U.S. Supreme Court

FRANKS v. BOWMAN TRANSPORTATION CO., 424 U.S. 747 (1976)

424 U.S. 747

FRANKS ET AL. v. BOWMAN TRANSPORTATION CO., INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 74-728.

Argued November 3, 1975.

Decided March 24, 1976.

In a class action against respondent employer and certain labor unions (of which respondent union is the successor) petitioners alleged various racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964 (Act), especially with respect to employment of over-the-road (OTR) truck drivers. After certifying the action as a class action and, inter alia, designating one of the classes represented by petitioner Lee as consisting of black nonemployee applicants who applied for and were denied OTR positions prior to January 1, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered the employer to notify the members of the designated class of their right to priority consideration for such jobs. But the court declined to grant the unnamed members of the class any specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position. While vacating the District Court's judgment insofar as it failed to award backpay to unnamed members of the class and reversing on other grounds, the Court of Appeals affirmed the District Court's denial of any form of seniority relief, holding that such relief was barred, as a matter of law, by 703 (h) of Title VII, which provides that it shall not be an unlawful employment practice for an employer, inter alia, to apply different conditions of employment pursuant to a bona fide seniority system. Held:

1. That petitioner Lee, the named plaintiff representing the class in question, no longer has a personal stake in the outcome of the action because he had been hired by respondent employer and later was properly discharged for cause, does not moot the case. An adverse relationship sufficient to meet the requirement that a "live controversy" remain before this Court not only obtained as to unnamed members of the class with respect to the

underlying cause of action but also continues with respect to their assertion that the relief they have received in entitlement to consideration for hiring and backpay is inadequate without further award of entitlement to seniority benefits. Pp. 752-757.

2. Section 703 (h) does not bar seniority relief to unnamed members of the class in question, who are not seeking modification or elimination of the existing seniority system but only an award of the seniority status they would have individually enjoyed under the present system but for the illegal discriminatory refusal to hire. The thrust of 703 (h) is directed toward defining what is and what is not an illegal discriminatory employment practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the Act's effective date, and there is no indication in the legislative materials concerning it that 703 (h) was intended to modify or restrict relief otherwise appropriate under the Act once an illegal discriminatory practice occurring after the Act's effective date is proved, such as a discriminatory refusal to hire as in this case. Pp. 757-762.

3. An award of seniority retroactive to the date of the individual job application is appropriate under 706 (g) of Title VII, which, to effectuate Title VII's objective of making persons whole for injuries suffered on account of unlawful employment discrimination, vests broad equitable discretion in the federal courts to "order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other relief as the court deems appropriate." Merely to require respondent employer to hire the class victim of discrimination falls far short of a "make whole" remedy, and a concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary absent justification for denying that relief. Without a seniority award dating from the time when he was discriminatorily refused employment, an individual who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which various employment benefits are distributed. Pp. 762-770.

4. Denial of seniority relief for the unnamed class members cannot be justified as within the District Court's discretion on

the grounds given by that court that such individuals had not filed administrative charges with the Equal Employment Opportunity Commission under Title VII and that there was no evidence of a "vacancy, qualification, and performance" for every individual member of the class. Nor can the denial of such relief be justified as within the District Court's discretion on the ground that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other employees of respondent employer. The District Court made no mention of such considerations in denying relief, and to deny relief on such a ground would, if applied generally, frustrate the "make whole" objective of Title VII. Pp. 770-779.

 495 F.2d 398, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined, and in Part I of which POWELL, J., joined. BURGER, C. J., filed an opinion concurring in part and dissenting in part, post, p. 780. POWELL, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, J., joined, post, p. 781. STEVENS, J., took no part in the consideration or decision of the case.

Morris J. Baller argued the cause for petitioners. With him on the briefs were Jack Greenberg, James M. Nabrit III, Barry L. Goldstein, Eric Schnapper, John R. Myer, and Elizabeth R. Rindskopf.

William M. Pate argued the cause and filed a brief for respondent Bowman Transportation Co., Inc.

Michael H. Gottesman argued the cause for respondent United Steelworkers of America. With him on the joint briefs for this respondent and for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal were Elliot Bredhoff, Robert M. Weinberg, Bernard Kleiman, Carl Frankel, Jerome A. Cooper, James W. Dorsey, J. Albert Woll, and Laurence Gold.^{Footnote *}

Briefs of amici curiae were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Mark L. Evans, Brian K. Landsberg, David L. Rose, Julia P. Cooper, Joseph T. Eddins, and Beatrice Rosenberg for the United States et al.; and by Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, John A. Fillion, Stephen I. Schlossberg, Jordan Rossen, M. Jay Whitman, and Herbert L. Segal for Local 862, United Automobile Workers.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case presents the question whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq. (1970 ed. and Supp. IV), may be awarded seniority status retroactive to the dates of their employment applications.[^{Footnote 1} ]

Petitioner Franks brought this class action in the United States District Court for the Northern District of Georgia against his former employer, respondent Bowman Transportation Co., and his unions, the International Union of District 50, Allied and Technical Workers of the United States and Canada, and its local, No. 13600,[^{Footnote 2} ] alleging various racially discriminatory employment practices in violation of Title VII. Petitioner Lee intervened on behalf of himself and others similarly situated alleging racially discriminatory hiring and discharge

policies limited to Bowman's employment of over-the-road (OTR) truck drivers. Following trial, the District Court found that Bowman had engaged in a pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees, and found further that the discriminatory practices were perpetrated in Bowman's collective-bargaining agreement with the unions. The District Court certified the action as a proper class action under Fed. Rule Civ. Proc. 23 (b) (2) and, of import to the issues before this Court, found that petitioner Lee represented all black applicants who sought to be hired or to transfer to OTR driving positions prior to January 1, 1972. In its final order and decree, the District Court subdivided the class represented by petitioner Lee into a class of black nonemployee applicants for OTR positions prior to January 1, 1972 (class 3), and a class of black employees who applied for transfer to OTR positions prior to the same date (class 4).

In its final judgment entered July 14, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered Bowman to notify the members of both sub-classes within 30 days of their right to priority consideration for such jobs. The District Court declined, however, to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position.

On petitioners' appeal to the Court of Appeals for the Fifth Circuit, raising for the most part claimed inadequacy of the relief ordered respecting unnamed members of the various subclasses involved, the Court of Appeals affirmed in part, reversed in part, and vacated in part.  495 F.2d 398 (1974). The Court of Appeals

held that the District Court had exercised its discretion under an erroneous view of law insofar as it failed to award backpay to the unnamed class members of both classes 3 and 4, and vacated the judgment in that respect. The judgment was reversed insofar as it failed to award any seniority remedy to the members of class 4 who after the judgment of the District Court sought and obtained priority consideration for transfer to OTR positions.[^{Footnote 3} ] As respects unnamed members of class 3 - nonemployee black applicants who applied for and were denied OTR positions prior to January 1, 1972 - the Court of Appeals affirmed the District Court's denial of any form of seniority relief. Only this last aspect of the Court of Appeals' judgment is before us for review under our grant of the petition for certiorari. 420 U.S. 989 (1975).

I

Respondent Bowman raises a threshold issue of mootness. The District Court found that Bowman had hired petitioner Lee, the sole-named representative of class 3, and had subsequently properly discharged him for cause,[^{Footnote 4} ] and the Court of Appeals affirmed. Bowman argues that since Lee will not in any event be eligible

for any hiring relief in favor of OTR nonemployee discriminatees, he has no personal stake in the outcome and therefore the question whether nonemployee discriminatees are entitled to an award of seniority when hired in compliance with the District Court order is moot. Bowman relies on Sosna v. Iowa,  419 U.S. 393 (1975), and Board of School Comm'rs v. Jacobs,  420 U.S. 128 (1975). That reliance is misplaced.

Sosna involved a challenge to a one-year residency requirement in a state divorce statute. The District Court properly certified the action as a class action. However, before the case reached this Court, the named representative satisfied the state residency requirement (and had in fact obtained a divorce in another State). 419 U.S., at 398, and n. 7. Although the named representative no longer had a personal stake in the outcome, we held that "[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named representative]," id., at 399, and, accordingly the "cases or controversies" requirement of Art. III of the Constitution was satisfied. Id., at 402.[^{Footnote 5} ]

It is true as Bowman emphasizes that Sosna was an instance of the "capable of repetition, yet evading review" aspect of the law of mootness. Id., at 399-401. And that aspect of Sosna was remarked in Board of School Comm'rs v. Jacobs, supra, a case which was held to

be moot.[^{Footnote 6} ] But nothing in our Sosna or Board of School Comm'rs opinions holds or even intimates that the fact that the named plaintiff no longer has a personal stake in the outcome of a certified class action renders the class action moot unless there remains an issue "capable of repetition, yet evading review."[^{Footnote 7} ] Insofar as the concept of mootness defines constitutionally minimal conditions for the invocation of federal judicial power, its meaning and scope, as with all concepts of justiciability, must be derived from the fundamental policies informing the "cases or controversies" limitation imposed by Art. III.

"As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied

in the words `cases' and `controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen,  392 U.S. 83, 94 -95 (1968).

There can be no question that this certified class action "clearly presented" the District Court and the Court of Appeals "with a case or controversy in every sense contemplated by Art. III of the Constitution." Sosna, supra, at 398. Those courts were presented with the seniority question "in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast, supra, at 95. The only constitutional mootness question is therefore whether, with regard to the seniority issues presented, "a live controversy [remains] at the time this Court reviews the case." Sosna, supra, at 402.

The unnamed members of the class are entitled to the relief already afforded Lee, hiring and backpay, and thus to that extent have "such a personal stake in the outcome of the controversy [whether they are also entitled to seniority relief] as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr,  369 U.S. 186, 204 (1962). Given a properly certified class action, Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to

fulfill this function exists.[^{Footnote 8} ] In this case, that adversary relationship obviously obtained as to unnamed class members with respect to the underlying cause of action and also continues to obtain as respects their assertion that the relief they have received in entitlement to consideration for hiring and backpay is inadequate without further award of entitlement to seniority benefits. This becomes crystal clear upon examination of the circumstances and the record of this case.

The unnamed members of the class involved are identifiable individuals, individually named in the record. Some have already availed themselves of the hiring relief ordered by the District Court and are presently employed as OTR drivers by Bowman. Tr. of Oral Arg. 23. The conditions of that employment are now and so far as can be foreseen will continue to be partially a function of their status in the seniority system. The rights of other members of the class to employment under the District Court's orders are currently the subject of further litigation in that court. Id., at 15. No questions are raised concerning the continuing desire of any of these class members for the seniority relief presently in issue. No questions are raised concerning the tenacity and competence of their counsel in pursuing that mode of legal relief before this Court. It follows that there is no meaningful sense in which a "live controversy" reflecting the issues before the Court could

be found to be absent.[^{Footnote 9} ] Accordingly, Bowman's mootness argument has no merit.

II

In affirming the District Court's denial of seniority relief to the class 3 group of discriminatees, the Court of Appeals held that the relief was barred by 703 (h) of Title VII, 42 U.S.C. 2000e-2 (h). We disagree. Section 703 (h) provides in pertinent part:

"Notwithstanding any other provision of this title, it 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 . . . ."

The Court of Appeals reasoned that a discriminatory refusal to hire "does not affect the bona fides of the seniority system. Thus, the differences in the benefits and conditions of employment which a seniority system accords to older and newer employees is protected [by 703 (h)] as `not an unlawful employment practice.'" 495 F.2d, at 417. Significantly, neither Bowman nor the unions undertake to defend the Court of Appeals' judgment on that ground. It is clearly erroneous.

The black applicants for OTR positions composing class 3 are limited to those whose applications were put

in evidence at the trial.[^{Footnote 10} ] The underlying legal wrong affecting them is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system. Petitioners do not ask for modification or elimination of the existing seniority system, but only for an award of the seniority status they would have individually enjoyed under the present system but for the illegal discriminatory refusal to hire. It is this context that must shape our determination as to the meaning and effect of 703 (h).

On its face, 703 (h) appears to be only a definitional provision; as with the other provisions of 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not.[^{Footnote 11} ] Section 703 (h) certainly does not expressly purport to qualify or proscribe relief otherwise appropriate under the remedial provisions of Title VII, 706 (g), 42 U.S.C. 2000e-5 (g), in circumstances where an illegal discriminatory act or practice is found. Further, the legislative history of 703 (h) plainly negates its reading as limiting

or qualifying the relief authorized under 706 (g). The initial bill reported by the House Judiciary Committee as H. R. 7152[^{Footnote 12} ] and passed by the full House on February 10, 1964,[^{Footnote 13} ] did not contain 703 (h). Neither the House bill nor the majority Judiciary Committee Report[^{Footnote 14} ] even mentioned the problem of seniority. That subject thereafter surfaced during the debate of the bill in the Senate. This debate prompted Senators Clark and Case to respond to criticism that Title VII would destroy existing seniority systems by placing an interpretive memorandum in the Congressional Record. The memorandum stated: "Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective." 110 Cong. Rec. 7213 (1964).[^{Footnote 15} ] Senator Clark also placed in the Congressional Record a Justice Department statement concerning Title VII which stated: "[I]t has been asserted that Title VII would undermine vested rights of seniority. This is not

correct. Title VII would have no effect on seniority rights existing at the time it takes effect." Id., at 7207.[^{Footnote 16} ] Several weeks thereafter, following several informal

conferences among the Senate leadership, the House leadership, the Attorney General and others, see Vaas, Title VII: Legislative History, 7 B. C. Ind. & Com. L. Rev. 431, 445 (1966), a compromise substitute bill prepared by Senators Mansfield and Dirksen, Senate majority and minority leaders respectively, containing 703 (h) was introduced on the Senate floor.[^{Footnote 17} ] Although the Mansfield-Dirksen substitute bill, and hence 703 (h), was not the subject of a committee report, see generally Vaas, supra, Senator Humphrey, one of the informal conferees, later stated during debate on the substitute that 703 (h) was not designed to alter the meaning of Title VII generally but rather "merely clarifies its present intent and effect." 110 Cong. Rec. 12723 (1964). Accordingly, whatever the exact meaning and scope of 703 (h) in light of its unusual legislative history and the absence of the usual legislative materials, see Vaas, supra, at 457-458, it is apparent that the thrust of the section is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act. There is no indication in the legislative materials that 703 (h) was intended to modify or restrict

relief otherwise appropriate once an illegal discriminatory practice occurring after the effective date of the Act is proved - as in the instant case, a discriminatory refusal to hire. This accords with the apparently unanimous view of commentators, see Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598, 1632 (1969); Stacy, Title VII Seniority Remedies in a Time of Economic Downturn, 28 Vand. L. Rev. 487, 506 (1975).[^{Footnote 18} ] We therefore hold that the Court of Appeals erred in concluding that, as a matter of law, 703 (h) barred the award of seniority relief to the unnamed class 3 members.

III

There remains the question whether an award of seniority relief is appropriate under the remedial provisions of Title VII, specifically, 706 (g).[^{Footnote 19} ]

We begin by repeating the observation of earlier decisions that in enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin, Alexander v. Gardner-Denver Co.,  415 U.S. 36, 44 (1974); McDonnell Douglas Corp. v. Green,  411 U.S. 792, 800 (1973); Griggs v. Duke Power Co.,  401 U.S. 424, 429 -430 (1971), and ordained that its policy of outlawing such discrimination should have the "highest priority," Alexander, supra, at 47; Newman v. Piggie Park Enterprises, Inc.,  390 U.S. 400, 402 (1968). Last Term's Albemarle Paper Co. v. Moody,  422 U.S. 405 (1975), consistently with the congressional plan, held that one of the central purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id., at 418. To effectuate this "make whole" objective, Congress in 706 (g) vested broad equitable discretion in the federal courts to "order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate." The legislative history supporting

the 1972 amendments of 706 (g) of Title VII[^{Footnote 20} ] affirms the breadth of this discretion. "The provisions of [ 706 (g)] are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. . . . [T]he Act is intended to make the victims of unlawful employment discrimination whole, and . . . the attainment of this objective . . . requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." Section-by-Section Analysis of H. R. 1746, accompanying the Equal Employment Opportunity Act of 1972 - Conference Report, 118 Cong. Rec. 7166, 7168 (1972). This is emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims of racial discrimination in hiring.[^{Footnote 21} ] Adequate relief may well be

denied in the absence of a seniority remedy slotting the victim in that position in the seniority system that would have been his had he been hired at the time of

his application. It can hardly be questioned that ordinarily such relief will be necessary to achieve the "makewhole" purposes of the Act.

Seniority systems and the entitlements conferred by credits earned thereunder are of vast and increasing importance in the economic employment system of this Nation. S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 104-115 (1960). Seniority principles are increasingly used to allocate entitlements to scarce benefits among competing employees ("competitive status" seniority) and to compute noncompetitive benefits earned under the contract of employment ("benefit" seniority). Ibid. We have already said about "competitive status" seniority that it "has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job." Humphrey v. Moore,  375 U.S. 335, 346 -347 (1964). "More than any other provision of the collective [-bargaining] agreement . . . seniority affects the economic security of the individual employee covered by its terms." Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1535 (1962). "Competitive status" seniority also often plays a broader role in modern employment systems, particularly systems operated under collective-bargaining agreements:

"Included among the benefits, options, and safeguards affected by competitive status seniority, are not only promotion and layoff, but also transfer, demotion, rest days, shift assignments, prerogative in scheduling vacation, order of layoff, possibilities of lateral transfer to avoid layoff, `bumping' possibilities in the face of layoff, order of recall, training opportunities, working conditions, length of layoff endured without reducing seniority, length of layoff

recall rights will withstand, overtime opportunities, parking privileges, and, in one plant, a preferred place in the punch-out line." Stacy, 28 Vand. L. Rev., supra, at 490 (footnotes omitted).

Seniority standing in employment with respondent Bowman, computed from the departmental date of hire, determines the order of layoff and recall of employees.[^{Footnote 22} ] Further, job assignments for OTR drivers are posted for competitive bidding and seniority is used to determine the highest bidder.[^{Footnote 23} ] As OTR drivers are paid on a per-mile basis,[^{Footnote 24} ] earnings are therefore to some extent a function of seniority. Additionally, seniority computed from the company date of hire determines the length of an employee's vacation[^{Footnote 25} ] and pension benefits.[^{Footnote 26} ] Obviously merely to require Bowman to hire the class 3 victim of discrimination falls far short of a "make whole" remedy.[^{Footnote 27} ] A concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary in the absence of justification for denying that relief. Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual

who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits his inferiors.[^{Footnote 28} ]

The Court of Appeals apparently followed this reasoning in holding that the District Court erred in not granting seniority relief to class 4 Bowman employees who were discriminatorily refused transfer to OTR positions. Yet the class 3 discriminatees in the absence of a comparable seniority award would also remain subordinated in the seniority system to the class 4 discriminatees. The distinction plainly finds no support anywhere in Title VII or its legislative history. Settled law dealing with the related "twin" areas of discriminatory hiring and discharges violative of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. 151 et seq., provides a persuasive analogy. "[I]t would indeed be surprising if Congress gave a remedy for the one which it denied for the other."

Phelps Dodge Corp. v. NLRB,  313 U.S. 177, 187 (1941). For courts to differentiate without justification between the classes of discriminatees "would be a differentiation not only without substance but in defiance of that against which the prohibition of discrimination is directed." Id., at 188.

Similarly, decisions construing the remedial section of the National Labor Relations Act, 10 (c), 29 U.S.C. 160 (c) - the model for 706 (g), Albemarle Paper, 422 U.S., at 419[^{Footnote 29} ] - make clear that remedies constituting authorized "affirmative action" include an award of seniority status, for the thrust of "affirmative action" redressing the wrong incurred by an unfair labor practice is to make "the employees whole, and thus restor[e] the economic status quo that would have obtained but for the company's wrongful [act]." NLRB v. Rutter-Rex Mfg. Co.,  396 U.S. 258, 263 (1969). The task of the NLRB in applying 10 (c) is "to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Carpenters v. NLRB,  365 U.S. 651, 657 (1961) (Harlan, J., concurring). And the NLRB has often required that the hiring of employees who have been discriminatorily refused employment be accompanied by an award of seniority equivalent to that which

they would have enjoyed but for the illegal conduct. See, e. g., In re Phelps Dodge Corp., 19 N. L. R. B. 547, 600, and n. 39, 603-604 (1940), modified on other grounds,  313 U.S. 177 (1941) (ordering persons discriminatorily refused employment hired "without prejudice to their seniority or other rights and privileges"); In re Nevada Consolidated Copper Corp., 26 N. L. R. B. 1182, 1235 (1940), enforced,  316 U.S. 105 (1942) (ordering persons discriminatorily refused employment hired with "any seniority or other rights and privileges they would have acquired, had the respondent not unlawfully discriminated against them"). Plainly the "affirmative action" injunction of 706 (g) has no lesser reach in the district courts. "Where racial discrimination is concerned, `the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.'" Albemarle Paper, supra, at 418.

IV

We are not to be understood as holding that an award of seniority status is requisite in all circumstances. The fashioning of appropriate remedies invokes the sound equitable discretion of the district courts. Respondent Bowman attempts to justify the District Court's denial of seniority relief for petitioners as an exercise of equitable discretion, but the record is its own refutation of the argument.

Albemarle Paper, supra, at 416, made clear that discretion imports not the court's "`inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles.'" Discretion is vested not for purposes of "limit[ing] appellate review of trial courts, or . . . invit[ing] inconsistency and caprice," but rather to allow the most complete achievement of the objectives

of Title VII that is attainable under the facts and circumstances of the specific case. 422 U.S., at 421. Accordingly the District Court's denial of any form of seniority remedy must be reviewed in terms of its effect on the attainment of the Act's objectives under the circumstances presented by this record. No less than with the denial of the remedy of backpay, the denial of seniority relief to victims of illegal racial discrimination in hiring is permissible "only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Ibid.

The District Court stated two reasons for its denial of seniority relief for the unnamed class members.[^{Footnote 30} ] The first was that those individuals had not filed administrative charges under the provisions of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper, and for the same reasons reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments. Albemarle Paper, supra, at 414 n. 8.

The second reason stated by the District Court was that such claims "presuppose a vacancy, qualification,

and performance by every member. There is no evidence on which to base these multiple conclusions." Pet. for Cert. A54. The Court of Appeals rejected this reason insofar as it was the basis of the District Court's denial of backpay, and of its denial of retroactive seniority relief to the unnamed members of class 4. We hold that it is also an improper reason for denying seniority relief to the unnamed members of class 3.

We read the District Court's reference to the lack of evidence regarding a "vacancy, qualification, and performance" for every individual member of the class as an expression of concern that some of the unnamed class members (unhired black applicants whose employment applications were summarized in the record) may not in fact have been actual victims of racial discrimination. That factor will become material however only when those persons reapply for OTR positions pursuant to the hiring relief ordered by the District Court. Generalizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class. Rather, at such time as individual class members seek positions as OTR drivers, positions for which they are presumptively entitled to priority hiring consideration under the District Court's order,[^{Footnote 31} ] evidence that particular individuals were not in fact victims of racial discrimination will be material. But petitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination.

Cf. McDonnell Douglas Corp. v. Green,  411 U.S. 792, 802 (1973); Baxter v. Savannah Sugar Rfg. Corp.,  495 F.2d 437, 443-444 (CA5), cert. denied, 419 U.S. 1033 (1974).[^{Footnote 32} ] Only if this burden is met may retroactive seniority - if otherwise determined to be an appropriate form of relief under the circumstances of the particular case - be denied individual class members.

Respondent Bowman raises an alternative theory of justification. Bowman argues that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other Bowman employees. Accordingly, it is argued, the District Court acted within its discretion in denying this form of relief as an attempt to accommodate the competing interests of the various groups of employees.[^{Footnote 33} ]

We reject this argument for two reasons. First, the District Court made no mention of such considerations in its order denying the seniority relief. As we noted in Albemarle Paper, 422 U.S., at 421 n. 14, if the district court declines, due to the peculiar circumstances of the particular case, to award relief generally appropriate under Title VII, "[i]t is necessary . . . that . . . it carefully articulate its reasons" for so doing. Second, and more fundamentally, it is apparent that denial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central "make whole" objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy. But, as we have said, there is nothing in the language of Title VII, or in its legislative history, to show that Congress intended generally to bar this form of relief to victims of illegal discrimination, and the experience under its remedial model in the National Labor Relations Act points to the contrary.[^{Footnote 34} ] Accordingly,

we find untenable the conclusion that this form of relief may be denied merely because the interests of other employees may thereby be affected. "If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the Act is directed." United States v. Bethlehem Steel Corp.,  446 F.2d 652, 663 (CA2 1971).[^{Footnote 35} ]

With reference to the problems of fairness or equity respecting the conflicting interests of the various groups of employees, the relief which petitioners seek is only seniority status retroactive to the date of individual application, rather than some form of arguably more complete relief.[^{Footnote 36} ] No claim is asserted that nondiscriminatee employees holding OTR positions they would not have obtained but for the illegal discrimination should be deprived of the seniority status they have earned. It is therefore clear that even if the seniority relief petitioners seek is awarded, most if not all discriminatees who actually obtain OTR jobs under the court order will not truly be restored to the actual seniority that would have existed in the absence of the illegal discrimination. Rather, most discriminatees even under an award of retroactive seniority status will still remain subordinated in the hierarchy to a position inferior to that of a greater total number of employees than would have been the case in the absence of discrimination.

Therefore, the relief which petitioners seek, while a more complete form of relief than that which the District Court accorded, in no sense constitutes "complete relief."[^{Footnote 37} ] Rather, the burden of the past discrimination in hiring is with respect to competitive status benefits divided among discriminatee and nondiscriminatee employees under the form of relief sought. The dissent criticizes the Court's result as not sufficiently cognizant that it will "directly implicate the rights and expectations of perfectly innocent employees." Post, at 788. We are of the view, however, that the result which we reach today - which, standing alone,[^{Footnote 38} ] establishes that a sharing of the burden of the past discrimination is presumptively necessary - is entirely consistent with any fair characterization of equity jurisdiction,[^{Footnote 39} ] particularly