* [Certain footnotes have been omitted and the remain- der renumbered: Ed.] ' Line drivers, also known as over-the-road drivers, engage in long-distance hauling between company termi- nals. They compose a separate bargaining unit at the company. Other distinct bargaining units include service- men, who service trucks, unhook tractors and trailers, and perform similar tasks; and city operations, composed of deckmen, hostlers, and city drivers who pick up and deliver freight within the immediate area of a particular terminal. All of these employees were represented by the petitioner union. 2 Following the receipt of evidence, but before decision, the Government and the company consented to the entry of a Decree in Partial Resolution of Suit. The consent decree did not constitute an adjudication on the merits. The company agreed, however, to undertake a minority recruiting program; to accept applications from all Neg- roes and Spanish-surnamed Americans who inquired about employment, whether or not vacancies existed, and to keep such applications on file and notify applicants of job openings; to keep specific employment and recruiting records open to inspection by the Government and to submit quarterly reports to the District Court; and to adhere to certain uniform employment qualifications re-
specting hiring and promotion to line driver and other jobs. The decree further provided that future job vacancies at any company terminal would be filled first "[b]y those persons who may be found by the Court, if any, to be individual or class discriminatees suffering the present effects of past discrimination because of race or national origin prohibited by Title VII of the Civil Rights Act of 1964." Any remaining vacancies could be filled by "any other persons," but the company obligated itself to hire one Negro or Spanish-surnamed person for every white person hired at any terminal until the percentage of minority workers at that terminal equaled the percentage of minority group members in the population of the metropolitan area surrounding the terminal. Finally, the company agreed to pay $89,500 in full settlement of any backpay obligations. Of this sum, individual payments not exceeding $1,500 were to be paid to "alleged individual and class discriminatees" identified by the Government. The Decree in Partial Resolution of Suit narrowed the scope of the litigation, but the District Court still had to determine whether unlawful discrimination had occurred. If so, the court had to identify the actual discriminatees entitled to fill future job vacancies under the decree. The validity of the collective-bargaining contract's seniority system also remained for decision, as did the question whether any discriminatees should be awarded additional equitable relief such as retroactive seniority. I The Government did not seek relief for Negroes and Spanish-surnamed Americans hired at a particular terminal after the date on which that terminal first employed a minority group member as a line driver. 4 If an employee in this class had joined the company after July 2, 1965, then the date of his initial employment rather than the effective date of Title VII was to determine his competitive seniority. I This provision of the decree was qualified in one significant respect. Under the Southern Conference Area Over-the-Road Supplemental Agreement between the employer and the union, line drivers employed at termi- nals in certain Southern States work under a "modified" seniority system. Under the modified system an em- ployee's seniority is not confined strictly to his home terminal. If he is laid off at his home terminal he can move to another terminal covered by the Agreement and retain his seniority, either by filling a vacancy at the other terminal or by "bumping" a junior line driver out of his job if there is no vacancy. The modified system also requires that any new vacancy at a covered terminal be offered to laid-off line drivers at all other covered terminals before it is filled by any other person. The District Court's final decree, as amended slightly by the Court of Appeals, 517 F. 2d 299, 323, altered this system by requiring that any vacancy be offered to all members of all three subclasses before it may be filled by laid-off line drivers from other terminals.
I For example, if a class member began his tenure with the company on January 1, 1966, at which time he was qualified as a line driver and a line-driving vacancy existed, his competitive seniority upon becoming a line driver would date back to January 1, 1966. If he became qualified or if a vacancy opened up only at a later date, then that later date would be used. 7 "Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.... Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.... Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.... Proof of discriminatory motive, we have held, is not required under a disparate impact theory.... Either theory may, of course, be applied to a particular set of facts. I The "pattern or practice" language in § 707 (a) of Title VII, ... was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained: "[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice
if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohib- ited by the statute. "The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice...." 110 Cong. Rec. 14270 (1964). This interpretation of "pattern or practice" appears throughout the legislative history of § 707 (a), and is consistent with the understanding of the identical words as used in similar federal legislation.... 9 Although line-driver jobs pay more than other jobs, and the District Court found them to be "considered the most desirable of the driving jobs," it is by no means clear that all employees, even driver employees, would prefer to be line drivers.... 10 Petitioners argue that statistics, at least those compar- ing the racial composition of an employer's work force to the composition of the population at large, should never be given decisive weight in a Title VII case because to do so would conflict with § 703 (j) of the Act, 42 U. S. C. § 2000e-2 (j). That section provides: "Nothing contained in this subchapter shall be inter- preted to require any employer ... to grant preferential treatment to any individual or to any group because of the race ... 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 ... or national origin employed by any employer ... in comparison with the total number or percentage of persons of such race ... 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." The argument fails in this case because the statistical evidence was not offered or used to support an erroneous theory that Title VII requires an employer's work force to be racially balanced. Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purpose- ful discrimination; absent explanation, it is ordinarily,to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of
the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703 (j) makes clear that Title VII imposes no requirement that a work force mirror the general population.... Considerations such as small sample size may, of course, detract from the value of such evidence, ... and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant.... "Since the passage of the Civil Rights Act of 1964, the courts have frequently relied upon statistical evidence to prove a violation.... In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved." United States v. Ironworkers Local 86, 443 F. 2d, at 551.... " The company's narrower attacks upon the statistical evidence - that there was no precise delineation of the areas referred to in the general population statistics, that the Government did not demonstrate that minority popu- lations were located close to terminals or that transporta- tion was available, that the statistics failed to show what portion of the minority population was suited by age, health, or other qualifications to hold trucking jobs, etc. - are equally lacking in force. At best, these attacks go only to the accuracy of the comparison between the composi- tion of the company's work force at various terminals and the general population of the surrounding communities. They detract little from the Government's further showing that Negroes and Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver jobs. Such employees were willing to work, had access to the terminal, were healthy and of working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they became line drivers with far less frequency than whites.... In any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."... 12 The company's evidence, apart from the showing of recent changes in hiring and promotion policies, consisted mainly of general statements that it hired only the best qualified applicants. But "affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion." Alexander v. Louisiana, 405 U. S. 625, 632. The company also attempted to show that all of the witnesses who testified to specific instances of discrimina- tion either were not discriminated against or suffered no
injury. The Court of Appeals correctly ruled that the trial judge was not bound to accept this testimony and that it committed no error by relying instead on the other overpowering evidence in the case.... The Court of Appeals was also correct in the view that individual proof concerning each class member's specific injury was appro- priately left to proceedings to determine individual relief. In a suit brought by the Government under § 707 (a) of the Act the District Court's initial concern is in deciding whether the Government has proved that the defendant has engaged in a pattern or practice of discriminatory conduct... " Certain long-distance runs, for a variety of reasons, are more desirable than others. The best runs are chosen by the line drivers at the top of the "board" - a list of drivers arranged in order of their bargaining-unit seniority. " Both bargaining-unit seniority and company seniority rights are generally limited to service at one particular terminal, except as modified by the Southern Conference Area Over-the-Road Supplemental Agreement.... " An example would be a Negro who was qualified to be a line driver in 1958 but who, because of his race, was assigned instead a job as a city driver, and is allowed to become a line driver only in 1971. Because he loses his competitive seniority when he transfers jobs, he is forever junior to white line drivers hired between 1958 and 1970. The whites, rather than the Negro, will henceforth enjoy the preferable runs and the greater protection against layoff. Although the original discrimination occurred in 1958 - before the effective date of Title VII - the seniority system operates to carry the effects of the earlier discrimination into the present.
16 Concededly, the view that § 703 (h) does not immunize seniority systems that perpetuate the effects of prior discrimination has much support. It was apparently first adopted in Quarles v. Philip Marris, Inc., 279 F. Supp. 505 (ED. Va.). The court there held that "a departmental seniority system that has its xenesis in racial discrimination is not a bona fide seniority system."... The Quarles view has since enjoyed wholesale adoption in the Courts of Appeals.... Insofar as the result in Quarles and in the cases that followed it depended upon findings that the seniority systems were themselves "racially discriminatory" or had their "genesis in racial discrimination," ... the decisions can be viewed as resting upon the proposition that a seniority system that perpetuates the effects of pre-Act discrimination cannot be bona fide if an intent to discriminate entered into its very adoption. �� Article 38 of the National Master Freight Agreement between the company and the union in effect as of the date of the systemwide lawsuit provided: "The Employer and the Union agree not to discriminate against any individual with respect to his hiring, compensa- tion, terms or conditions of employment because of such individual's race, color, religion, sex, or national origin, nor will they limit, segregate or classify employees in any way to deprive any individual empoyee of employment opportunities because of his race, color, religion, sex, or national origin." Any discrimination by the company would apparently be a "grievable" breach of this provision of the contract. 11 The legality of the seniority system insofar as it perpetuates post-Act discrimination nonetheless remains at issue in this case, in light of the injunction entered against the union.... Our decision today in United Air Lines v. Evans, ..., is largely dispositive of this issue. Evans holds that the operation of a seniority system is not unlawful under Title VII even though it perpetuates post-Act discrimination that has not been the subject of a timely charge by the discriminatee. Here, of course, the Govern- ment has sued to remedy the post-Act discrimination directly, and there is no claim that any relief would be time barred. But this is simply an additional reason not to hold the seniority system unlawful, since such a holding would in no way enlarge the relief to be awarded.... Section 703 (h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act discrimination. " We also noted in McDonnell Docrglas: "There are societal as well as personal interests on both sides of this [employer-employee] equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship as- sured through fair and racially neutral employment and personnel decisions. In the implementation of such deci- sions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise."... ao
211 Asbestos Workers Local 53 v. Vogler, 407 F. 2d 1047 (CA5), provides an apt illustration. There a union had a policy of excluding persons not related to present mem- bers by blood or marriage. When in 1966 suit was brought to challenge this policy, all of the union's members were white, largely as a result of pre-Act, intentional racial discrimination. The court observed: "While the nepotism requirement is applicable to black and white alike and is not on its face discriminatory, in a completely white union the present effect of its continued application is to forever deny to Negroes and Mexican-Americans any real oppor- tunity for membership."...
21 For the same reason, we reject the contention that the proviso in § 703 (h), which bars differences in treatment resulting from "an intention to discriminate," applies to any application of a seniority system that may perpetuate past discrimination. In this regard the language of the Justice Department memorandum introduced at the legis- lative hearings, ... is especially pertinent: "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.... Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title."...
'z That Title VII did not proscribe the denial of fictional seniority to pre-Act discriminatees who got no job was recognized even in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va.), and its progeny. Quarles stressed the fact that the references in the legislative history were to employment seniority rather than departmental seniori- ty.... In Paperworkers v. United States, 416 F. 2d 980 (CA5), another leading case in this area, the court observed: "No doubt, Congress, to prevent 'reverse discrimination' meant to protect certain seniority rights that could not have existed but for previous racial discrimination. For example a Negro who had been rejected by an employer on racial grounds before passage of the Act could not, after being hired, claim to outrank whites who had been hired before him but after his original rejection, even though the Negro might have had senior status but for the past discrimination."...
2.1 The McDonnell Douglas case involved an individual complainant seeking to prove one instance of unlawful discrimination. An employer's isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based. Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged dis- criminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explana- tion, to create an inference that the decision was a discriminatory one. 24 The holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof.... These factors were present in Franks. Although the prima facie case did not conclusively demonstrate that all of the employer's deci- sions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant's qualifications, the company's records were the most rele- vant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decisionmaking process. " The employer's defense must, of course, be designed to meet the prime facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence an employer may use. The point is
that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases the employer's burden is to provide a nondis- criminatory explanation for the apparently discriminatory result... 21 The federal courts have freely exercised their broad equitable discretion to devise prospective relief designed to assure that employers found to be in violation of § 707 (a) eliminate their discriminatory practices and the effects therefrom.... In this case prospective relief was incorpo- rated in the parties' consent decree.... 27 Any nondiscriminatory justification offered by the company will be subject to further evidence by the Government that the purported reason for an applicant's rejection was in fact a pretext for unlawful discrimina- tion.... 11
=" The limitation to incumbent employees is also said to serve the same function that actual job applications served in Franks: providing a means of distinguishing members of the excluded minority group from minority members of the public at large. While it is true that incumbency in this case and actual applications in Franks both serve to narrow what might otherwise be an impossible task, the statuses of nonincumbent applicant and nonapplicant incumbent differ substantially. The refused applicants in Franks had been denied an opportunity they clearly sought, and the only issue to be resolved was whether the denial was pursuant to a proved discriminatory practice. Resolution of the nonapplicant's claim, however, requires two distinct determinations: that he would have applied but for discrimination and that he would have been discriminatorily rejected had he applied. The mere fact of incumbency does not resolve the first issue, although it may tend to support a nonapplicant's claim to the extent that it shows he was willing and competent to work as a driver, that he was familiar with the tasks of line drivers, etc. An incumbent's claim that he would have applied for a line-driver job would certainly be more superficially plausible than a similar claim by a member of the general public who may never have worked in the trucking industry or heard of the company prior to suit. z° Inasmuch as the purpose of the nonapplicant's burden of proof will be to establish that his status is similar to that of the applicant, he must bear the burden of coming forward with the basic information about his qualifications that he would have presented in an application. As in Franks, and in accord with Part 111-A, supra, the burden then will be on the employer to show that the nonappli- cant was nevertheless not a victim of discrimination. For example, the employer might show that there were other, more qualified persons who would have been chosen for a particular vacancy, or that the nonapplicant's stated qualifications were insufficient... JQ Of the employees for whom the Government sought transfer to line-driving jobs, nearly one-third held city- driver positions. 3� The District Court's final order required that the company notify each minority employee of the relief he was entitled to claim. The employee was then required to indicate, within 60 days, his willingness to accept the relief. Under the decision of the Court of Appeals, the relief would be qualification-date seniority.
" While the most convincing proof would be some overt act such as a pre-Act application for a line-driver job, the District Court may find evidence of an employee's infor- mal inquiry, expression of interest, or even unexpressed desire credible and convincing. The question is a factual one for determination by the trial judge.
3J Other factors, such as the number of victims, the number of nonvictim employees affected and the alterna- tives available to them, and the economic circumstances of the industry may also be relevant in the exercise of the District Court's discretion. See Franks, supra, at 796 n. 17 (Powell, J., concurring in part and dissenting in part).