Congress has prohibited discrimination in employment by enacting Title VII of the 1964 Civil Rights Act. Section 703(h) was passed as an exemption to Title VII, in order to protect bona fide systems of seniority. The purpose of Title VII was "the prevention of unlawful employment discrimination and the amelioration and elimination of the effects of past discrimination." To this end, the courts historically have looked at the "effects" of discrimination rather than the "intent" to discriminate, when analyzing a Title VII violation. Recently the Supreme Court, in American Tobacco Co. v. Patterson, has required a showing of intent to discriminate in the operation of a seniority system in order to prove that it is outside the section 703(h) exemption to Title VII. The American Tobacco decision also extended section 703(h)'s protection to post-Act seniority systems." Prior to this decision, the courts held that section 703(h) protected only seniority systems in effect prior to the effective date of Title VII. In order to understand fully the ramifications of the recent Supreme Court decision in American Tobacco and its effect on section 703(h), the legislative history and the Court's interpretation of the legislative history must be considered. This Note will trace the history of section 703(h) through Congress and the courts, and will ultimately show the negative effects that the American Tobacco decision will have on challenges to seniority systems. In this decision, the Court broadened the scope of 703(h) without defining the term "bona fide" system. The Court therefore has erected new barriers that now face employees challenging seniority systems under Title VII, and left employers and unions without definitive guidelines detailing their duties to bargain collectively on the issue of seniority systems.
Note, The Seniority System Exemption to Title VII of the Civil Rights Acts: The Impact of a New Barrier to Title VII Litigants, 32 Clev. St. L. Rev. 607 (1983-1984)