431 U.S. 553 (1977), 76-333, United Air Lines, Inc. v. Evans

Docket Nº:No. 76-333
Citation:431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571
Party Name:United Air Lines, Inc. v. Evans
Case Date:May 31, 1977
Court:United States Supreme Court

Page 553

431 U.S. 553 (1977)

97 S.Ct. 1885, 52 L.Ed.2d 571

United Air Lines, Inc.



No. 76-333

United States Supreme Court

May 31, 1977

Argued March 29, 1977




Where respondent female flight attendant failed to file a timely claim against petitioner airline for violation of Title VII of the Civil Rights Act of 1964 when her employment was terminated in 1968 pursuant to a later invalidated policy because she got married, petitioner held not to commit a present, continuing violation of Title VII by refusing to credit respondent, after rehiring her in 1972, with pre-1972 seniority, absent any allegation that petitioner's seniority system, which is neutral in its operation, discriminates against former female employees or victims of past discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, distinguished. Moreover, § 703(h) of Title VII, which provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system if any disparity is not the result of intentional discrimination, bars respondent's claim, absent any attack on the bona fides of petitioner's seniority system or of any charge that the system is intentionally designed to discriminate because of race, color, religion, sex, or national origin. Pp. 557-560.

534 F.2d 1247, reversed.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post p. 560.

Page 554

STEVENS, J., lead opinion

[97 S.Ct. 1887] MR. JUSTICE STEVENS delivered the opinion of the Court.

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 1964,1 the question now presented is whether the employer is committing a second violation of Title VII by refusing to credit her with seniority for any period prior to February, 1972.

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.2 When she married in 1968, she was therefore forced to resign. Although it was subsequently decided that such a resignation violated Title VII, Sprogis v. United Air Lines, 444 F.2d 1194 (CA7 1971), cert. denied, 404 U.S. 991, respondent was not a party to that case, and did not

Page 555

initiate any proceedings of her own in 1968 by filing a charge with the EEOC within 90 days of her separation.3 A claim based on that discriminatory act is therefore barred.4

In November, 1968, United entered into a new collective bargaining agreement which ended the preexisting "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.5 She has not alleged that any other rehired employees were given credit for prior service with United, or that United's administration of the seniority system has violated the collective bargaining agreement covering her employment.6

Page 556

[97 S.Ct. 1888] Informal requests to credit her with pre-1972 seniority having been denied, respondent commenced this action.7 The District Court dismissed the complaint, holding that the failure to file a charge within 90 days of her separation in 1968 caused respondent's claim to be time-barred, and foreclosed any relief under Title VII.8

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

Page 557

rehearing and unanimously reversed. 534 F.2d 1247 (CA7 1976). We granted certiorari, 429 U.S. 917, and now hold that the complaint was properly dismissed.

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.9 She advances two reasons for holding that United's seniority system illegally discriminates against her: first, she is treated less favorably than males who were hired after her termination in 1968 and prior to her reemployment in 1972; second, the seniority system gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination. Neither argument persuades us that United is presently violating the statute.

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 reemployed, 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 [97 S.Ct. 1889] employees, or that the failure to

Page 558

credit prior service differentiates in any way between prior service by males and prior service by females. Respondent has failed to allege that United's seniority system differentiates between similarly situated males and females on the basis of sex.

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 nondiscriminatory reason. In short, the system is neutral in its operation.10

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

Page 559

ed., Supp. V), after an illegal discriminatory act or practice had been proved, 424 U.S. at 762-768. When that case reached this Court, the issues relating to the timeliness of the charge11 and the violation of Title VII12 had already been decided; we dealt only with a question of remedy. In contrast, in the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972.13

The difference between a remedy issue and a violation issue is highlighted by the analysis of § 703(h) of Title VII in Franks.14 As we held in that case, by its terms, that section does not bar the award of retroactive seniority after a violation has been [97 S.Ct. 1890] proved. Rather, § 703(h) "delineates which employment practices are illegal and thereby prohibited, and which are not," 424 U.S. at 758.

That section expressly provides that it shall not be an unlawful employment practice to apply different terms of employment

Page 560

pursuant to a bona fide seniority system, provided that any disparity is not the result of intentional...

To continue reading