Respondent was employed by United Air Lines as a flight attendant from November 1966 to February 1968. She was rehired in February 1972. Assuming, as she alleges, that her separation from employment in 1968 violated Title VII of the Civil Rights Act of 1964,
Respondent filed charges with the Equal Employment Opportunity Commission in February 1973, alleging that United discriminated and continues to discriminate against her because she is a female. After receiving a letter granting her the right to sue, she commenced this action in the United States District Court for the Northern District of Illinois. Because the District Court dismissed her complaint, the facts which she has alleged are taken as true. They may be simply stated.
During respondent's initial period of employment, United maintained a policy of refusing to allow its female flight attendants to be married.
In November 1968, United entered into a new collective-bargaining agreement which ended the pre-existing "no marriage" rule and provided for the reinstatement of certain flight attendants who had been terminated pursuant to that rule. Respondent was not covered by that agreement. On several occasions she unsuccessfully sought reinstatement; on February 16, 1972, she was hired as a new employee. Although her personnel file carried the same number as it did in 1968, for seniority purposes she has been treated as though she had no prior service with United.
A divided panel of the Court of Appeals initially affirmed; then, after our decision in Franks v. Bowman Transportation Co., 424 U.S. 747, the panel granted respondent's petition for
Respondent recognizes that it is now too late to obtain relief based on an unlawful employment practice which occurred in 1968. She contends, however, that United is guilty of a present, continuing violation of Title VII and therefore that her claim is timely.
It is true that some male employees with less total service than respondent have more seniority than she. But this disparity is not a consequence of their sex, or of her sex. For females hired between 1968 and 1972 also acquired the same preference over respondent as males hired during that period. Moreover, both male and female employees who had service prior to February 1968, who resigned or were terminated for a nondiscriminatory reason (or for an unchallenged discriminatory reason), and who were later re-employed, also were treated as new employees receiving no seniority credit for their prior service. Nothing alleged in the complaint indicates that United's seniority system treats existing female employees differently from existing male employees, or that the failure to
Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by § 706 (d). A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a non-discriminatory reason. In short, the system is neutral in its operation.
Our decision in Franks v. Bowman Transportation Co., supra, does not control this case. In Franks we held that retroactive seniority was an appropriate remedy to be awarded under § 706 (g) of Title VII, 42 U. S. C. § 2000e-5 (g) (1970
The difference between a remedy issue and a violation issue is highlighted by the analysis of § 703 (h) of Title VII in Franks.
That section expressly provides that it shall not be an unlawful employment practice to apply different terms of employment
The Court of Appeals read § 703 (h) as intended to bar an attack on a seniority system based on the consequences of discriminatory acts which occurred prior to the effective date of Title VII in 1965,
The judgment of the Court of Appeals is reversed.
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
But for her sex, respondent Carolyn Evans presently would enjoy all of the seniority rights that she seeks through this litigation. Petitioner United Air Lines has denied her those rights pursuant to a policy that perpetuates past discrimination by awarding the choicest jobs to those possessing a
For the reasons stated in the Court's opinion and in my separate opinion in Teamsters v. United States, ante, at 378, I think it indisputable that, absent § 703 (h), the seniority system at issue here would constitute an "unlawful employment practice" under Title VII, 42 U. S. C. § 2000e-2 (a) (2) (1970 ed., Supp. V). And for the reasons developed at length in my separate opinion in Teamsters, ante, at 381-394, I believe § 703 (h) does not immunize seniority systems that perpetuate post-Act discrimination.
The only remaining question is whether Ms. Evans' complaint is barred by the applicable statute of limitations, 42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V). Her cause of action accrued, if at all, at the time her seniority was recomputed after she was rehired. Although she apparently failed to file a charge with the EEOC within 180 days after her seniority was determined, Title VII recognizes that certain violations, once commenced, are continuing in nature. In these instances, discriminatees can file charges at any time up to 180 days after the violation ceases. (They can, however, receive backpay only for the two years preceding the filing of charges with the Equal Employment Opportunity Commission. 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. V).) In
Jack Greenberg, James M. Nabrit III, Patrick O. Patterson, and Barry Goldstein filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.
"A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred . . . ."
The 1972 amendments to Title VII added a new subsection (a) to § 706. Consequently, subsection (d) was redesignated as subsection (e). At the same time it was amended to enlarge the limitations period to 180 days. See 86 Stat. 105, 42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V).
"Plaintiff asserts that by defendant's denial of her seniority back to the starting date of her original employment in 1966, United is currently perpetuating the effect of past discrimination.
"Plaintiff, however, has not been suffering from any `continuing' violation. She is seeking to have this court merely reinstate her November, 1966 seniority date which was lost solely by reason of her February, 1968 resignation. The fact that that resignation was the result of an unlawful employment practice is irrelevant for purposes of these proceedings because plaintiff lost her opportunity to redress that grievance when she failed to file a charge within ninety days of February, 1968. United's subsequent employment of plaintiff in 1972 cannot operate to resuscitate such a time-barred claim." App. 18.
In any event we noted in Franks: "The underlying legal wrong affecting [the class] is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system." Id., at 758.
"Notwithstanding any other provision of this title, 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 . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ."