any other equitable relief as the court deems appropriate." 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. IV) (emphasis added).
The dissent has cited no case, and our research discloses none, wherein the Board has ordered hiring relief and yet withheld the remedy of retroactive seniority status. Indeed, the Court of Appeals for the First Circuit has noted that a Board order requiring hiring relief "without prejudice to . . . seniority and other rights and privileges" is "language . . . in the standard form which has long been in use by the Board." NLRB v. Draper Corp., 159 F.2d 294, 296-297, and n. 1 (1947). The Board "routinely awards both back pay and retroactive seniority in hiring discrimination cases." Poplin, supra, n. 28, at 223. See also Edwards & Zaretsky, Preferential Remedies for Employment Discrimination, 74 Mich. L. Rev. 1, 45 n. 224 (1975) (a "common remedy"); Last Hired, First Fired Seniority, Layoffs and Title VII, supra, n. 11, at 377 ("traditionally and uniformly required"). This also is a "presumption" in favor of this form of seniority relief. If victims of racial discrimination are under Title VII to be treated differently and awarded less protection than victims of unfair labor practice discrimination under the NLRA, some persuasive justification for such disparate treatment should appear. That no justification exists doubtless explains the position of every union participant in the proceedings before the Court in the instant case arguing for the conclusion we have reached.
"Adequate protection of Negro rights under Title VII may necessitate, as in the instant case, some adjustment of the rights of white employees. The Court must be free to deal equitably with conflicting interests of white employees in order to shape remedies that will most effectively protect and redress the rights of the Negro victims of discrimination."
" `In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests. . . .' " Post, at 789-790.
"It is the reasonably certain prospect of a backpay award that `provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history.' " 422 U. S., at 417-418 (citations omitted).
Back pay furthers the "make whole" purpose of the statute by replacing some of the economic loss suffered as a result of the employer's wrongdoing. See id., at 418-420.
"QUESTION: How is Bowman injured by this action?
"MR. PATE [Counsel for Bowman]: By seniority? By the grant of this remedy?
"QUESTION: Either way.
"MR. PATE: It is not injured either way and the company, apart from the general interest of all of us in the importance of the question, has no specific tangible interest in it in this case as to whether seniority is granted to this group or not. That is correct." Tr. of Oral Arg. 42.
In a supplemental memorandum filed after oral argument, petitioners referred to this statement by Bowman's counsel and suggested that he apparently was referring to the competitive aspects of seniority, such as which employees were to get the best job assignments, since Bowman certainly would be economically disadvantaged by the benefit-type seniority, such as seniority-related increases in backpay. I agree that in the context Bowman's counsel spoke, he was referring to the company's lack of a tangible interest in whether or not competitive-type seniority was granted.
"(j) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
"In fashioning a remedy, . . . the courts should consciously assess the costs of relief to all the parties in the case, and then tailor the decree to minimize these costs while affording plaintiffs adequate relief. The best way to do this will no doubt vary from case to case depending on the facts: the number of plaintiffs, the number of [incumbents] affected and the alternatives available to them, the economic circumstances of the industry." Poplin, Fair Employment in a Depressed Economy: The Layoff Problem, 23 U. C. L. A. L. Rev. 177, 202 (1975) (emphasis in original); see id., at 224.
Another commentator has said that judges who fail to take account of equitable claims of incumbents are engaging in an "Alice in Wonderland" approach to the problem of Title VII remedies. See Rains, Title VII v. Seniority Based Layoffs: A Question of Who Goes First, 4 Hofstra L. Rev. 49, 53 (1975).
Moreover, I find no basis for the Court's statement that the Committee Reports indicated "rightful place" to be the objective of Title VII relief. In fact, in both instances cited by the Court the term was used in the context of a general comment that minorities were still "far from reaching their rightful place in society." S. Rep. No. 92-416, p. 6 (1971). There was no reference to the scope of relief under § 706 (g), or indeed even to Title VII remedies at all.
In this case, for example, factors that could be considered on remand and that could weigh in favor of full retroactive seniority, include Bowman's high employee turnover rate and the asserted fact that few victims of Bowman's discrimination have indicated a desire to be hired. Other factors, not fully developed in the record, also could require consideration in determining the balance of the equities. I would imply no opinion on the merits and would remand for full consideration in light of the views herein expressed.