UNITED AIR LINES, INC. v. EVANS

Print this transcript Transcript: 

Argument of Stuart Bernstein

Chief Justice Warren E. Burger: We will hear arguments next in 76-333, United Air Lines against Evans.

Are you Mr. Bernstein?

Mr. Stuart Bernstein: Yes Sir.

Chief Justice Warren E. Burger: I think Mr. Bernstein you may proceed.

Mr. Stuart Bernstein: Alright Sir.

Mr. Chief Justice and May it please the court.

This case arises under Title VII of the Civil Rights Act of 1965.

It’s primarily concern is the regard if any to be paid to a prior time-barred discriminatory Act and the application of a current, neutral, nondiscriminatory seniority system.

United Air Lines like other domestic air carriers in the United States up until November of 1968 maintained a policy which required that its Stewardesses, now called flight attendants, be and remain unmarried and that in November 1968, they entered an agreement with the Air Line Pilots Association, the collective bargaining agent for the flight attendants abrogating this rule, offering reinstatements to those who have been terminated and who have protested through company or federal or state agencies to effect with the discharge.

Reinstatement was offered without back pay.

That policy was ultimately in case of Sprogis v. United Air Lines in the Seventh Circuit to be discrimination on the basis of sex in violation of Title VII.

In February 1968, Miss Evans the respondent here resigned upon marriage.

She claims that it was involuntary that she was forced to resign and since this arises on a motion to dismiss that is admitted for the purposes of this proceeding.

At the time of her discharge, Title VII provided that a charge claiming a violation of the Act had to be filed with Equal Employment Opportunity Commission within 90 days of the event.

It's conceded that Miss Evans did not file such a charge within that time limit and in fact did nothing with respect to that for a period of four years.

In February of 1972, she applied to United Air Lines for pre-employment as a Stewardess and in fact was hired as a new employee at that time.

She was sent to training school along with other new employees, finished the training a month later and in March 1972 was assigned to the line to assume the duties of a flight attendant.

At that time as your court may know it had already been decided that the limitation of their position to members of the female sex only was a violation and the job had been opened up to males as well as females.

She worked as a Stewardess as a flight attendant from March 1972 upon completion of training till February 1973 at which time she filed a charge with the Equal Employment Opportunities Commission in which she alleged that it a was violation of the act for United to have refused to credit her with seniority for her earlier employment which ended in the 1968, when they designed her seniority on rehire in 1972.

Unknown Speaker: Mr. Bernstein, has United ever given credit to another situations for prior service?

Mr. Stuart Bernstein: The only it has done so Your Honor as when charges have been filed within the time limits that is they have done a number of instances where the stewardesses have complained within appropriate time limits about their termination have been reinstated with full seniority, that is different situation.

Unknown Speaker: Not given all the time.

Mr. Stuart Bernstein: Pardon Sir.

Unknown Speaker: And say those are only are the only other...

Mr. Stuart Bernstein: That’s correct.

There is nothing in this record to the contrary.

Unknown Speaker: And the collective bargaining agreement specifies nothing.

Mr. Stuart Bernstein: That’s correct.

There is a period upon after termination which seniority is lost, discharge under these circumstances it's lost immediately.

She received in due course the permission, the right to sue letter from the EEOC and suit was filed in September 1974.

The United answered and I will allude to this later, in its answer, it admitted that the termination had been by resignation, but denied the allegation that had been involuntary.

It also added as affirmative defense at the time issue and then raised that by motion to dismiss.

The district court held that there was no continuing violation, that the act of the termination assuming to be discriminatory was completed long ago, the 90-day limit had run on that and that it was not continuing, consistent with decisions of this court and other courts, I don’t think that is an issue here as to whether or not a discharge is impleaded that not continuing and held that what she was really trying to do in this case was to reassert a claim which had been time bargaining mainly the 1968 termination of employment.

Matter was appealed to the Court of Appeals and the interim the case Collins v. United Air lines have been decided in the Ninth Circuit where the Ninth Circuit held that a similarly situated former United Stewardess who applied for reinstatements after four years of unemployment, didn’t stay the claim against the company because there was continuing violation, held there was no obligation to rehire.

When the Seventh Circuit first was faced with Evans case on appeal, it determined consistent with the District Court that there was no cause of action, no continuing violation, action was based on the Time Barred Act and saw no difference between the situation before it because United had voluntarily rehired Ms. Evans than the situation in the Ninth Circuit were United had refused to reinstatement Mrs. Collins and so the result should be same in the event and dismissed and affirmed the dismissal by the District Court.

It noted if the rule should be otherwise, employer such as United Airlines would have the temptation not to rehire employees who otherwise would be rehirable because you get into this upon doing so and the situation should not be the same.

A petition for rehearing was filed and pending the determination on the ruling on the petition this Court issued its decision of Franks v. Bowman Transportation Company.

The Court of Appeals there upon granted the petition and on rehearing reversed itself without reference at all Collins for the problem that Time Barred first event and says that under Franks v. Bowman, the relief requested could be granted.

Obliviously, Franks v. Bowman has some significance to our position here and I would like to discuss that briefly.

Franks did not involve as this case did, the question of a time barred claim.

In Franks, the issue was whether the court having informed that there was a Discriminatory Act within the time limits by the way, that a permissible form of relief under Section 706(g) of the Civil Rights Act was to accord retroactive seniority and in that instance it would have been seniority from the date that the black Africans who have been discriminatorily refused employment as over the road drivers with Bowman Transport, when they were hired, they could get credit, seniority credit back to the time of first application.

In that case, the charge had been filed in February of 1970.

The record in this case, the opinions themselves examine your opinion and the opinion in the Court of Appeals was clear that there were 200, it was a class action incidentally, there were 206 Africans concerned in that case, all who had applied for employment after January 1, 1970.

They are simply could not have been a time limit question in that case; none was ever raised in this Court.

What the Court held was -- that the fact that the 703(h) of the Civil Rights Act said that a bona fide seniority system itself could not be the basis of finding of a violation, did not preclude the granting as a element of remedy under 706(g) the remedial section to the Act retroactive seniority, but that would not stand in the way.

So, the Franks v. Bowman presupposed the proof of a Discriminatory Act within the time limit and concerned itself only with the application of remedy.

The fact is there was a time limit problem in Franks, but that had been disposed off in the Court of Appeals and never reached this Court.

Well, the Courts in Evans too, the Supreme Court interpreted that to me that the fact that a remedy was available, a retroactive seniority under 706(g) made United’s refusal or failure to accord seniority for the prior employment an offence under 703(h).

Now, United has never raised 703(h) as a defense.

Its defense simply was you can’t prove a claim within the time limits provided by the Civil Rights Act.

We never get to the question of the remedy.

You don’t talk about remedy until you have proved the violation and none have been proved.

Well, the Court had made up the argument for us.

It said the United’s argument appears to rest substantial on 703(h) and the Supreme Court disposed of that in Franks.

I submit to you Your Honor that the holding of the Court of appeals on Franks and Evans too is misleading of Franks, nothing to do with the case whatsoever.

In fact, the NAACP which has filed an amicus curiae brief in support of respondent concedes that.

That Franks was not a case involving time limits, it really does not reach the issue.

We, therefore, submit that the Court of Appeals was simply in error.

We have a simple situation here.

When act occurred, action was not taken within the prescribed time.

That act is gone.

Though it was a pre-act violation, a post act violation on which such statute is run there is no different posture than a pre-act violation.

This is our basic position.

Now, there is one other line of cases that have been cited by counsel for respondents to support the position.

These are the so called departmental seniority cases typified by United Paper Workers in the Fifth Circuit Court and the District Court of Virginia which are the leading cases in this direction.

It may well be that those cases will stands from review.

After your honors have finish consideration of the TIME case and East Texas Motor Freight case which are now pending before you, where some challenges made through the departmental seniority cases.

But many of them, the departmental seniority cases have no application here because the theory there is that a freshly neutral seniority system is in fact discriminatory because it requires that seniority be exercised on the basis of seniority credits which employees were prohibited from gaining because of prior unlawful practices.

So, although it appears at that the black employees in the paper makers for example could bid into lines of progression formally held by white employees and whites could equally did it for black positions, yet no white would ever been in black position because they were the lower rated positions, lower paying positions and since you have to bid it on the basis of departmental seniority in order to move up into a higher paying job you have to sacrifice your just in seniority.

I think that’s an entirely different question.

The point there is that the courts have found that that seniority system is at that time a discriminatory act.

The system is discriminatory.

Now, they say, there are some questions as to whether or not their position is viable, but however, this court may resolve the issues before in the over the road cases that you have under consideration doesn’t reach the point here.

Now, one way to bring this to a focus to show that inevitably respondent cannot prevail unless reliance is placed on the time-barred 1968 act, its look the way this matter arose, certainly at the state of the pleadings.

As I said, there was an allegation in the pleadings that the termination was involuntary and was forced by United Airlines.

We have admitted only that there was a resignation.

It would not be an illegal act, not be of violation to act of any time and had an employee voluntarily resigned upon being married, will be no longer have the rule and many stewardesses and flight attendants still do resign upon getting married.

The percentage is not the same but it's certainly not rare, they are numbered in the hundreds.

There are still circumstances in which marriage, a woman who withdraws herself from the job market upon becoming married.

So, the mere fact that resignation wouldn’t be sufficient.

If this were to be sent back to the District Court for trial, since it stands on answer denying it, it would be incumbent upon the respondents to prove, in fact, that the resignation had been involuntarily.

In other words, there in fact had been a violation of the act but that would require proof of a 1968 time-barred claim in order to sustain the position here.

Now, this brings us around to Machinists v. National Labor Relations Board, the decision arising under the National Labor Relations Act and there’s court seven Franks case itself, analogy to that statute are extremely helpful in applying the Title VII of the Civil Rights Act.

Unknown Speaker: Before you go on with that let me see if I have got this last point clear.

You say there was no burden on the respondent here to demonstrate that the 1968 termination was involuntary by showing for example that upon her marriage, her supervisor came and said, of course you know, you got to resign and that could be the way you would show the involuntary in this way.

Mr. Stuart Bernstein: Right Sir.

Unknown Speaker: Where is the burden, did you know that?

Mr. Stuart Bernstein: The situation is that since we have to raise this as a motion of dismiss.

We have admitted all well pleaded.

She has pleaded that it was involuntary enforced so we have admitted that for this purpose.

Our position is it's irrelevant.

Whether it was an illegal discriminatory act or not in 1968, our point is whatever it was at that’s time-barred.

You can’t enter into that.

If this matter should be tried since we have denied it in our answer in motion to dismiss, it's not sufficient try to win or if we lose on that.

She has to go back and prove her case and then she would be put on her proof as to the nature of her act whether it was voluntary or involuntary.

Unknown Speaker: Then the burden is clearly on her.

Mr. Stuart Bernstein: That’s correct Sir, but the point is not the burden as much as is that, that must be proved at that point and she must rely then on a 1968 Time Barred Act in order to assert the point that an application of a seniority system in 1972, she should have been given credit for that service which ended in 1968.

If I, may I would like to allude to the Machinists v National Labor Relations Board case.

That was in 1960 case and arose under 10(b) of the National Labor Relations Act which is the analog of Section 703(d) of the Title VII of the Civil Rights Act and in that it provides that charges be filed with the National Labor Relations Board within six months of the alleged unfair unlawful labor practice and under Title VII, it's the unlawful employment practice, again now a six month of period.

There the issue was what effect will be given to a pre 10(b), a pre-six month incident to cast light on an event occurring within the 10(b) period.

In that case, an illegal Union Security clause has been entered into through collective bargaining agreement.

It was illegal because at that time the union did not represent a majority of the employees and in order to entered into it Union Security Clause, the Union must be the majority representative.

Contract was entered into and of course, since there was a Union Security Clause, employees had to joined the union, so that the very soon the union had a majority by operation of the clause.

More than six months after, the execution of the contract, but within the period of it's enforcement, a charge was brought against the employer and Union alleging that this was an unlawful labor practice under the National Labor Relations Act.

The matter came before this court and it was held that since the contract on it's face was completely lawful, legal agreement and its illegality if any could only be established by proof of what had happened at the execution of the contract more than six months earlier, that such evidence was not admissible to prove the violation within the limitations period and the National Relations Board decision holding that in fact such evidence could be adduced was reversed.

Now, we submit your honor, we have the same situation here.

There is simply no way that a respondent can make out it's assertion here that United failed to credit her with seniority, earned up to 1968, in it's present application of it's neutral, nondiscriminatory time in the position seniority system which the company now has, unless that is proved.

Because this respondent in 1972 was no different position than a new employee who had never worked for the company or an employee who had quit clearly on the voluntarily basis four years ago or an employee who had fired for cause or theft and then been rehired four years later.

In none of those instances, would it be suggested that employee was entitled or any of these employees were entitled any prior seniority and the only distinction you can make among those groups and the respondent here is that in fact that she worked for United up to 1968 and was terminated under this no marriage policy, a claim which is time barred.

Unknown Speaker: Well, if the analogy use in Machinists case, the limitation that case placed on the notion of a continuing violation when you have the statute limitations?

Mr. Stuart Bernstein: Well sir, I think it goes to both points.

The case that the court did discuss the concept of a continuing violation in that case and it said that if in fact we were to follow the theory of the Board, the Labor Board in that instance the violation would never end.

As here, respondent could have waited 20-30 years and come in and said well back in 1972, he gave me the seniority I was entitled to, and therefore, it's a continuing violation.

It went to that point as well as to the point as when did the initial event occurred which started the statute to run and they held that was the execution of the contract.

Since, that time there was no present defense.

Unknown Speaker: What if the seniority, if your opponents are right about the seniority violation, then their argument is that the violation is a continuing one and it's occurring every day.

Mr. Stuart Bernstein: The argument, the point is however your honor is about the seniority violation is that unless you rely on a time barred claim.

The 1968 claim, there is nothing offensive about the present seniority system.

In fact, the system is not the attacked.

It is the failure, it's put in terms of practice, it said that we follow a practice of not giving her credit for her prior employment and the point is that the prior employment ended four years earlier, long beyond the termination of the statutory period.

Your honor, I am responding to your question I….

Unknown Speaker: Well I am not sure how clear my question was you say you derive two principles from the Machinists, it is both of which you think held up right.

Mr. Stuart Bernstein: The concept of the continuing violation I think was laid to rest both in IUE v. Robbins & Myers earlier this term and in Johnson v. Railway Express where time limit questions were raised, one under 1981 and one under Title VII and the Court made clear that the Act of the discharge is the completed act and the time limits begins to run from that date.

There is no continuing concept in there and I submit that the Courts of Appeal are uniform on that the Eight Circuit and Fourth Circuit, even the Seventh Circuit agrees with that and Evans won, which was two to one decision, even in dissent Judge Cumming said that we agree that there was no obligation to rehire, there is no continuing violation.

Unless respondent can show that somehow he can assert the possession that he can sustain his position without reliance on a Time Barred Act.

That seems to me that it’d be rather a clear case, I apologize for saying that, the clear cases don’t get up here, but it seems to me that its crystal clear, if the time limits mean anything in Title VII that it must foreclose the claim here.

I like to reserve the remainder of my time.

Chief Justice Warren E. Burger: Mr. Levin.

Argument of Alan M. Levin

Mr. Alan M. Levin: Mr. Chief Justice and May it please the court.

My name is Allen M. Levin.

I am with the Chicago law firm of Dorfman, DeKoven, Cohen & Laner and I represent the respondent Carolyn Evans.

I would like to note in passing before proceeding to argument that in the first place we have not yet had a trial in this case.

There has been no proof taken on whether or not United applies continuous time and service across the Board.

I personally had met an individual flight attendant with the United who had not discriminated against by the No Marriage rule, who did quit, who was rehired and was given past service credit.

Now, I am not accusing Mr. Bernstein of lying or anything like that I am only suggesting….

Unknown Speaker: Are you testifying here today?

Mr. Alan M. Levin: No, Your Honor.

Unknown Speaker: This is in the record, let’s not hear about it.

Mr. Alan M. Levin: Oh excuse me your honor.

By way of argument, Mrs. Evans’ case can be summarized in a nutshell as consisting of two points.

First that her charge was timely because it was filed during the pendency of the employment practice which she is challenging, namely United’s practice with respect to her seniority, whereby they deny her credit for any time worked before 1972.

Secondly, that United’s practice with respect to her seniority is illegal because it gives present vitality to United’s past, open, admitted, across the Board pattern and practice discrimination of which Carolyn Evans is an identifiable victim.

The real issue in this case is not one of time limits.

At every stage of this case we have conceded and we concede again that if Carolyn Evans was solely and simply attacking the 1968 termination.

Her only affective avenue of relief would be by way of success in McDonald litigation as class member in McDonald.

She is not seeking the back pay or other monetary relief for the period 1968 to 1972.

That’s the penalty she suffered for not filing her charge within 90 days of the 1968 termination.

Justice Byron R. White: Can you concede to back pay, if there were a back pay, payment would be bar?

Mr. Alan M. Levin: As for 1968 to 1972 yes Mr. Justice White.

Justice Byron R. White: How about the reinstatement?

Mr. Alan M. Levin: You are referring to Collins case, I assume Mr. Justice White.

Justice Byron R. White: Well I am not referring to anything, I am just asking you question?

Mr. Alan M. Levin: Reinstatement of employment or of seniority Your Honor?

Justice Byron R. White: Well assume that she has not been hired and that she asked for reinstatement.

Mr. Alan M. Levin: Oh that’s a different case I believe that if….

Justice Byron R. White: Is that any different than a back pay claim?

Mr. Alan M. Levin: It could be different potentially.

If it could be shown that United’s refusal to rehire would have been based or was in fact based upon prior discrimination, in other words, United said because we discriminated against you in the past, we are not going to hire….

Justice Byron R. White: Well, they just say we are full now; we haven’t done any places for people?

Mr. Alan M. Levin: Well I think they would different case then and I think that…

Justice Byron R. White: It’s like your back pay claim then?

Mr. Alan M. Levin: Yes.

Unknown Speaker: Mr. Levin you mentioned the refusal, rehire, as I understand that the no marriage rule was terminated in November 1968.

Is there anything in the record to indicate why your client was not employed after that period and before 1972, was it refusal rehire situation?

Mr. Alan M. Levin: As the matter of fact for four years until she was rehired, she made several efforts to be rehired and was turned down; she was not represented by the counsel.

Unknown Speaker: Are those alleged in the complaint?

Mr. Alan M. Levin: Yes, they are your honor.

Unknown Speaker: I just missed them.

Justice William H. Rehnquist: Mr. Levin, well, what if your client claimed here instead of being under the employment section of the Civil Rights Act was under the open housing section and she is asserted that she had been discriminatory denied housing in 1968 and then she came back in 1978 and asserted she had been discriminatory denied the same housing, the same house she wanted to buy in 1968, she again tried to buy in 1978 and do you think she could recessitate any part of her 1968 claim by making a claim of discrimination in respect of the same house 10 years later?

Mr. Alan M. Levin: Mr. Justice Rehnquist, I believe the way you have posted the facts, it would be different from our case and I do not believe the client could be (Inaudible) unless the continuing pattern could be shown.

In the facts as you stated them I do not see a continuing pattern.

We are dealing here with seniority which is a special kind of an animal, a special kind of an employment animal.

It is based upon the past.

It necessarily looks to the past.

It operates in the present.

It looks to the future as well and operates in the future.

We are talking about an on the job policy.

We are not necessarily stating that an employer has an obligation to rehire a past discriminitree, but we are saying that an employer once he hires somebody, has to hire has to treat that person with fairness and not get present vitality to the past discrimination.

I think the best analogy I can give would be under the Wage and Hour Law.

If an employer says to a perspective applicant, I am not going to hire you because I can only afford to pay you $19 an hour and the employee says well that is 40 cents below the minimum wage and runs down to his nearest regional office of the US Department of Labor and files a claim, he is going to be tell the employment has no obligation to hire him.

But once the employer hires him, suppose the employee agrees to work for $19, the employer says fine, he hires him and next day the employee can go down to the US Department of Labor to file a claim and the employer will be told that there is no such waiver in that case, that once you hired the man, you have the obligation to pay him legal minimum wage.

We have an analogous claim here.

Once United rehired Carolyn Evans, it could not treat her like a stranger because she was in fact no stranger.

Justice William H. Rehnquist: If your rule were adopted by the court, it would certainly put some pressure on United not to ever rehire anybody who might have had a claim against them in the past with, would it not?

Mr. Alan M. Levin: Mr. Justice Rehnquist, I suspect that it is the very rare employer indeed who rehires an employ who was previously been discharged for discriminatory reasons, unless he is ordered by court to do so.

Carolyn Evans was not hired out of goodness of United’s heart.

United got an experienced, mature employee who is better than the average crop of employees coming around.

Presumably that is the reason that she was rehired.

Secondly it is possible to posit a case, unlike the Collins case where the employee can demonstrate that the refusal to rehire was in fact based upon the fact that employee was a past discriminatory, that is not the Collins case that would be closer to our case.

Even today as Carolyn Evans flies for United Airlines, she suffers a current loss of benefits, a loss of wages, a loss in vacations; she suffers a loss in the area of flight assignment selections, right to retention in the case of layoff because of United’s current practice with respect to her seniority.

Justice Harry A. Blackmun: Is there any of time-limit to bring in her suite to such as this on your theory, if she waited for 20 or 30 years then...

Mr. Alan M. Levin: Mr. Justice Blackmun, if she were to file today, it would be our contention that she still the time-limit, but section 706(g) of the Act places a two-year limitation on back pay recovery.

So that in the terms of financial recovery whenever she were to file the claim, she would be limited to two years of back pay.

Furthermore, if unlike this case, where United has not once claimed that it has been prejudiced by the times delay, United argues about claims in the future, not about this case, but if in the future an employee can demonstrate actual prejudice in defense on the merits then conceivably the court can apply the doctrine of latches.

Justice William H. Rehnquist: But you don’t yet to a doctrine of latches or you have congressionally specified statutes of limitations though that is congress is saying that the claim shall not be filed after such a day.

Mr. Alan M. Levin: Well Mr. Justice Rehnquist, I believe in this case that congress has not barred this claim with the time limitations at 706(e).

Justice William H. Rehnquist: But then should there be a doctrine of latches that all, if congress, if it not time-barred by the congressional Acts.

Mr. Alan M. Levin: Well, I believe this would be similar to the veteran’s reemployment cases where while there was a one-year statutory protection period, the courts have traditionally applied the doctrine of latches to bar claims which are deemed to be stale of evidentiary reasons and that essentially is the argument which is being made by the company in this case.

Carolyn Evans also suffers from a present sexual disparity on the job.

She is perpetually subordinated to where she would have been, had she been a married male flight attendant.

Unknown Speaker: Well it has to the extent of 18 months.

Mr. Alan M. Levin: To the extent of 18 months also to the extent of four years 1968 to 1972.

I realize that on equitable grounds, the claim for the 18 months actually worked is more compelling than the four years that were not worked.

On the other hand it is no less true that the present denial with seniority does in fact give vitality to the past discrimination, today it is for the denial on the four years as well.

Justice William H. Rehnquist: Mr. Levin, I can’t let that last comment go without observing that if she had been a married male attendants, she wouldn’t have this job in 1968, would she because they excluded all males from the position?

Mr. Alan M. Levin: I am not aware of that Your Honor.

Justice William H. Rehnquist: Read this Sprogis case.

Mr. Alan M. Levin: Carolyn Evans complains of a current sexual disparity and a recurrent loss.

Her charge was timely when judged by these standards in the legislative history when congress considered amendments to the Title VII in 1972.

Specifically congress stated that it was accepting the judicially created doctrine that certain violations are deemed to be continuing in nature that a charge is timely when filed during the pendency there off or at any time up to 180 days after the last recurrence of the practice.

In addition, you have to couple that with section 706(g) Act which limits back pay relief to two years, which would have significance only in a continuing violation case and to refer again to the Veteran’s reemployment cases this court in 1949 in the Oakley case and the Hans case at 338 U.S. 278, two 1949 decisions recognized on the escalator theory of seniority that a veteran could raise a claim for denial of seniority credit from his original date of hire even after the one year statutory protection period had run.

There is no time limit issue in this case, her charge was timely.

United has never disputed the fact that the challenge seniority practice is a current one.

It's never disputed that the seniority practice itself is a continuing one.

It's never really disputed the preposition that if the seniority practice is illegal then the charge was timely.

United had never alleged prejudice against them on their ability to defend on the merits.

In saying that the only violation that occurred in this case occurred in 1968, United is really saying that the statute of limitation should be held to or run before the violation was even committed.

The violation challenged in this case didn’t even begin to occur until after Carolyn Evans was rehired in 1972.

Chief Justice Warren E. Burger: Well, I thought you said at the outset that it began when she was involuntarily terminated in 1968.

Mr. Alan M. Levin: Mr. Chief Justice, I am referring to this specific current practice which she is challenging, the practice with respect to her seniority.

Now, it is our contention that, that practice is illegal because it gives present vitality to perpetuate the effects of past discrimination against her in 1968.

Now, United Air Lines is openly relying on that past act of discrimination, an open admitted policy across the board, pattern or practice adjudicated to be illegal in the Sprogis case.

As creating and break in service to deprive Carolyn Evans of benefits and seniority today and then they tell us that we are time barred.

We submit that it is a basic established accepted principle of the Title VII law, It has been for at least last nine years, from this court for six years that United can not be permitted to perpetuate the effects past discrimination through it's current practice.

The principle we rely on is as follows.

That where a present employment practice characteristically is a seniority practice which is so, characteristically tied to the past, operates in the present, looks to the future where such a practice to use United’s words is inextricably tied to and painted by past discrimination as they say was true in the Papermaker’s case and where that present practice extends and perpetuates the past discrimination into the present resulting in loss and disadvantage to the identifiable victim of that past discrimination in the present then we say that the present practice is illegal.

EOC said this several years ago.

Eight Courts of Appeal have agreed with the principle in the seniority area.

Congress recognized the principles when it sighted the Papermaker’s case with approval in considering amendments to Title VII in 1972.

This Court recognized the principle that present facially fair employment practices that perpetuate the effects of past discrimination are illegal in the Griggs case, in 1971.

We submit that, that principle fits the Evans case like a glove.

She is the identifiable victim of past open adjudicated discrimination.

She suffers today due to a current superficially neutral but no less damaging policy which gives present vitality to that past discrimination.

Every time Carolyn Evan bids on a flight assignment, every time she takes a vacation, every time she gets her pay check, every time she has to stand at an airport waiting to see if she is going to fly on standby...

Justice John Paul Stevens: Mr. Levin could I interrupt because I want to interrupt you, supposing instead of your particular client you had a person who had been married prior to 1968 and applied for a job with United in 1967, he was turned down because she was married and then she is employed at this time.

So that she didn’t worked for the 1967 to 1968 because of the no marriage rule, would she have the same claim that your client does, the seniority for that period, denial of employment on account of her marriage?

Mr. Alan M. Levin: She could under that theory.

It isn’t necessary for the Court to hold that to be the case Mr. Justice Stevens, she could.

Well, in this case our contention includes the fact that the Carolyn Evan has actually worked for United Air Lines from 1966 to 1968 and that… and that she earned service as the past employee.

Justice John Paul Stevens: Your Honor, if that she complains obvious of the fact that she was treated unlawfully, then you are not really seeking seniority for the period subsequent to the illegal Act; you are seeking seniority for the time when they treated her perfectly lawfully.

In other words, she was employed up till 1968.

Mr. Alan M. Levin: Yes she was Your Honor.

Justice John Paul Stevens: That she is not getting credit for that seniority because of an illegal act in 1968.

Mr. Alan M. Levin: That is true Your Honor.

Justice John Paul Stevens: Now, why wouldn’t another comparably situated qualified stewardess who was denied employment on the same day, but as a new employee why wouldn’t she be entitled to make the same argument?

Mr. Alan M. Levin: Well, the second half of my answer was going to be that I believe that she should be entitled to relief.

I was going to suggest the possible distinction.

I believe she should get relief and this in fact the Ache(ph) case, which was decided by the Second Circuit, The New York city Police won the case.

Justice John Paul Stevens: In fact should your client not if you are correct, your client merely get relief four month, four years, but for the four years plus whatever additional time she would have worked but for the unlawful…

Mr. Alan M. Levin: Exactly Mr. Justice Stevens and we are going for both constructive and actual seniority.

Unknown Speaker: The old complaint is that she was illegally fired.

Mr. Alan M. Levin: That she has been legally fired and that through its present action United gets present effect to that past discrimination.

Unknown Speaker: It all goes back to that and yet you can’t get any action for that firing in any court any place in the world.

Mr. Alan M. Levin: Solely, for that which she lost because of 1968 discrimination that is true.

On the other hand, nobody twisted United Airlines’ arm and told them to ignore Carolyn Evan’s seniority from 1966 to 1968.

Unknown Speaker: But United could evaded that where it simply by not rehiring.

Mr. Alan M. Levin: That is true.

Justice William J. Brennan: Mr. Levin, are you going to discuss Machinists?

Mr. Alan M. Levin: Yes I am and I will do so now Mr. Justice Brennan.

The Machinists case is clearly distinguishable from this one on three grounds; statutory policy, the statutory language and the legislative history.

First let us take a look at the Machinists case.

It was decided under the National Labor Relations Act in 1960 around the time of Steel Workers trilogy decided by this Court.

At that time, as Mr. Justice Harlyn expressly stated in his opinion, I refer to 362 U.S. 428.

The National Labor Relations Act was being viewed in the context of that case is primarily a regulatory statute.

The chief concern in that opinion was institutional stability in labor relations.

By contrast in the Evans’ case Title VII applies.

In 1964 and 1972 Congress reiterated the fact, as this Court Recognize in great (Inaudible) that the purpose of Title VII was remedial, (Inaudible).

Congress recognized that it would be upsetting the applecart.

Institutional stability was not the primer concern.

Secondly the statutory language; under the national…

Unknown Speaker: Well, (Inaudible) relied on Philips Doge for allowing restitution to people who had been discriminated against and Philips Doge rose into the National Labor Relations Act, did it not?

Mr. Alan M. Levin: I think what we were discussing here though is a NLRA case which arose at a time in 1960 with the particular interpretation on Section 10(b) of the Act.

I will agree that there are appropriate analogies with the National Labor Relations Act as this Court made clear in the Franks’ case, but the analogy does not apply here.

The second distinction that I would make is on the statutory language, whereas the NLRA prohibits complaints issuing based upon acts occurring prior to the six-month period.

Title VII of the Civil Rights Act does not use those terms.

Title VII speaks in terms of challenging a practice occurring with 180 days, the challenged practice, but more importantly the legislative history is really to key difference.

As Mr. Justice Harlyn stated in the Machinists case 362 U.S. 426, Congress’ policy was to let sleeping, collective, bargaining contracts lie.

Congress specifically, Mr. Justice Harlyn said, specifically adverted to the problem of the contracts with minority unions, had previously taken pains to protect minority unions against belated attack and had enacted 10(b) with that purpose in mind.

In Title VII by contrast, Congress has accepted the continuing violation theory, wrote in a two-year back pay limitation rule, has implicitly indicated with those two actions that there are cases when an employer’s past actions can be brought in to assess responsibility to assess liability.

Congress was explicitly concerned with seniority when it considered amendments for the 1970, for the Title VII in 1972 and Congress specifically approved the Paper Makers’ case.

We believe it is clear from the legislative history the cases that Congress accepted at the time it acted prior to the 72 amendments that Congress intended to prohibit practices which in present operation perpetuate the effects of the past the discrimination.

Unknown Speaker: Then why would not on that basis then back pay claims be entertainable?

Mr. Alan M. Levin: Back pay claims under what the circumstances Your Honor?

Unknown Speaker: Well, back pay claims for periods beyond the six-month period.

Mr. Alan M. Levin: Well, Congress had said that back pay claims would be recognizable beyond the six-month period.

Unknown Speaker: Well I know that, but you apparently say that, apparently believe that it took a special provision to do that.

Your claim here is without any provision like that.

You can make the seniority claim.

Mr. Alan M. Levin: Well, we are not seeking back pay and there is no provision in 706(g).

Unknown Speaker: I know, but you would not, on your theory you would not need any special provision to get back pay.

Mr. Alan M. Levin: That is true Your Honor.

Justice William H. Rehnquist: Well, I merely thought you see it that without it you would not have it.

Mr. Alan M. Levin: No, excuse me Your Honor, without 706(g) as our contention of the principle which still be valid, but the 706(g) is evidence of Congress’ intention when it was considering the 1972 amendments in Title VII.

Justice William H. Rehnquist: You say I suppose it is 706(g), in the absence of that you might be able to get back pay for eight or ten years that Congress…

Mr. Alan M. Levin: That is true.

Justice William H. Rehnquist: Cut off a right that would otherwise…

Mr. Alan M. Levin: It does cut both ways Mr. Justice Rehnquist but I believe…

Justice Byron R. White: Only in this argument if I understood you correctly, you conceded that you will not have a back pay claim on your theory?

Mr. Alan M. Levin: No, earlier than 1972 Mr. Justice White.

We do seek back pay for the seniority differential since 1972.

Justice Byron R. White: Oh! I understand that.

Chief Justice Warren E. Burger: We will resume there at 1 o’ clock counsel.

Mr. Alan M. Levin: Thank you, Mr. Chief Justice.

I would like to return to the point that was being discussed just before the luncheon recess that was raised by Mr. Justice White and Mr. Justice Rehnquist in reference to Section 716 (g) of the Act in order to avoid any question that I might have misstated Congress’ purpose.

It is true that the legislative history demonstrates, the Congress that the two-year limitation was essentially intended to limit back pay relief, so there would not be an unlimited period.

Our position is that the fact that there still is a two-year limitation period as opposed to a six month filing period as evidence for the acceptance of the theory of a continuing violation and the impact of past acts.

Justice Byron R. White: So, what about the reinstatement?

Mr. Alan M. Levin: Are we talking about reinstatement of employment Mr. Justice White?

Justice Byron R. White: I am talking about reinstatement of a person who was discriminatorily discharged and asked for a reinstatement after six months.

Mr. Alan M. Levin: Well, our position would be that if it could be demonstrated that the employer’s decision not to rehire the person…

Unknown Speaker: That was your answer the last time and I know is your answer to the next question is the same too

Let us assume that it is, then you just say I am full, I have not got any places.

Mr. Alan M. Levin: Well, then presumably the employer’s reason is a non-discriminatory reason and we would hope that that case is distinguishable from ours on that basis.

I would also like to return to a point which was made by Mr. Bernstein regarding the Paper Makers’ case.

Mr. Bernstein indicated that under Paper Makers there was a present discriminatory seniority policy.

I believe that an alternative wording or an alternative interpretation to that case is more suitable and correct.

That is that the Court in Paper Makers found that the seniority practices and issues were in fact facially neutral and arrived that the discriminatory nature thereof only by reference to past discrimination which was incorporated and in fact in that case plaintiffs did have to prove the existence of past discrimination, the past discrimination that was in hiring.

I would suggest also that there are strong policy references for accepting the principle advanced by Ms. Evans here.

If this court reverses the Evans decision, we feel that it maybe well nigh impossible in the future to attack the non-overt, non-obvious, subtle but pervasive practices in employment which do in fact extend discrimination into the present be it in a departmental seniority system, seniority practices and employment seniority system, a promotional system, possibly in the testing area as well because the only really effective way to get at subtle but pervasive discrimination is by looking at the roots of the practice, the historical background of the practice, how did it originate, what affect does it have.

If we cannot look at that then I submit that the really pervasive form of discrimination in our society today maybe untouchable because the days of the overt and the obvious seems to be passing.

Seldom if ever or less often than before do we see explicit signs of discrimination.

No Jews need apply, no blacks need apply, no Catholics need apply.

Today the prevalent form of discrimination is subtle and we believe that the way to get at it is with the principle we have here and upholding of the Evans decision, far from opening a Pandora’s Box will keep open a necessary avenue of relief under Title VII.

Chief Justice Warren E. Burger: Well, as one of the Justices suggested, however, to affirm will mean that all the incentives on the part of an employer to reemploy a person in the posture of your client is not only is the incentive removed, there is a disincentive for rehiring, is it not?

Mr. Alan M. Levin: Well, Mr. Chief Justice I believe that that problem, if it exists is in fact the de minimis because I think that it is…

Chief Justice Warren E. Burger: It is not de minimis for the particular person involved.

It depends on whether the concern is addressed to the particular individual or to the generality of womankind in this situation.

Mr. Alan M. Levin: Well, what I am suggesting Mr. Chief Justice is that it is rare for an employer to rehire a past discriminatory.

I am also suggesting that if it can be demonstrated that the employer’s action is in fact based upon past discrimination, but he does not rehire because the person is a past discriminatory that that would be closer to our case different from the Collins case.

If the court has no further questions, I thank you.

Chief Justice Warren E. Burger: Do, you have anything further Mr. Bernstein?

Rebuttal of Stuart Bernstein

Mr. Stuart Bernstein: Mr. Chief Justice Burger, the point that you just made concerning the disincentive to hire was made by the Court of Appeals in Evans one, it seems to concern it very much, although it completely ignored it in Evans two.

The same point has disturbed the District Court in California last year in the case in which it attempted to reconcile, Collins and Evans and expressed some concern about that dichotomy now between these cases that it was perfectly alright not to rehire, but once you did, you ran into this host of problems that have been raised here.

That was Kennan v. Pan-Am cited in the briefs.

I wish to respond very briefly to some of the points made.

We agree there can be a continuing violation, no question about that and we agree if there is a continuing violation that the statute now provides as a result of the 1972 amendments, that there can be a two-year period of back pay, but that two-year period is a limitation of liability, not a statute of limitations point.

Up to that point, the limitations for back pay was drawn from the various state laws as it is now under Section 1981 of the earlier Civil Rights Act and it was to make uniform.

A back pay period that the 1972 amendments were passed, and Griggs is a good example of a continuing violation where the employer at the time of the litigation required a passage of a one Electic test and the maintenance of the high school diploma in order to progress into higher paying jobs.

That was going on, the aborted attempt to justify that and this court said that it had a dispirit affect now and therefore was now a discriminatory even though facially neutral because the requirements for the test and the diploma were required of blacks as well as whites.

It was neutral than discriminate, the fact is that the blacks could more readily -- the whites could more readily meet the requirement than the blacks and was therefore held to be now a discrimination and a continuing discrimination.

That is not the case here.

There is no contention here.

There never has been.

That the united seniority system which is based on date of hire is discriminatory in any way with respect to race, sex or any other matter, in fact I think that has been completely conceded all along.

United seniority system has not been challenged.

The thesis stated in respondent’s brief on page 14 is this.

By relying on the 1968 termination, as creating a break in service and giving affect to that break in service in its current seniority practice with respect to Ms. Evans, United is actively enabling that prior discrimination to reach effectively into the present.

It says we are treating it as a break in service.

Yes we are, we concede.

That is exactly what it was, it was a break in service and it would be a break in service for any employee, no matter how that break occurred.

But the fact that we do not give credit for that break in service in 1972 does not create a present discriminatory act, as counsel insists, it is inevitable.

There is no way you can get to this point without relying on a time barred claim and United is sensitive to the problems of the civil rights movement as its counsel and I do not think it is incumbent upon us to defend ourselves here.

We concede for the purposes of this case, that the no marriage rule was a violation, up until 1968 when we abandoned it and we concede that if Ms. Evans had filed the charge within 90 days of her termination.

She should have been back working long ago with full seniority and…

Unknown Speaker: Mr. Bernstein, but if you go to the trial in this case and suppose the respondent could show that another employee in the same position was discharged for theft and three years later it was found out that employee was not guilty of theft and was rehired and automatically given full seniority rights, that would put a damper on you, would it not?

Mr. Stuart Bernstein: I am sorry, I think I would have to ask you to qualify the question a bit.

If you assume the employee was discharged for theft and it find that they filed a timely grievance.

Unknown Speaker: No, no I have not found any thing.

Mr. Stuart Bernstein: Well, then sir United would have had no obligation.

If in fact they did, that would be a different case and a different complaint would have to be filed and if counsel can bring up such examples, but that is not this case.

Unknown Speaker: But would it not show that United was using a different standard?

Mr. Stuart Bernstein: Yes sir, yes it would, but I submit to you, that is not this case, I responded to Justice --

Unknown Speaker: Because you cannot go to trial.

Mr. Stuart Bernstein: I am sorry, in this case I cannot go to trial.

Let us suppose this Your Honor, let us suppose we had a system in which for all employees who voluntarily quit.

We would permit them to return four years later and give them full seniority credit for past service, but we would not do the same thing for employees who had been terminated because of the “no marriage” rule.

I think you can make out a different case, but that is not this case.

You would say then our present practice, our present seniority system is discriminatory because it grants the seniority on a different basis to employees whose only differentiation is prior discrimination.

I would concede that is the kind of case that is typified by United Paper Makers.

That is not the case here.

If such a case exists I suggest the counsel bring a new cause of action against us, but that is not what has being tried here, that is not the issue at all.

A counsel says that the Machinists can be distinguished because of the historical context in which it arose, the congeniality for collective bargain agreements, the desire to stabilize labor relations.

The fact is that in that case this court cited with approval an NLRB case Bowman by name, the citation of which is 113 NLRB 731, I have 1975 in my notes, but I am sure it was, must have been 1955 and cited with approval by the court in Machinists that was a seniority case.

There an employee who had been on layoff, on return from layoff was given less seniority than he was entitled to under the collective bargaining agreement by some conspiracy between the union and the company because he had occupied the supervisory job in the meantime.

So he was in a lower seniority slot.

Well, six months after he came back, there was a layoff and because of his low seniority, relative low seniority because of what happened when he came on board, he was laid off earlier than he would have otherwise been and at that time he filed an unfair labor practice charge and the Board held it was time barred because the event that caused that situation occurred when they failed to give him the seniority to which he was entitled and there the same point was made that if otherwise this can go on for ten, 20 30 years indefinitely and you simply read Section 10 (b) out of the National Labor Relations Act, just as you had read out Section 706 (e) out of the Civil Rights Act of 1964.

Your Honor, our thesis is a very simple one.

There is no way that the case can be made out here without reliance on the time barred event and the statute limitations sort to of be mean anything then the Court of Appeals should be reversed in District Courts opinion, reinstated.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.