More Seniority for the Victims

In a symbolically important decision last week, the Supreme Court struck a blow for workers denied jobs because of their race or sex. The court ruled 5 to 3 that if victims of proven hiring bias later manage to get work with the offending firm, they must be granted seniority, pension and other benefits retroactive to the time that they were originally thumbed down. Thus if a black had been rejected for a job because of bias in, say, 1971, and finally hired in 1973, he would now be entitled to five, instead of three, years of seniority and pension credit--and would stay on the job while a white hired in 1972 was bumped in the next wave of layoffs.

The court's action was hailed by civil rights groups as a move that strengthens Title 7 of the 1964 Civil Rights Act, which prohibits discrimination in employment because of race, religion or sex. Specifically, the ruling came in response to a petition on behalf of black applicants for long-haul truck-driver jobs with Bowman Transportation Inc. in Atlanta, which until 1970 openly followed a policy of hiring whites only. The majority opinion, written by Justice William J. Brennan, asserted that if the court merely awarded a job to an applicant who was initially discriminated against, he "will never obtain his rightful place in the hierarchy of seniority." In a dissenting opinion, Chief Justice Warren Burger questioned the wisdom of courts granting seniority to some workers at the expense of others. Wrote Burger: "I cannot join in judicial approval of 'robbing Peter to pay Paul.' "

Proof Required. Despite the court's generally moderate to conservative bent on other issues in recent years, its action last week reaffirms its longstanding belief that racial discrimination in the marketplace must be rooted out. The practical implications of its decision are less clear. The ruling applies only to applicants who can prove they were initially victims of discrimination.

One of the most promising ways for a complainant to win in court is to prove statistically that a firm's employment methods are biased. A company where blacks account for only 3% of the work force in a community where blacks make up 50% of the population would probably be vulnerable to a discrimination suit. Generally, however, most lawyers agree that proving racial or sexist bias in hiring is not easy. An employer can readily claim that the first time a black or woman applied for a job, a more qualified applicant who happened to be a white male was available.

Labor supported the court's decision. AFL-CIO Special Counsel Larry Gold said the ruling provided "full remedy to employees who have actually suffered from discrimination." Yet the unions also served notice that they will vigorously oppose any effort to undermine the basic principles of the seniority system. Petitions from civil rights groups are now before the Supreme Court seeking to abolish seniority systems when the rule of "last hired, first fired" results in layoffs of nonwhites and women. The Equal Employment Opportunity Commission is siding with the civil rights groups; the Justice Department favors the unions' position, in part because from the start seniority lists were exempted from the dictates of Title 7 as the price of labor support of the measure. Nobody is yet ready to guess what the court will decide.

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