Lorance v. AT&T Technologies Inc/Dissent Marshall
Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.
The majority holds today that, when it is alleged that an employer and a union have negotiated and adopted a new seniority system with the intention of discriminating against women in violation of Title VII, 42 U.S.C. § 2000e et seq., the limitations period set forth in § 706(e), § 2000e-5(e), begins to run immediately upon the adoption of that system. Ante, at 909-911. This is so even if the employee who subsequently challenges that system could not reasonably have expecte to be demoted or otherwise concretely harmed by the new system at the time of its adoption, and, indeed, even if the employee was not working in the affected division of the company at the time of the system's adoption. This severe interpretation of § 706(e) will come as a surprise to Congress, whose goals in enacting Title VII surely never included conferring absolute immunity on discriminatorily adopted seniority systems that survive their first 300 days.  Because the harsh reality of today's decision, requiring employees to sue anticipatorily or forever hold their peace, is so glaringly at odds with the purposes of Title VII, and because it is compelled neither by the text of the statute nor our precedents interpreting it, I respectfully dissent.
The facts of this case illustrate the austere practical consequences of the majority's holding. On the day AT & T's seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system. Indeed, under the new system, after five years a woman tester would regain her plantwide seniority; only in the intervening five years was she potentially endangered. Patricia Lorance, who was already a tester when the new system was adopted, almost made it; only after four years as a tester was she demoted under the terms of the new system. That the new system would concretely harm petitioners Janice King and Carol Bueschen was even more speculative. They became testers several months after the seniority system was modified, and like Lorance, they were not adversely affected by the restructured seniority system until 1982. (Indeed, absent the nationwide recession in the early 1980's, the petitioners might never have been affected.) Today, however, the majority concludes that these women are barred from bringing this suit because they failed to anticipate, within 300 days of the new system's adoption, that these contingencies would one day place them among the new system's casualties.
Nothing in the text of Title VII compels this result. On the contrary, even the majority concedes that a plausible reading of Title VII would regard the employer as having violated § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), the disparate treatment wing of the statute, not only at the time of the system's adoption, but also when each concrete effect of that system is felt. Ante, at 906; see also 827 F.2d 163, 166 (CA7 1987) (describing this interpretation as "logically appealing"). Under this continuing violation theory, each time a discriminatory seniority system is applied, like each time a discriminatory salary structure is applied, an independent "unlawful employment practice" under § 703(a)(1) takes place, triggering the limitations period anew. See Bazemore v. Friday, 478 U.S. 385, 395-396, 106 S.Ct. 3000, 3006-3007, 92 L.Ed.2d 315 (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII"); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 380, 102 S.Ct. 1114, 1125, 71 L.Ed.2d 214 (1982) ("Where the challenged violation is a continuing one, the staleness concern disappears"). Viewing each application of a discriminatory system as a new violation serves the equal opportunity goals of Title VII by ensuring that victims of discrimination are not prevented from having their day in court.
Today's decision is the latest example of how this Court, flouting the intent of Congress, has gradually diminished the application of Title VII to seniority systems. First, the Court held that § 703(h), 42 U.S.C. § 2000e-2(h), requires special treatment for bona fide seniority systems under Title VII so that "absent a discriminatory purpose, the peration of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82, 97 S.Ct. 2264, 2275-76, 53 L.Ed.2d 113 (1977); see also Pullman-Standard v. Swint, 456 U.S. 273, 289, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982).  Then, the Court held by a narrow margin that § 703(h) protects even those seniority systems put into place after the passage of Title VII. American Tobacco Co v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538-39, 71 L.Ed.2d 748 (1982).
The majority contends that the result it reaches today is dictated by these and other ill-advised precedents involving seniority systems, but in my view, today's decision compounds the Court's prior decisional errors by giving them unnecessarily broad scope. This extension is particularly inappropriate because it forces the Court to reach such a bizarre and impractical result. Never have we held or even intimated that, in the context of a statute of limitations inquiry, one must evaluate challenges to a seniority system born of discriminatory intent as of the moment of its adoption. Indeed, had we so held, the majority's concession that a worker may at any time challenge a facially discriminatory seniority plan under § 703(a)(1) would be flatly contradicted by precedent. Ante, at 912. The discriminatory intent that goes into the creation of even a facially flawed seniority plan is, after all, no different than the discriminatory intent that informs the creation of a facially neutral one. To impute ongoing intent in the former situation but not in the latter is untenable. The distinction the majority erects today serves only to reward those employers ingenious enough to cloak their acts of discrimination in a facially neutral guise, identical though the effects of this system may be to those of a facially discriminatory one.
Neither United Air Lines Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), nor Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), on which the majority premises its rejection of the continuing violation theory, compels today's result. In Evans, unlike the instant case, the plaintiff never alleged that the seniority system itself was set up in order to discriminate. Indeed, we observed that Evans "does not attack the bona fides of United's seniority system" and "makes no charge that the system is intentionally designed to discriminate." 431 U.S., at 560, 97 S.Ct. at 1890; see also id., at 557, 97 S.Ct., at 1888. The sole discrimination alleged in Evans was in the plaintiff's prior discharge, the impact of which, she alleged, had been enhanced upon her return to work by the failure of the seniority system to accord her credit for time she would have served had she not been discharged. In denying her challenge to that system, we held that "a challenge to a neutral system may not be predicated on the mere fact that a past event [Evan's prior discharge] which has no present legal significance has affected the calculation of seniority credit." Id., at 560, 97 S.Ct., at 1890. That holding is plainly inapposite here, where the very essence of petitioners' claim is that AT & T's discriminatorily adopted seniority system is not neutral. Thus, the majority's conclusion that the "past event" cited in this case-the discriminatory adoption of the very seniority system under legal challenge-has " 'no present legal significance,' " ibid., quoted ante, at 908, is ipse dixit.
Ricks is likewise inapposite. The allegedly discriminatory denial of tenure in that case served notice to the plaintiff that his termination a year later would come as a "delayed, but inevitable consequence," 449 U.S., at 257-258, 101 S.Ct., at 504 (emphasis added). It was thus appropriate, as in so many areas involving statutes of limitations doctrine, to set the limitations clock running upon the plaintiff's discovery of harm to herself. Petitioners Lorance, King, and Bueschen, however, were given no such advance warning. For them, the majority holds, the limitations clock began running, and ran out, long before it was apparent that they would be demoted by AT & T's discriminatory system. Like Evans, Ricks stands for the proposition that neutral employment practices that passively perpetuate the consequences of prior time-barred discrimination but are not themselves bred of discriminatory intent do not constitute actionable wrongs under Title VII. Neither case suggests that the operation of a seniority system set up in order to discriminate should be treated the same way as a legitimate seniority (or tenure) system, born of nondiscriminatory motives, which in a particular case may have the effect of passively reinforcing prior, time-barred acts of discrimination.
Nor, finally, is it correct to say that Machinists v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960), "establishes that the limitations period will run from the date the system was adopted," ante, at 909, and therefore controls this case. Initially, it bears mention that Machinists arose under a different statute, the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169, and that Machinists did not involve a seniority system, but instead a union security clause which, it was alleged, had been defectively adopted. Significant though the role of the NLRA was as a model for Title VII's remedial provisions, these are hardly the indicia of a controlling precedent. Moreover, sound reasons support the finding of a time bar in Machinists, but no time bar here. In Machinists, as in Ricks, the enforcement of the challenged security clause was the inevitable consequence of its execution. The clause affected all nonunion employees alike, and from its very inception there was no mystery about which employees would be affected and about the impact it would have on them. By contrast, in this case, the very essence of petitioners' claim is that AT & T's new seniority system was designed to have a long-range discriminatory impact, hurting women employees as a group but, as of the time of its inception, only theoretically hurting particular woman employees. Unlike Machinists, there is no indication that anyone employed at AT & T was, during the limitations period chosen by the majority, so tangibly affected by the new plan as to create any incentive to sue. 
The majority today continues the process of immunizing seniority systems from the requirements of Title VII. In addition to the other hurdles previously put in place by the Court, employees must now anticipate, and initiate suit to prevent, future adverse applications of a seniority system, no matter how speculative or unlikely these applications may be. This Court's observation that "limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes," Ricks, supra, 449 U.S., at 262, n. 16, 101 S.Ct., at 506, n. 16, has an increasingly hollow ring. Because I do not believe that Congress, in framing Title VII, even remotely contemplated putting employees into the predicament which the majority today makes inevitable, I dissent.
^2 It remains astonishing to me that seniority systems are sheltered from disparate-impact claims, see Teamsters v. United States, 431 U.S. 324, 377-394, 97 S.Ct. 1843, 1875-1885, 52 L.Ed.2d 396 (1977) (opinion of MARSHALL, J.). Even the majority concedes that "[a]s an original matter . . . a plausible, and perhaps even the most natural, reading of § 703(h)" regards that subsection as merely providing an affirmative defense to a disparate-impact action brought under § 703(a)(2). Ante, at 908.
But even accepting our precedents, I do not believe, as the majority does, that they prohibit the Court from finding that petitioners have made a timely and colorable claim of disparate impact under § 703(a)(2). 42 U.S.C. § 2000e-2(a)(2). In Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), we held only that bona fide seniority systems were exempted by § 703(h) from disparate-impact claims. Accepting as true petitioners' allegation that AT & T and its union restructured the seniority system for discriminatory reasons, this system should not qualify as a bona fide one entitled to immunity from disparate-impact claims.
^3 Tellingly, none of the Courts of Appeals presented with a claim of a continuing violation has reached the result the majority today reaches. Indeed, two of the Courts of Appeals have interpreted our precedents to permit claims of continuing violation. Cook v. Pan American World Airways, Inc., 771 F.2d 635, 64 (CA2 1985); cf. Johnson v. General Electric, 840 F.2d 132, 135 (CA1 1988). Even the Seventh Circuit, finding petitioners' claim time barred in the judgment under review, adopted a far narrower interpretation than the majority, under which the limitations period begins to run on the date when the employee first becomes subject to the seniority system. 827 F.2d 163, 167 (CA7 1987).