10.15 CIVIL RIGHTS—TITLE VII—DEFENSE—BONA FIDE SENIORITY SYSTEM

The defendant contends that the treatment of the plaintiff was based on a bona fide seniority system. The defendant has the burden of proving both of the following elements by a preponderance of the evidence:

1.	the seniority system had legitimate goals and was not designed to discriminate on the basis of [race] [color] [religion] [sex] [national origin]; and

2.	the seniority system used the employee's length of service as the primary consideration in selecting the employees who would not be [describe the alleged discriminatory action].

If you find that the plaintiff has proved [his] [her] claim[s], your verdict should be for the plaintiff, unless you find that the defendant has proved this defense, in which event your verdict should be for the defendant.

Comment

In relevant part 42 U.S.C. § 2000e-2(h) provides:

[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 or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .

Bona fide seniority systems are valid under Title VII pursuant to 42 U.S.C. § 2000e-2(h), even though such systems may perpetuate pre-Act discrimination. See Int'l. Bhd. of Teamsters v. United States, 431 U.S. 324, 348-55 (1977). Seniority systems do not violate Title VII even if they have a disproportionate effect on a protected group, so long as they are not intentionally discriminatory. See Pullman-Standard v. Swint, 456 U.S. 273, 289 (1982); Balint v. Carson City, 180 F.3d 1047, 1051 (9th Cir. 1999) (noting that under Title VII, "seniority systems are a valid method of providing different levels of compensation and privileges, even if they have a discriminatory impact on employees"). A seniority system is not illegal provided it is not the result of an intent to discriminate on prohibited grounds; the issue of intent is a necessary element of a Title VII action challenging the seniority system and is not merely an affirmative defense to such a challenge. See Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 905 (1989); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1046 n.7 (7th Cir. 1996) ("A 'bona fide' seniority system is one that was created for legitimate purposes, rather than for the purpose of discrimination."). Seniority systems necessarily "contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment." California Brewers Ass'n v. Bryant, 444 U.S. 598, 604, 607 (1980) (reversing circuit determination that "fundamental component" of seniority system is "the concept that employment rights should increase as the length of an employee's service increases.").