42 U.S.C. § 2000e-2

Section 2000e-2(h) permits different pay rates under a bona fide seniority system based on objective criteria applied impartially to employees.

Mary Josephine WOOD, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee · filed 1981-01-19(h)

The provisions of 42 U.S.C. § 2000e-2(h) make it clear that a bona fide seniority system is a valid defense to the application of different standards of compensation.

Section 2000e-2(h) does not protect a seniority system established or maintained with a discriminatory purpose, even if its terms are facially neutral.

United States v. Georgia Power Co. · filed 1981-01-22(h)

Considering the totality of the circumstances surrounding the seniority system, as found by the district court after trial, we hold the seniority system was not bona fide within the meaning of section 703(h).

Section 2000e-2(h) protects a bona fide seniority system that has not independently driven racial discrimination and has created legitimate expectations for employees who participated without discriminatory motive.

Miller v. Continental Can Co., Inc. · filed 1981-01-30(h)

Therefore, this Court concludes, based on Teamsters, that a bona fide seniority system is one that has not been an independent engine of racial discrimination, and, hence, one that has created “legitimate expectations” in employees who have participated in the system without discriminatory motive.

Section 2000e-2(h) protects a bona fide seniority system, but a factual dispute about whether separate seniority lists were maintained for a discriminatory purpose prevents summary judgment on that issue.

Board of Education v. Califano · filed 1981-02-11(h)

Consequently, there is a material question of fact raised as to whether the Board’s purpose in maintaining the separate lists was discriminatory, or whether it was to facilitate the maintenance of separate physical education programs for male and female students, and to meet the distinct needs of the male and female students in those programs. Accordingly, summary judgment cannot be granted either party on this issue.

Section 2000e-2(h) does not protect a seniority system that treats racial groups unequally and is maintained for a discriminatory purpose.

Sears v. Bennett · filed 1981-03-11(h)

In sum, the brakeman’s seniority system does not fall within the exception created by Congress in section 703(h) because it does not apply equally to all races, because it was not based on a rational craft delineation, and because it was maintained with the purpose of discriminating against black employees.

Section 2000e-2(h) does not protect an employer's use of a test to discriminate in hiring by calling it a merit system.

Association Against Discrimination in Employment, Inc. v. City of Bridgeport · filed 1981-04-08(h)

First, since the 1971 test was “used” to discriminate against minorities, it is expressly excluded from § 703(h).

Section 2000e-2(h) permits valid employment tests and different compensation and employment terms under bona fide merit systems.

Members of the Bridgeport Housing Authority Police Force v. City of Bridgeport · filed 1981-04-20(h)

Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1976), not only permits valid tests but also specifically permits employers to apply different standards of compensation and other terms of employment pursuant to bona fide merit systems.

Section 2000e-2(h) does not protect demotion decisions when seniority does not control them and supervisors may override it using subjective standards.

Taylor v. Teletype Corp. · filed 1981-05-01(h)

As a defense, Teletype asserts that demotions, because determined pursuant to a bona fide seniority system, are protected under section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1976). ... The court could properly discount the testimony of Teletype’s witness that seniority determines demotions as contrary to the written guidelines.

Section 2000e-2(h) does not protect a seniority system that applies unequally across races, rests on an irrational craft division, and is maintained for a discriminatory purpose.

Sears v. Bennett · filed 1981-05-11(h)

In sum, the brakeman's seniority system does not fall within the exception created by Congress in section 703(h) because it does not apply equally to all races, because it was not based on a rational craft delineation, and because it was maintained with the purpose of discriminating against black employees.

Section 2000e-2(h) protects a seniority system only if it was created and maintained without an intention to discriminate.

25 Fair empl.prac.cas. 1262, 26 Empl. Prac. Dec. P 31,856 · filed 1981-05-14(h)

We therefore hold that the Bessemer system cannot qualify for the immunity extended by section 703(h) of Title VII only to those seniority systems created and maintained without intention to discriminate.

Section 2000e-2(h) protects a seniority system only if it was created and maintained without an intention to discriminate.

Terrell v. United States Pipe & Foundry Co. · filed 1981-05-14(h)

Because the record clearly demonstrates racially discriminatory purposes underlying the creation and maintenance of the Bessemer seniority system, we hold that it is not bona fide within the meaning of 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) does not protect a hiring test used to discriminate against minority applicants as a bona fide merit system.

Association Against Discrimination in Employment, Inc. v. City of Bridgeport · filed 1981-05-29(h)

First, since the 1971 test was "used" to discriminate against minorities, it is expressly excluded from § 703(h). More fundamentally, it would defy reason to characterize as a "bona fide merit system" a test that does not measure the fitness of those who take it for the positions to be filled according to its results.

Section 2000e-2(h) does not protect demotion decisions as part of a bona fide seniority system when seniority does not control those decisions.

Taylor v. Teletype Corporation · filed 1981-06-15(h)

As a defense, Teletype asserts that demotions, because determined pursuant to a bona fide seniority system, are protected under section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1976). The district court disagreed, finding that seniority does not control the making of demotions, relying on a Hoard finding to that effect and on article 28 of the collective bargaining agreement, which sets forth numerous subjective standards that supervisors may use to override the seniority system. We cannot characterize the trial court's finding as clearly erroneous.

Section 2000e-2(h) permits a bona fide seniority system even if it maintains the present effects of past discrimination.

Cormier v. P. P. G. Industries, Inc. · filed 1981-06-18(h)

In this case the record amply supports the conclusion that the system was adopted for significant business reasons, is essential for the safe and efficient operation of the plant, and is bona fide within the meaning of § 703(h) of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) protects bona fide seniority systems from being overridden by Executive Order No. 11,246.

United States v. Trucking Management, Inc. · filed 1981-08-14(h)

Although we think the legislative history clearly refutes the Government’s argument, we note an additional consideration demonstrating that Congress did not intend to permit executive orders to override seniority systems that are exempt under section 703(h).

Section 2000e-2(h) protects seniority systems that perpetuate the effects of pre-Act discrimination, but not those that perpetuate the effects of post-Act discrimination.

Firefighters Inc. for Racial Equality v. Bach · filed 1981-09-25(h)

This section protects seniority systems that perpetuate the effects of discrimination that occurred before the effective date of Title VII, but not seniority systems that perpetuate the effects of post-Aet discrimination.

Section 2000e-2(h) protects a bona fide seniority system that perpetuates the effects of pre-Act discrimination when the system was adopted and maintained without discriminatory intent.

Taylor v. Mueller Co. · filed 1981-10-05(h)

On the entire record we conclude that the district court properly applied controlling law to determine that § 703(h) precludes a finding that the plaintiff is entitled to relief for pre-Act discrimination of the Mueller Co. and I.A.M.

Section 2000e-2(h) protects a bona fide seniority system even when it perpetuates the effects of pre-Act discrimination.

Taylor v. Mueller Co. · filed 1981-10-05(h)

The fact that the black employees were locked into lower job classifications than their white fellow employees is not sufficient to deprive the system of its § 703(h) immunity.

Section 703(h) allows an employer to rebut a prima facie Title VII case by showing that differences in pay or employment conditions result from a bona fide seniority system.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BALL CORPORATION, Et Al., Defendants-Appellees · filed 1981-11-10(h)

Thus, if an employer shows that differences in pay or employment conditions result from the operation of a bona fide seniority system, the plaintiff’s prima facie case is effectively rebutted.

Section 2000e-2(h) does not prevent an employer and union from modifying a seniority system through an affirmative action agreement that reduces its adverse impact on minority employees.

Tangren v. Wackenhut Services · filed 1981-11-12(h)

Neither the statute nor the case law, however, requires that the courts immunize seniority rights from all affirmative action programs.

Section 2000e-2(h) protects bona fide seniority systems whether adopted before or after Title VII took effect.

American Tobacco Co. v. Patterson · filed 1982-04-05(h)

Section 703(h) makes no distinction between seniority systems adopted before its effective date and those adopted after its effective date.

Section 2000e-2(h) permits an unwritten bona fide seniority system when its existence and bona fides are proved.

28 Fair empl.prac.cas. 1092, 28 Empl. Prac. Dec. P 32,677 George James Williams v. New Orleans Steamship Association · filed 1982-04-09(h)

That the terms of the system are not in writing may go to the force of the proof necessary to establish its existence, but that fact does not render the system automatically invalid. In the instant case, defendants succeeded in proving the existence and bona fides of the system through the testimony of witnesses, including one of the plaintiffs, despite the fact that there was no written evidence of the system.

Under § 2000e-2(h), discriminatory intent in a challenge to a seniority system is a factual finding for the trial court, subject to review for clear error.

Pullman-Standard v. Swint · filed 1982-04-27(h)

We do assert, however, that under § 703(h) discriminatory intent is a finding of fact to be made by the trial court; it is not a question of law and not a mixed question of law and fact of the kind that in some cases may allow an appellate court to review the facts to see if they satisfy some legal concept of discriminatory intent.

Section 2000e-2(h) does not protect a seniority system that operates against women and is maintained for a discriminatory purpose.

Jones v. Cassens Transport · filed 1982-05-07(h)

It does not operate uniformly, except against women, and it has not been maintained (if negotiated) free from unlawfully discriminatory purpose.

Section 2000e-2(h) does not bar relief for discrimination independent of a bona fide seniority system when seniority-based layoffs would undo that relief.

Boston Chapter, NAACP v. Beecher · filed 1982-05-11(h)

We find nothing in this trilogy that precludes a court from ordering relief to remedy discrimination that exists apart from the adoption or application of a bona fide seniority system. The original consent decrees in the cases before us, decided long before the Supreme Court cases, were directed at such independent violations, the use of discriminatory certification examinations. None of the Supreme Court cases apply to the basic issue at stake here; the power of a court in a litigated discrimination case to ensure that relief already ordered not be eviscerated by seniority-based layoffs.

Section 2000e-2(h) protects differences in treatment under a bona fide seniority system only when they result from applying that system.

Scarlett v. Seaboard Coast Line Railroad Co. · filed 1982-05-24(h)

Hence it cannot be said that the different treatment accorded the plaintiffs was "pursuant to" the seniority system, for quite the opposite occurred. The rights granted to the plaintiffs by the promotion provision were simply ignored. We therefore conclude that section 703(h) offers no immunity to the defendants and affirm the trial court's judgment that those plaintiffs who established a prima facie case were entitled to seniority relief under section 1981.

Section 2000e-2(h)’s bona fide seniority system exemption is an affirmative defense that can be waived by failing to plead it properly.

Jackson v. Seaboard Coast Line Railroad · filed 1982-06-17(h)

This decision does not affect the disposition of this case, however, because even if the promotion practices under attack are components of a bona fide seniority system within the meaning of § 703(h), appellant has waived its § 703(h) defense by failing to properly plead it under Fed.R.Civ.P. 8(c).

Section 2000e-2(h)'s bona fide seniority system exemption must be pleaded as an affirmative defense or it is waived.

Jackson v. Seaboard Coast Line Railroad · filed 1982-06-17(h)

Although we hold that § 703(h) exemption for bona fide seniority systems constitutes an affirmative defense for pleading purposes, we do not address in this opinion the proper allocation of the burden of proving that the challenged discrimination results from a bona fide seniority system.

Section 2000e-2(h) precludes a challenge directed at a bona fide bidding-seniority system.

Samuel E. HEBERT, Et Al., Plaintiffs-Appellants, v. MONSANTO COMPANY and Texas City, Texas Metal Trades Council (AFL-CIO · filed 1982-08-09(h)

The first of these challenges clearly goes to the bidding-seniority system, and is subject to the preclusive effect of section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h).

Section 703(h) protects a seniority system with disparate racial effects only if its differences in treatment are not intended to discriminate by race.

29 Fair empl.prac.cas. 1389, 29 Empl. Prac. Dec. P 32,996 · filed 1982-08-16(h)

And, in our judgment, the court was correct in concluding that the union's seniority system is not bona fide within the meaning of Section 703(h) of Title VII.

Section 2000e-2(h) protects a bona fide seniority system only when its differences in treatment do not result from an intent to discriminate because of race.

Wattleton v. International Brotherhood of Boiler Makers, Iron Ship Builders, Blacksmiths, Forgers & Helpers · filed 1982-08-16(h)

And, in our judgment, the court was correct in concluding that the union’s seniority system is not bona fide within the meaning of Section 703(h) of Title VII.

Section 2000e-2(h)'s bona fide seniority system inquiry may require findings on whether the system discouraged transfers by locking Black employees into less remunerative departments and on discriminatory motivation in establishing the system.

Swint v. Pullman-Standard · filed 1982-12-06(h)

Accordingly, we VACATE our judgment as to this issue and REMAND the case to the district court for further proceedings to determine, what impact the "locking-in" of blacks to the least remunerative departments had on discouraging transfer between seniority units, and the significance of the discriminatory motivation of IAM with respect to the institution of USW's seniority system, and any other proceedings that may be deemed necessary in view of our prior opinion and that of the United States Supreme Court.

Section 703(h) protects a bona fide, facially neutral seniority system despite a disproportionate impact on minorities; a challenge to its implementation requires facts supporting intentional discrimination.

Afro-American Police League v. Fraternal Order of Police · filed 1982-12-08(h)

Under Title VII, a bona fide seniority system which is neutral on its face is protected under Section 703(h), 42 U.S.C. § 2000e-2, notwithstanding a disproportionate impact on minorities, regardless of whether the seniority system in question was adopted before or after the enactment of Title VII. ... Such a bare conclusory allegation, without more, cannot survive a motion to dismiss. Therefore, the allegations relating to a violation of Title VII, insofar as they concern the seniority system, are hereby dismissed.

Section 2000e-2(h) does not protect a seniority system maintained for a discriminatory purpose.

United States v. Georgia Power Company · filed 1983-01-17(h)

We adhere to our previous conclusion. Without repeating everything we said in our earlier opinion, the findings of fact establish beyond doubt that the seniority system penalized blacks more than whites, that the unequal treatment was not attributable to a legitimate division of bargaining units, and that the seniority system not only originated in a period of discrimination at Georgia Power but also was maintained out of an unlawful purpose.

Section 2000e-2(h) does not shield a selection system from disparate impact scrutiny merely because the employer calls it a merit system; the system must be bona fide.

Harrison v. Lewis · filed 1983-01-25(h)

It is, after all, the very “bona fide” nature of the system that defendants have failed to demonstrate. The conclusion that government selection systems are not immune from challenge under a disparate impact standard is supported by the legislative history of the 1972 amendments to Title VII, which extended coverage to federal employees.

Section 2000e-2(h) requires courts assessing a seniority system’s discriminatory intent to consider its disparate impact and other relevant evidence of racial motives.

30 Fair empl.prac.cas. 1515, 31 Empl. Prac. Dec. P 33,323 · filed 1983-02-04(h)

Accordingly, we vacate our judgment regarding the seniority system issue and remand the case to the district court for further proceedings to consider the following evidence as indication of intentional discrimination in the creation and maintenance of the plant's seniority system: (1) the disparate impact of the Bessemer seniority system on black employees; 1 (2) the avowedly racist policies of the craft unions; (3) the 1950 racial exchange of positions as an integral piece of evidence manifesting underlying racial purposes; and (4) the cumulative effect of separate pieces of evidence of racial motives.

Section 2000e-2(h) permits travel assignments made under a seniority system adopted without discriminatory intent.

Goicoechea v. Mountain States Telephone and Telegraph Company · filed 1983-03-01(h)

It is undisputed that employees’ travel assignments were made on the basis of a seniority system which was adopted without discriminatory intent. The travel requirement is therefore lawful under the express provisions of 42 U.S.C. § 2000e-2(h).

Section 703(h) protects bona fide seniority systems established after Title VII’s enactment.

Freeman v. Motor Convoy · filed 1983-03-21(h)

In light of the Supreme Court's decision in Patterson, there clearly is no merit to plaintiffs' assertion that Section 703(h) is limited to pre-Act seniority systems. Accordingly, the court concludes that the district court did not err in applying Section 703(h) to the seniority system's coverage of the Atlanta shop and yard employees.

Section 2000e-2(h) requires consideration of disparate impact and other evidence of racial motive when determining whether a seniority system was intentionally discriminatory.

Terrell v. United States Pipe & Foundry Co. · filed 1983-02-04(h)

Accordingly, we vacate our judgment regarding the seniority system issue and remand the case to the district court for further proceedings to consider the following evidence as indication of intentional discrimination in the creation and maintenance of the plant’s seniority system: (1) the disparate impact of the Bessemer seniority system on black employees; ... (4) the cumulative effect of separate pieces of evidence of racial motives.

Section 2000e-2(h) protects layoffs under a bona fide seniority system from being treated as unlawful discrimination solely because they disproportionately affect minorities.

Jones v. Milwaukee County · filed 1983-10-31(h)

Given the protection afforded bona fide seniority systems by section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), therefore, the layoffs cannot be said to constitute unlawful discrimination in themselves, even if they have a disparate impact upon minorities.

Section 2000e-2(h) permits a seniority system with unequal effects when it was neither devised nor operated with a discriminatory purpose.

Seep v. Commercial Motor Freight, Inc. · filed 1983-12-07(h)

The law is clear that, absent a discriminatory purpose, “the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.” ... The evidence of both the union and the company was sufficient to establish that the seniority system was neither devised nor operated with a discriminatory purpose. This evidence was not rebutted, and the Court holds that the operation of the seniority system did not violate Title VII.

Section 2000e-2(h) protects practices within a bona fide seniority system from disparate-impact liability and requires proof of discriminatory treatment.

Firefighters Inc. for Racial Equality v. Bach · filed 1984-04-03(h)

Initially, the trial court must make a determination as to whether the Department's seniority system is bona fide. Next, it must consider which of the alleged discriminatory practices are part of that bona fide system. Those practices deemed part of a bona fide system are to be evaluated under the disparate treatment theory, while all other employment practices receive evaluation under the disparate impact theory.

Section 2000e-2(h) permits neutral seniority transfer rules when the evidence does not require an inference of discriminatory motive.

34 Fair empl.prac.cas. 1316, 34 Empl. Prac. Dec. P 34,389 · filed 1984-05-10(h)

Desirable jobs at the mill were not confined to traditionally white departments, but to the historically white lines of progression. Thus, a black employee was able to transfer to a skilled line of progression without losing either his retained mill or departmental seniority. Given these facts, we cannot conclude that the district court clearly erred in failing to draw the inference of discriminatory motive from the maintenance of these transfer rules.

A facially neutral seniority system’s transfer rules may be upheld despite their unequal effects when the evidence does not establish a discriminatory purpose.

Gantlin v. West Virginia Pulp & Paper Co. · filed 1984-05-10(h)

Given these facts, we cannot conclude that the district court clearly erred in failing to draw the inference of discriminatory motive from the maintenance of these transfer rules.

Section 2000e-2(h) permits an employer to apply a bona fide seniority system absent proof of an intention to discriminate.

Firefighters Local Union No. 1784 v. Stotts · filed 1984-06-12(h)

Section 703(h), however, permits the routine application of a seniority system absent proof of an intention to discriminate.

Section 2000e-2(h) permits a pre-Act preference for current employees as a bona fide seniority system when it was not intended to discriminate.

Allen v. Prince George's County · filed 1984-06-26(h)

We agree with the district court's finding that Prince George's County's preference system was not intended to discriminate, and was a valid seniority system under Sec. 703(h) of Title VII.

Section 2000e-2(h) does not bar credit for service before Title VII took effect when calculating backpay for later discrimination.

Laffey v. Northwest Airlines · filed 1984-07-20(h)

Clearly, section 703(h) does not preclude the crediting of retroactive pre-Act longevity in the present case.

Section 2000e-2(h) does not bar crediting service before Title VII took effect when calculating backpay for a proven violation.

Laffey v. Northwest Airlines, Inc. · filed 1984-07-20(h)

Clearly, section 703(h) does not preclude the crediting of retroactive pre-Act longevity in the present case.

Section 2000e-2(h) protects the operation of a seniority agreement unless it was adopted with intent to discriminate.

Mozee v. Jeffboat, Incorporated, and Harold Barnes v. Jeffboat, Incorporated · filed 1984-10-12(h)

We recognize that Title VII protects the operation of the seniority agreement unless the agreement was adopted with the intent to discriminate. 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) gives an employer an affirmative defense for decisions made under a bona fide seniority system; the employer must establish that the system is facially neutral and serves a legitimate purpose, while the plaintiff bears the burden of proving discriminatory intent.

Firefighters Inc. for Racial Equality v. Bach · filed 1985-06-11(h)

In sum, I employ a three-step analysis to allocate burdens of proof regarding bona fide seniority systems under § 703(h). First, the plaintiff is required to establish a prima facie case of discrimination under either a disparate treatment or impact theory. Second, as an affirmative defense, the defendant may seek to establish that the personnel decisions involved were made pursuant to a bona fide seniority system. At this stage, the issues are limited to: (1) whether the practice is within the scope of § 703(h); and (2) whether the system is bona fide. On the latter issue, defendant must establish that the system is facially neutral and that it rationally furthers some legitimate purpose. Third, the plaintiff bears the burden of proving that the otherwise bona fide seniority system results from an intent to discriminate.

Section 2000e-2(h)'s protection for bona fide seniority systems does not control a promotion remedy that does not override such a system.

Paradise v. Prescott · filed 1985-08-12(h)

Here, the order under review involves promotions, not layoffs pursuant to a bona fide seniority system. Section 703(h) of Title VII simply is not a controlling factor in this case.

Section 2000e-2(h) protects bona fide seniority systems, but does not cover a composite-score rule used to rank employees hired on the same day for layoffs.

United States v. City of Cincinnati · filed 1985-08-29(h)

However, the district court erred in ordering the entire case closed and not addressing the issue raised by black and female officers laid off on the basis of composite scores while white male officers hired on the same date were retained. This issue was raised by the appellants when they intervened, and was properly before the district court. This was a “non-seniority” aspect of the collectively bargained rule pertaining to layoffs which was not covered by § 703(h).

Section 2000e-2(h) protects bona fide seniority systems, but a system applied unevenly against women and maintained for a discriminatory purpose does not qualify.

Jones v. Cassens Transport · filed 1985-09-17(h)

Although neither the seniority system nor the Arbitral decision required the discriminatory result which has obtained, to the extent that the injuries sustained by these plaintiffs may be attributed to defendant union’s de facto seniority system at Square Deal, that system was not bona fide within the meaning of § 703(h), 42 U.S.C. § 2000e-2(h) or Elliott-Larsen’s comparable clause, M.C.L.A. § 37.2211.

Section 2000e-2(h) protects a bona fide seniority system, but does not cover a rule that ranks employees hired on the same day by composite scores for layoffs.

United States v. City of Cincinnati · filed 1985-10-16(h)

However, the district court erred in ordering the entire case closed and not addressing the issue raised by black and female officers laid off on the basis of composite scores while white male officers hired on the same date were retained. This issue was raised by the appellants when they intervened, and was properly before the district court. This was a "non-seniority" aspect of the collectively bargained rule pertaining to layoffs which was not covered by Sec. 703(h).

Section 2000e-2(h) permits an employer to apply different employment terms pursuant to a bona fide seniority system.

Gibson v. Missouri Pacific Railroad · filed 1985-10-29(h)

It is not an unlawful employment practice under Title VII for an employer to apply different terms, conditions or privileges of employment pursuant to a bona fide seniority system. 42 U.S.C. § 2000e-2(h). The unmistakable purpose of this part of Title VII was to make it clear that the routine application of a bona fide seniority system would not be unlawful under Title VII.

Section 2000e-2(h) treats a promotion system based on length of employment as a seniority system.

Calloway v. Westinghouse Electric Corp. · filed 1986-08-04(h)

The collective bargaining agreements in the present case clearly provide in Article XX that the employees’ length of employment will govern promotions or upgrading within the hourly bargaining unit. Westinghouse’s system is therefore a seniority system within the meaning of Title VII.

Section 2000e-2(h) permits differences in compensation and promotion attributable to a bona fide seniority system that is not intended to discriminate.

Lucille P. Pierce v. Duke Power Company · filed 1987-02-04(h)

42 U.S.C. Sec. 2000e-2(h) provides that it is not a violation of the law for an employer to apply different standards of compensation, terms, conditions or privilege based on a bona fide seniority system, provided that the system is not intended to establish a de facto discrimination. ... Where, as here, the alleged discrimination is entirely attributable to a bona fide seniority system, the employer, as a matter of law, may not be held liable.

Section 2000e-2(h) permits a bona fide seniority system adopted without discriminatory intent and maintained free of illegal purpose, even if it perpetuates past discrimination.

Black Law Enforcement Officers Ass'n v. City of Akron · filed 1987-07-22(h)

A seniority system will be valid so long as an intent to discriminate did not enter into its adoption and it has been maintained free from any illegal purpose. ... In the instant case, the burden fell on plaintiffs to show the existence of such a discriminatory intent or illegal purpose. The district court concluded that plaintiffs failed to carry this burden. We agree. The seniority system used in the promotion process is neutral and applies equally to all officers, regardless of their race.

Section 2000e-2(h) permits a bona fide seniority system adopted and maintained without discriminatory intent.

Black Law Enforcement Officers Ass’n v. City of Akron · filed 1987-09-03(h)

A seniority system will be valid so long as an intent to discriminate did not enter into its adoption and it has been maintained free from any illegal purpose. ... The seniority system used in the promotion process is neutral and applies equally to all officers, regardless of their race.

Section 2000e-2(h) protects bona fide seniority systems when differences in employment terms are not the result of an intent to discriminate.

Wesley P. BERNARD, Et Al., Plaintiffs-Appellants, v. GULF OIL CORPORATION, Et Al., Defendants-Appellees · filed 1988-04-18(h)

Section 703(h) insulates bona fide seniority systems from the dictates of § 703(a), by providing that, ... provided that such differences are not the result of an intention to discriminate because of race, color....

Section 2000e-2(h) protects a bona fide seniority system when it was not created or maintained with discriminatory intent.

Swint v. Pullman-Standard · filed 1988-09-21(h)

The plaintiffs appeal from the district court's decision that the nontransferable seniority system under which Pullman and USW operated in awarding promotions was a bona fide seniority system protected by section 703(h) of Title VII, 42 U.S.C. Sec. 2000e-2(h) (1982). ... Although, again, we might have weighed the evidence differently, we are unable to find that the district court's validation of the seniority system was clearly erroneous.

Section 2000e-2(h) protects a bona fide seniority system that was not created or maintained with discriminatory intent.

Larkin v. Pullman-Standard Division, Pullman, Inc. · filed 1988-09-21(h)

The plaintiffs appeal from the district court’s decision that the nontransferable seniority system under which Pullman and USW operated in awarding promotions was a bona fide seniority system protected by section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1982). ... The district court did not err in finding that the seniority system was not created or maintained with discriminatory intent or in finding that any discrimination in departmental assignments ended by February 1969.

Section 2000e-2(h) protects a bona fide seniority system that gives active employees priority over laid-off employees when the system was not adopted with discriminatory intent.

Altman v. AT & T Technologies · filed 1989-03-01(h)

We conclude that California Brewers dictates that the combination of length of service considerations and ancillary rules found in Article 27 of the collective bargaining agreement qualifies as a bona fide seniority system. Because AT & T acted pursuant to a bona fide seniority system, its decision concerning the individuals who would fill the vacant positions is not subject to attack under Title VII.

Section 2000e-2(h) protects a bona fide seniority system that gives active employees priority over laid-off employees, absent an intent to discriminate.

Altman v. AT & T Technologies, Inc. · filed 1989-03-01(h)

The subordination of the rights of laid-off employees to those of still active employees is a legitimate feature of a bona fide seniority system.

Section 2000e-2(h) requires proof of discriminatory intent to challenge a seniority system; disparate impact alone is insufficient.

Lorance v. At&t Technologies, Inc. · filed 1989-06-12(h)

But such an interpretation of § 703(h) is foreclosed by our cases, which treat the proof of discriminatory intent as a necessary element of Title VII actions challenging seniority systems.

Section 2000e-2(h) protects a bona fide seniority system applied equally across racial groups from a disparate impact challenge.

Crump v. Dulmison, Inc. · filed 1989-06-13(h)

Therefore, based upon section 703(h) and International Brotherhood of Teamsters, this court determines that plaintiff is unable to pursue his attack upon the seniority system under a disparate impact analysis.

Under § 2000e-2(h), whether a seniority system reflects discriminatory intent is a factual question reviewed for clear error.

Harvey v. United Transportation Union · filed 1989-06-16(h)

Whether a seniority system reflects an illegal intent to discriminate is a “pure question of fact” that we review under the clearly erroneous standard of Fed.R.Civ.P. 52(a).

Section 2000e-2(h) requires proof of intentional discrimination to challenge a seniority system.

Ross v. Buckeye Cellulose Corp. · filed 1989-08-11(h)

In order to maintain an action contesting a seniority system, a plaintiff must show intentional discrimination, which would naturally require reference to specific acts and events in time.

Section 2000e-2(h) protects a bona fide seniority system only if it lacks purposeful discrimination.

Harvey v. United Transportation Union · filed 1989-09-14(h)

We reverse and remand the district court's determination that the seniority system in issue was bona fide because we conclude the court made legal errors both in its application of the Stockham Valves factors and in its failure to consider relevant evidence. The key element of a bona fide seniority system under Sec. 703(h) is its lack of purposeful discrimination.

A facially neutral seniority system remains bona fide under § 2000e-2(h) when a challenged change was adopted without a discriminatory purpose.

Wesley P. Bernard, Elton Hayes, Rodney Tizeno, Nence Brown, Doris Whitley and Willie Johnson v. Gulf Oil Corp. · filed 1989-12-18(h)

The record supports the district court’s determination, and it is not clearly erroneous that Stipulation 29 was not adopted for purposefully discriminatory reasons.

Section 2000e-2(h) protects bona fide seniority systems from challenges based solely on their discriminatory effects, including claims brought under §§ 1981 and 1983.

N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n · filed 1990-04-09(h)

Absent a finding of intentional discrimination under the proviso to § 703(h), we may not reverse or enjoin the operation of a bona fide seniority plan that Congress intended to validate and protect when it passed § 703(h).

Section 2000e-2(h) permits an employer to assign shifts under a bona fide seniority system when the assignments are free of discriminatory intent.

Equal Employment Opportunity Commission v. Arlington Transit Mix Inc. · filed 1990-04-12(h)

Moreover, Arlington’s seniority system as implemented by Belcher is a bona fide seniority system devoid of any discriminatory intent, and was initially required by the employment of union as well as non-union represented mechanics and mechanic-drivers, together.

Section 2000e-2(h) protects bona fide seniority systems against challenges under §§ 1981 and 1983 as well as Title VII.

NAACP, Detroit Branch v. Detroit Police Officers Ass'n · filed 1990-06-18(h)

Although plaintiffs contend that the protections granted to bona fide seniority systems under Sec. 703(h) apply only to claims brought under Title VII, we decline to read Congress's earlier, more general pronouncements in Secs. 1981 and 1983 from the Civil Rights Act of 1870 to undermine the force of its later specific declarations of civil rights policy regarding bona fide seniority plans in Sec. 703(h) of the Civil Rights Act of 1964.

Section 2000e-2(h) permits bona fide seniority systems, but reenacting a provision for discriminatory reasons can be discriminatory even when its terms do not change.

Chambers v. Parco Foods, Incorporated · filed 1991-06-20(h)

The implication is that if the parties have discriminatory reasons for reenacting seniority provisions, even when they do not change the system, the reenactment can be considered discriminatory for purposes of Sec. 703(h).

Section 2000e-2(h) requires proof of intentional discrimination to invalidate a seniority system; disparate impact alone is insufficient.

Banas v. American Airlines · filed 1992-07-29(h)

42 U.S.C. § 2000e-2(h). Because of this provision, disparate impact cannot be used to invalidate a seniority system; intentional discrimination must be shown.

A seniority system is not bona fide under § 2000e-2(h) if it is motivated by discriminatory intent.

Ruth v. American Airlines · filed 1992-09-29(h)

Plaintiffs also claim that American's seniority system is not bona fide under 42 U.S.C. § 2000e-2(h). But, like the seniority system in Lorance, American's system is facially neutral. To say that a seniority system is not bona fide is equivalent to saying that it is motivated by discriminatory intent.

Section 2000e-2(h) protects a facially neutral retirement system that awards increased benefits based on time served in employment.

Shelford v. New York State Teachers Retirement System · filed 1993-09-28(h)

Moreover, NYSTRS and its applicable break-in-service rules are deserving of the special protection afforded under Title VII because they are facially neutral.

Section 2000e-2(h) protects the routine operation of a bona fide, facially neutral seniority system even if it has an adverse impact on minorities or women.

Williams v. Mead Coated Board, Inc. · filed 1993-10-21(h)

As a result of § 703(h), the routine operation of a bona fide, facially neutral seniority system is not a violation of Title VII, even if the system has an adverse impact on minorities or women.

Section 2000e-2(h)'s seniority-system defense does not cover a name-request system that gives all qualified workers equal eligibility regardless of their length of service.

Rosser v. Pipe Fitters Local 392, Robert Sullivan · filed 1993-12-02(h)

Under Sec. 703(h), absent an intention to discriminate, practices which have a disparate impact may be imposed pursuant to a bona fide seniority or merit system. We disagree with the district court's finding that the name-request system was a bona fide seniority system under Sec. 703(h) of Title VII. ... We find, therefore, that the name-request provision was not a seniority system.

Section 2000e-2(h) protects bona fide seniority systems even when strict seniority disadvantages recently hired minority workers.

Lee v. Visiting Nurse Association of Los Angeles, Inc. Yvette Luque · filed 1994-10-20(h)

Title VII, 42 U.S.C. Sec. 2000e-2(h), protects worker's seniority rights notwithstanding that minority workers will often be hired most recently and hence may be disadvantaged by strict adherence to seniority in determining layoffs and rehires. ... Not only is the VNA's decision to reduce untenured social workers to contract status a bona fide seniority system, but it also did not have any significant discriminatory impact.

Section 2000e-2(h) permits a bona fide seniority system even if it adversely affects employees in a protected group.

Featherstone v. United Parcel Services, Incorporated · filed 1995-05-23(h)

Because Featherstone offers no evidence suggesting that the UPS seniority system is not bona fide, his claim on this issue lacks merit, even assuming the bid system has an adverse impact on African-American employees.

Section 2000e-2(h) protects a bona fide seniority system from a disparate impact challenge absent evidence that it was adopted with discriminatory intent.

Sanchez v. City of Santa Ana · filed 1995-11-22(h)

Again, the Court believes that the City presented evidence that the policies challenged constituted bona fide seniority systems outside the purview of Title VII.

Section 2000e-2(h) permits a bona fide seniority system despite disparate effects unless it was adopted with discriminatory intent.

Volberg v. Pataki · filed 1996-02-28(h)

Therefore, unless a seniority system was adopted with the intent to discriminate, its use cannot be an unlawful employment practice under Title VII’s disparate impact theory even if it has some discriminatory consequences.

Section 2000e-2(h) requires a plaintiff challenging an employment practice based on a bona fide seniority system to prove discriminatory intent; disparate impact alone is insufficient.

Dodd v. Runyon · filed 1997-05-23(h)

The effect of § 703(h) is that a plaintiff challenging an employment practice based upon a bona fide seniority system must prove discriminatory intent; proof of a disparate impact is insufficient.

Section 2000e-2(h) protects the routine application of a bona fide seniority system under Title VII.

Szarka v. Reynolds Metals Co. · filed 1998-08-26(h)

The CBA’s reduction in force procedures are in accordance with a bona fide seniority system specifically protected by 42 U.S.C.A. § 2000e-2(h).

Section 2000e-2(h) exempts employment practices pursuant to a bona fide seniority or merit system from Title VII coverage.

Andreucci v. City of New Haven · filed 1999-03-29(h)

The promotional process for New Haven firefighters has been rigorously tested by virtue of the state litigation and clearly meets the bona fide seniority or merit system exemption from Title VII coverage.

Section 2000e-2(h) protects a bona fide seniority system from liability for discriminatory effects unless the differences result from intentional discrimination.

Ameritech Benefit v. Communications Work · filed 2000-07-13(h)

The statute itself offers good reason to treat seniority systems with special care, because it specifically exempts discriminatory effects that flow from bona fide seniority systems from the definition of unlawful employment practices, as long as the differences are not the result of an intention to discriminate.

Section 2000e-2(h) permits different employment terms under a bona fide seniority system; a system adopted or operated with discriminatory intent is not bona fide.

Casillas v. Federal Express Corp. · filed 2001-05-02(h)

Both Title VII and ADEA permit employers to maintain seniority systems that provide for different standards of compensation, terms, conditions or privileges, as long as the system is bona fide. 42 U.S .C. § 2000e-2(h); 29 U.S.C. § 623(f)(2)(A). A seniority system is bona fide if it was not adopted or is not operated with discriminatory intent.

Section 2000e-2(h) permits different compensation under a bona-fide seniority system when the differences do not result from intentional discrimination.

Prieto v. City of Miami Beach · filed 2002-02-14(h)

On this record, I find, as a matter of law, that the City’s two-tier wage and pension system was a bona-fide seniority system under § 2000e-2(h).

Section 2000e-2(h) allows a bona fide seniority system to operate neutrally even if it has discriminatory consequences.

Cosme v. William J. Henderson, in His Capacity as United States Postmaster General · filed 2002-03-29(h)

It is well established that the neutral operation of a bona fide seniority system, even if it has “some discriminatory consequences,” does not violate the proscription against religious discrimination in employment.

Section 2000e-2(h) protects a bona fide seniority system, but a plaintiff may challenge one adopted for a discriminatory purpose or administered irregularly with intent to harm a protected class.

Zambetti v. Cuyahoga Community College and Clayton Harris · filed 2002-12-19(h)

To show that the seniority system is not bona fide, plaintiff can show either that (1) “the seniority system was adopted or negotiated with a discriminatory motivation or purpose,” or (2) “the seniority system was administered in an irregular or arbitrary way with intent to harm members of a protected class.”

Section 703(h) permits an employer to apply different employment terms under a bona fide seniority system when the differences do not result from an intention to discriminate because of race.

California Brewers Assn. v. Bryant · filed 1980-04-14(h)

To this rule, § 703 (h) of the Act, 42 U. S. C. § 2000e-2 (h), provides an exception: "[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system,. . . provided that such differences are not the result of an intention to discriminate because of race. . . ."

Section 2000e-2(h) protects the routine operation of a bona fide seniority system when there is no showing of intentional discrimination; disparate impact alone does not defeat that protection.

Douglass v. United Auto Workers, Local 31 · filed 2005-03-31(h)

Accordingly, because plaintiff has failed to show that GM and UAW’s seniority system resulted in the disparate treatment of African-American females over the age of forty, plaintiffs discrimination claims are precluded by 29 U.S.C. § 623(f) and 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) protects a bona fide seniority system from a discrimination challenge absent evidence of intentional disparate treatment.

Douglass v. General Motors Corp. · filed 2005-03-31(h)

Therefore, because plaintiff has failed to show that GM’s seniority system resulted in disparate treatment of African-American females over the age of forty, plaintiffs discrimination claims are precluded by 29 U.S.C. § 623(f) and 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) permits different compensation standards under a bona fide seniority or merit system; an employer’s reliance on that provision depends on how its system operates in practice.

Siri v. Princeton Club · filed 2009-02-24(h)

Pursuant to 42 USC § 2000e-2 (h), it is not unlawful for an employer to apply different standards of compensation on the basis of a bona fide seniority or merit system (see American Tobacco Co. v Patterson, 456 US 63, 65 [1982]). Plaintiffs’ opposition challenges defendant’s claim that its system of assigning waiters to banquet functions operates strictly on a seniority basis. Plaintiffs have raised questions as to whether defendant is actually adhering to a seniority system, and accordingly, in the absence of any disclosure as to exactly how defendant’s seniority rules operate in practice, it was premature to grant defendant’s first motion.

Section 2000e-2(h) protects bona fide seniority systems even when they were not created under a collective bargaining agreement, so an employer need not violate such a system to accommodate an employee’s religious beliefs.

Harrell v. Donahue · filed 2011-03-31(h)

But nothing in the language of section 703(h) limits its application to only those “bona fide seniority or merit system[s]” that are created pursuant to a collective bargaining agreement. Therefore, the USPS was not required to violate the Warrensburg Post Office’s seniority system to accommodate Harrell.

Section 2000e-2(h) does not prevent an employer from agreeing to modify a seniority system to reduce its adverse impact on minority workers.

Tangren v. Wackenhut Services, Inc. · filed 1981-10-05(h)

The court did not, however, prohibit the employer from agreeing of his own accord to modify the seniority system.

Section 2000e-2(h) permits a bona fide seniority system unless those who negotiated or maintained it intended to discriminate on a prohibited ground.

(PS) Tapia v. The Boeing Company · filed 2021-03-12(h)

These allegations fail to plausibly allege that defendant maintained an unlawful seniority system through an intent to discriminate. The complaint fails to state a valid claim for an unlawful seniority system under Title VII.

Section 2000e-2(l) applies to employment-related tests used in connection with selecting or referring candidates for employment or promotion.

Douglas v. University of Chicago · filed 2015-11-12(l)

But this statutory provision applies only “in connection with the selection or referral of applicants or candidates for employment or promotion.” 42 U.S.C. § 2000e-2(Z). Douglas concedes that he never applied for employment at the university and did not ask for a referral elsewhere.

Section 2000e-2(k) requires a showing that a selection test or qualification excludes applicants in a protected group before the employer must justify it as job related and consistent with business necessity.

Grauer v. Federal Express Corporation · filed 1996-01-05(k)

Under Title VII, when an employer has instituted an employment test or qualification with an exclusionary effect on applicants of a protected status, such requirements must be job related for the position in question and consistent with business necessity. 42 U.S.C. Sec. 2000e-2(k). Grauer has not made any showing, however, that the criteria had an exclusionary effect on women.

Section 2000e-2(h) does not require an employer to prove that an ability test is job-related unless the plaintiffs first show that the test disparately affects selection for hire or promotion.

Carroll v. Sears, Roebuck & Co. · filed 1981-04-20(h)

In the absence of any showing that Sears’ employment tests disparately affect black applicants for hire or promotion, and indeed in the absence of any evidence that the tests “select” any applicants at all, the burden never shifted to Sears to prove job-relatedness.

Section 2000e-2(h) permits valid employment tests and different compensation or employment terms under a bona fide merit system.

27 Fair empl.prac.cas. 33, 25 Empl. Prac. Dec. P 31,767 · filed 1981-04-20(h)

Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1976), not only permits valid tests but also specifically permits employers to apply different standards of compensation and other terms of employment pursuant to bona fide merit systems.

Section 2000e-2(h) does not require an employer’s ability test to comply literally with EEOC guidelines or professional testing criteria.

Guardians Association of New York City Police Department v. Civil Service Commission of New York · filed 1980-07-31(h)

As discussed in part III of this opinion, we have concluded that literal compliance with the Guidelines and with professional testing criteria is not required by Title VII and can, in some instances, lead to results inconsistent with Title VII's explicit endorsement of "any professionally developed ability test." 42 U.S.C. § 2000e-2(h).

Section 2000e-2(h) covers selection criteria such as diploma requirements, arrest inquiries, and scored interviews, which an employer must justify when they disproportionately exclude minority applicants.

Reynolds v. Sheet Metal Workers Local 102 · filed 1980-04-08(h)

The high school requirement, arrest inquiry, and scored interview at issue qualify as the type of selection criteria identified in Griggs and by the E.E.O.C.

Section 2000e-2(h) permits employment tests only when they are related to the job.

Griggs v. Duke Power Co. · filed 1971-03-08(h)

From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC's construction of § 703 (h) to require that employment tests be job related comports with congressional intent.

An applicant seeking preliminary relief against an employment test must show evidence that it disproportionately excludes protected applicants; the test’s apparent relevance to the job also weighs against relief.

Rios v. Enterprise Ass'n Steamfitters Loc. U. No. 638 of UA · filed 1971-03-24(h)

The evident relevance of mechanical comprehension to the work in question, the buttressing of this point by a witness for plaintiffs, and the sponsorship of the examination all indicate that it is fairly and aptly designed for a legitimate purpose.

Section 2000e-2(h) does not permit an employment test used in promotion decisions when the employer has not shown that it reasonably measures job performance.

United States v. Jacksonville Terminal Co. · filed 1971-08-31(h)

The test’s use violates section 703(h) of the Act, 42 U.S.C.A. § 2000e-2(h). We hold that the District Court erred in upholding the validity of the personnel test and in refusing to enjoin its use, as well as in failing to order remedial action alleviating the present effects of its past influence.

Section 2000e-2(h) bars the use of an employment test as a controlling factor unless it demonstrably measures job performance.

United States v. Jacksonville Terminal Co. · filed 1971-11-18(h)

The test's use violates section 703(h) of the Act, 42 U.S.C.A. Sec. 2000e-2(h). We hold that the District Court erred in upholding the validity of the personnel test and in refusing to enjoin its use, as well as in failing to order remedial action alleviating the present effects of its past influence.

Section 2000e-2(h) permits an employer to validate tests for admission to an apprenticeship program against performance in that program rather than in the craft jobs it leads to.

Buckner v. Goodyear Tire and Rubber Company · filed 1972-03-07(h)

Notwithstanding this objective, the court has concluded that the tests need not be validated as against job performance in the craft job itself, but only as against performance in the four-year apprenticeship “job.”

Section 2000e-2 forbids educational transfer requirements that perpetuate the effects of racial segregation in job assignments.

Johnson v. Goodyear Tire & Rubber Company · filed 1972-08-10(a)

In accord with Part IV(A)(2) of this opinion, permanent injunctive relief is also granted to plaintiff and the class he represents in order to preclude reinstitution of the educational requirement by Goodyear as a condition for transfer to positions where black employees were previously discriminated against as a result of being segregated into the labor department.

Section 2000e-2(h) permits an employment test with a discriminatory impact only if the employer establishes that it is job related; a concurrent validation study requires job analysis and specific, objective criteria for supervisory ratings.

Moody v. Albemarle Paper Co. · filed 1973-02-20(h)

We agree that some form of job analysis resulting in specific and objective criteria for supervisory ratings is crucial to a proper concurrent validation study. ... Thus we hold that the district court erred in upholding the validity of the pre-employment personnel tests and in refusing to enjoin their use.

Section 2000e-2(h) requires employers validating employment tests to follow EEOC guidelines unless they show a cogent reason for noncompliance.

5 Fair empl.prac.cas. 587, 5 Empl. Prac. Dec. P 8460 United States of America v. Georgia Power Company, Charles King v. · filed 1973-03-16(h)

Nevertheless, these guidelines undeniably provide a valid framework for determining whether a validation study manifests that a particular test predicts reasonable job suitability. Their guidance value is such that we hold they should be followed absent a showing that some cogent reason exists for noncompliance.

Section 2000e-2(h) permits employment tests only if they are professionally developed and are not designed, intended, or used to discriminate.

United States v. N. L. Industries, Inc. · filed 1973-03-28(h)

These tests do not constitute an acceptable employment test under Title VII of the Act. ... The Company has failed to offer any evidence that the above-mentioned homemade tests were “professionally developed ability test[s].”

Section 2000e-2(h) does not protect an employment test that disproportionately reduces minority employment when the employer fails to validate its relationship to job performance.

Brito v. Zia Co. · filed 1973-05-18(h)

Zia's test was invalid and resulted in a discriminatory employment practice. ... The Zia Company failed to validate the test according to the EEOC guidelines because it failed to introduce evidence of the validity of its employee performance evaluation test consisting of empirical data demonstrating that the test was significantly correlated with important elements of work behavior relevant to the jobs for which the appellants were being evaluated.

Employment tests that disproportionately exclude minority workers violate Title VII when the employer fails to validate their job relevance.

Brito v. Zia Co. · filed 1973-05-18(h)

Title VII prohibits informal testing procedures which might discriminate against minority groups. Discrimination can be shown to exist “when there are differential rates of applicant rejection from various minority and nonmi-nority or sex groups for the same job or group of jobs . . . ” 29 CFR 1607.13. The appellants have shown that the informal testing procedures resulted in higher rates of reduction in force of minority groups.

Section 2000e-2(h) permits the use of professionally developed ability tests only when the tests, their administration, and the use of their results do not discriminate.

5 Fair empl.prac.cas. 823, 6 Fair empl.prac.cas. 116, 5 Empl. Prac. Dec. P 8529, 5 Empl. Prac. Dec. P 8628 · filed 1973-05-21(h)

These tests do not constitute an acceptable employment test under Title VII of the Act. The Act specifically permits the use of a test under certain circumstances. It states that it is not an unlawful employment practice for an employer "to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin." 42 U. S.C. Sec. 2000e-2(h) (emphasis added). The Company has failed to offer any evidence that the above-mentioned homemade tests were "professionally developed ability test[s]."

An employer need not justify an employment test under subsection (h) unless the employee first shows that the test produced a discriminatory result.

Woods v. North American Rockwell Corp. · filed 1973-06-25(h)

Therefore the company was not called on to show that the test fulfilled a genuine business need and was permissible under Sec. 703(h) of the Act, 42 U.S.C.A. Sec. 2000e-2(h).

Section 2000e-2(a) prohibits an educational hiring requirement with a discriminatory effect unless it is job related or a business necessity.

Roman v. Reynolds Metals Co. · filed 1973-04-07(a)

The law makes it impermissible to impose such an educational requirement unless it is job related or a bona fide business necessity; and it is not sufficient, as the Defendant company contends, merely to maintain a high quality of personnel or to ease advancement.

Section 2000e-2(h) permits valid employment tests, but their use may violate Title VII if it perpetuates racial discrimination.

6 Fair empl.prac.cas. 1141, 6 Empl. Prac. Dec. P 9035 Robert Sims v. Sheet Metal Workers International Association, Loca · filed 1973-12-19(h)

However, it is not enough that the tests be fair on their face and be validated as proper measurements of job-related skills. The Equal Employment Opportunity Act of 1964 is concerned with the consequences of employment practices and a test which is designed and intended as a neutral measure of job-related skills and knowledge may violate the Act if its actual use furthers racial discrimination. ... An examination of the record in this case compels the conclusion that Local 65 has established practices which employ tests that are fair in form, but discriminatory in effect because, as administered, they have failed to remove the vestiges of past discrimination.

Section 703(h) permits fairly conducted tests to assess job qualifications.

8 Fair empl.prac.cas. 44, 7 Empl. Prac. Dec. P 9403 John Patmon v. Van Dorn Company, Plastic MacHinery Division, a Corpo · filed 1974-05-31(h)

Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 sanctions fairly conducted tests.

Section 2000e-2(a) prohibits denying promotion because of race through a test unrelated to the job.

Johnie YOUNG, Appellant, v. EDGCOMB STEEL COMPANY, a Corporation, Appellee · filed 1974-07-11(a)

His employer discriminatorily refused him promotion because he failed a test which the district court properly found was not related to the position he sought.

Section 2000e-2(a)(1) reaches promotion policies that discriminate directly or carry forward the effects of past discrimination, even when they appear neutral.

Robert GILMORE, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellee · filed 1975-01-24(a)(1)

It is then open to the plaintiffs to demonstrate a violation of Title VII on either of two independent bases: that the employment policies reflect present discriminatory conduct or that current policies, though neutral on their face, carry forward vestiges of past discrimination. This represents the traditional dual focus in civil rights litigation upon purpose, as well as effect. Discrimination resulting from either commands relief.

Section 2000e-2(h) permits the use of job-related aptitude tests and does not allow an agency guideline to bar their use mechanically.

James v. STOCKHAM VALVES AND FITTINGS COMPANY · filed 1975-03-19(h)

The Court rejects the mechanical application of the Equal Employment Opportunity Commission’s Disparate Treatment Guideline, 29 C.F.R. § 1697.11, since that guideline is inconsistent with the plain language of the statute permitting utilization of job-related aptitude tests.

Section 2000e-2(h) permits professionally developed ability tests for employment or advancement if they are not administered or used to discriminate.

Privette v. UNION CARBIDE CORP., CONSUMER PROD. DIV. · filed 1975-04-28(h)

Title VII of the Civil Rights Act of 1964 specifically authorizes employers to use professionally developed ability tests to determine qualifications for employment or advancement provided their administration and the action taken on their results are not designed, intended or used to discriminate in employment because of race, color, religion, sex or national origin, 42 U.S.C. § 2000e-2(h).

Section 2000e-2 permits an employment test that does not have a disproportionate racial effect.

Smith v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY · filed 1975-06-30(h)

This Circuit has established that an employment test which does not have a disproportionate racial effect is lawful.

An employer cannot establish that an employment test is job related through vague and unsubstantiated hearsay about its validation.

Albemarle Paper Co. v. Moody · filed 1975-06-25(h)

While the Company contends that the Bennett and Beta Tests were "locally validated" when they were introduced, no record of this validation was made. Plant officials could recall only the barest outlines of the alleged validation. Job relatedness cannot be proved through vague and unsubstantiated hearsay.

Section 2000e-2(h)’s provision for professionally developed ability tests is not unconstitutionally vague because EEOC guidelines provide detailed validation standards.

United States v. City of Milwaukee · filed 1975-06-25(h)

Although this court recognizes that the Guidelines themselves are very difficult to understand and apply as well as being highly technical, the difficulty and technicality of the Guidelines does not render them so vague as to constitute a denial of due process under the law.

Section 2000e-2(h) permits employment tests unless they disproportionately disqualify Black applicants and are not job related.

Thompson v. Sun Oil Company · filed 1975-10-03(h)

The validity of employment tests under the Civil Rights Act is governed by 42 U.S.C. § 2000e-2(h). That section does not prohibit their use. Title VII prohibits only tests which operate to disqualify a substantially higher percentage of blacks than whites and which are not job related.

Section 2000e-2(h) places the burdens of production and persuasion on an employer to prove that an employment test with a discriminatory racial effect is job related.

United States v. City of Chicago · filed 1976-02-02(h)

Thus it is clear that it is the Act which imposes the burden of proof of job relatedness of the employer. And this Circuit, as well as others, has held that burden of proof to include “the burden of going forward and the burden of persuasion.”

Section 2000e-2(h) requires apprenticeship admissions to follow the results of valid, job-related tests, even when a racial admission ratio would produce different results.

Equal Employment Opportunity Commission v. Local 638 · filed 1976-03-08(h)

We accordingly modify the order insofar as it might be interpreted to permit white-minority ratios for the apprenticeship program after the adoption of valid, job-related entrance tests. Acceptance into the training program must be based on tests results alone.

Section 2000e-2(h) permits professionally developed ability tests that are not designed, intended, or used to discriminate based on race, color, sex, or national origin.

Equal Employment Opportunity Commission v. Datapoint Corp. · filed 1976-04-16(h)

No employment tests utilized by Datapoint, including but not limited to the test technician test, the typing test and the Purdue Pegboard test were designed, intended or used by Defendant to discriminate on the basis of race, color, sex or national origin. Further, each of Defendant’s tests were “professionally developed” ability tests within the meaning of Section 703(h) of Title VII (42 U.S.C., Sec. 2000e-2(h)).

Section 2000e-2(h) prohibits using tests invalidated for job relatedness to select supervisors.

Abron v. Black & Decker Manufacturing Co. · filed 1977-10-11(h)

The use of such invalidated tests is in clear violation of Title VII, 42 U.S.C. § 2000e-2(h) as interpreted by the Supreme Court in Griggs, supra, and recently in Albemarle Paper Co. v. Moody, supra.

Section 2000e-2(h) permits ability tests that are not designed or used to discriminate and are demonstrably related to job performance.

Hardy v. Stumpf · filed 1978-04-13(h)

An employer may rely on ability tests to determine competency of applicants providing the tests are not designed or used to discriminate (42 U.S.C. § 2000e-2(h)), and are demonstrably related to job performance.

Section 2000e-2(h) protects a merit system that uses employment tests only if the tests meet the same standard as protected ability tests; plaintiffs need not prove discriminatory intent.

Dickerson v. United States Steel Corp. · filed 1978-08-02(h)

The Court holds that the standard for finding that a “merit system” is not bona fide and thus not protected by § 703(h) is the same as finding that a test is not protected by that section’s testing language under Griggs.

Section 2000e-2(h) requires an employer to establish the job-relatedness of a promotional exam and its use when they have an adverse racial impact.

Allen v. City of Mobile · filed 1978-09-29(h)

In summary, the failure of the defendants’ content validity study to address the range of issues necessary for a true and proper validation analysis under the Uniform Guidelines implies that they have not met the heavy burden incumbent upon them to establish the job-relatedness of their challenged promotional procedures. ... Consequently, the 1976 sergeants examination attacked here violated Title VII and the plaintiffs are entitled to a remedy.

Section 2000e-2(h) permits professionally developed ability tests but does not shield testing materials from an employer’s duty to disclose relevant information to a union.

Detroit Edison Co. v. National Labor Relations Board · filed 1979-03-05(h)

Section 703 (h) permits an employer to "give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex or national origin." ... Contrary to the Company's assertion, these provisions, although they do recognize the relationship between test security and test validity, do not insulate testing materials from the employer's duty under the Act to disclose relevant information.

Section 2000e-2(a) prohibits hiring and promotion exams that adversely affect minority applicants when their job-relatedness has not been established.

Officers for Justice v. Civil Service Commission · filed 1979-04-16(a)

Written examinations for the selection of patrol officers and for promotions to sergeant that were administered from 1969 to 1972 displayed a substantial adverse statistical impact on minorities who took them. The job-relatedness of these exams was not established, and their use constitutes a violation of section 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a).

Section 2000e-2(h) does not permit an employer to rank applicants by test scores without support for an inference that higher scores predict better job performance.

Berkman v. City of New York · filed 1982-03-04(h)

Based on the evidence introduced at the hearing, I conclude that here, as in Guardians IV, supra, 630 F.2d at 101, “the defects ... in the job analysis and the test construction are substantial enough to preclude an inference that passing scores will correlate with job performance closely enough to justify rank-ordered selections” of the type which resulted from Exam 3040.

Section 2000e-2(h)'s merit system exemption protects examinations only if they are job related.

Walls v. Mississippi State Department of Public Welfare · filed 1982-05-18(h)

We therefore conclude that the merit system exemption does not insulate examinations unless they are found to be job related.

Section 2000e-2(h) does not require a court to decide whether an employment test is job-related before approving a Title VII settlement; the defendant must first raise job-relatedness.

Kirkland v. New York State Department of Correctional Services · filed 1983-06-08(h)

Intervenors' argument, however, would turn Title VII law on its head since, as intervenors themselves concede, job-relatedness is never presumed and only becomes an issue after it is affirmatively raised by the defendant. ... Moreover, if intervenors' position were adopted, no Title VII testing case could be settled by agreement until a judicial determination on the test's job-validity was made. Such a result would seriously undermine Title VII's preference for voluntary compliance and is not warranted.

When a hiring test has a disparate impact, the employer must prove through professionally acceptable methods that it is related to the job.

Hershel CLADY, Et Al., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES, Defendant-Appellee · filed 1985-11-13(h)

Once plaintiffs have established a prima facie case of disparate impact for both blacks and Hispanics taking the written exam, the burden shifts to the County to prove the exam’s job-relatedness.

Section 2000e-2(h) does not prevent an employer from voluntarily changing an ability test.

Wilmington Firefighters Local 1590 v. City of Wilmington · filed 1986-04-04(h)

However, nothing in Section 703(h) forbids an employer, such as the City, from voluntarily altering an ability test.

Section 2000e-2(h) permits an ability test that reflects actual job tasks and correlates with job performance even if it does not measure every relevant ability.

Zamlen v. City of Cleveland · filed 1990-06-11(h)

Because the examination did parallel the actual tasks which firefighters perform on the job, and the city did demonstrate a direct correlation between higher test scores and better job performance, the examination withstands plaintiffs’ challenge.

A simulated job test does not become invalid merely because it omits a measure of stamina, even if including one might make the test more effective.

Zamlen v. City of Cleveland · filed 1990-07-30(h)

Accordingly, although a simulated firefighting examination that does not test for stamina in addition to anaerobic capacity may be a less effective barometer of firefighting abilities than one that does include an aerobic component, the deficiencies of this examination are not of the magnitude to render it defective, and vulnerable to a Title VII challenge.

Section 2000e-2 covers an examination required for public school employment even if the state calls it a licensing examination.

Association of Mexican-American Educators ("AMAE") v. California · filed 1993-08-25(a)(1)

Because the CBEST is a requirement only for those individuals who wish to teach in the State’s public schools, however, defendants cannot avoid liability on the ground that the CBEST is a licensing examination.

Section 2000e-2(h) permits employers to use professionally developed ability tests if the tests are not designed to discriminate based on race, color, or national origin.

National Ass'n for the Advancement of Colored People, Inc. v. Town of East Haven · filed 1995-10-20(h)

Title VII permits employers to “act upon the results of any professionally developed ability test,” provided that the test is not designed to discriminate on the basis of, inter alia, race, color or national origin.

Section 2000e-2(h) permits employers to use professionally developed ability tests if the tests are not designed to discriminate.

Naacp v. Town Of East Haven · filed 1995-10-20(h)

Title VII permits employers to "act upon the results of any professionally developed ability test," provided that the test is not designed to discriminate on the basis of, inter alia, race, color or national origin.