of the United States Constitution, Art. IV, § 3, cl. 2. 344 N. E. 2d 411. We granted certiorari. 429 U. S. 815 (1976). Our decision today in Douglas v. Seacoast Products, Inc., ante, p. 265, suggests that there may be a statutory basis to provide respondent the relief he seeks, thereby making it unnecessary to decide the constitutional question presented. Douglas holds that federal law pre-empts the States from denying vessels that are federally enrolled and licensed for the fisheries the right to fish in state waters on the same terms as state residents. Respondent's vessel is federally enrolled and licensed "to be employed in carrying on the mackerel fishery," the same license that was held by appellees in Douglas. In accordance with our longstanding principle of deciding constitutional questions only when necessary, Hagans v. Lavine, 415 U. S. 528, 543 (1974); Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring), we decline to decide the privileges and immunities question presented in this case, and vacate the judgment and remand the case for further consideration in light of Douglas. See McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 (1940).

It is so ordered.

JUSTICE REHNQUIST concurs in the judgment on the authority of Douglas v. Seacoast Products, Inc., ante, p. 265.

2 The fact that respondent holds such a license has been ascertained from the records of the Merchant Vessel Documentation Division of the Coast Guard. These records may be judicially noticed. See, e. g., Bowles v. United States, 319 U. S. 33 (1943); Tempel v. United States, 248 U. S. 121 (1918); Jones v. United States, 137 U. S. 202 (1890); cf. Fed. Rule Evid. 201 (b) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). The parties were given an opportunity to comment on the propriety of our taking notice of the license, and both sides agreed that we could properly. do so. See supplemental briefs filed by the parties.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS v. UNITED STATES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 75-636. Argued January 10, 1977-Decided May 31, 1977* The United States instituted this litigation under Title VII of the Civil Rights Act of 1964 against petitioners, a nationwide common carrier of motor freight, and a union representing a large group of the company's employees. The Government alleged that the company had engaged in a pattern or practice of discriminating against Negroes and Spanishsurnamed persons (hereinafter sometimes collectively "minority members") who were hired as servicemen or local city drivers, which were lower paying, less desirable jobs than the positions of line drivers (over-the-road, long-distance drivers), which went to whites, and that the seniority system in the collective-bargaining agreements between petitioners perpetuated ("locked in") the effects of past racial and ethnic discrimination because under that system a city driver or serviceman who transferred to a line-driver job had to forfeit all the competitive seniority he had accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board." The Government sought a general injunctive remedy and specific "make whole" relief for individual discriminatees, which would allow them an opportunity to transfer to line-driver jobs with full company seniority. Section 703 (a) of Title VII makes it an unlawful employment practice, inter alia, for an employer to fail or refuse to hire any individual or otherwise discriminate against him with regard to his employment because of his race or national origin. Section 703 (h) provides in part that notwithstanding other provisions, it shall not be an unlawful employment practice for an employer to apply different employment standards. "pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate . . . ." The District Court after trial, with respect to both the employment discrimination and the seniority system in the collective-bargaining agreements, held that petitioners had violated Title VII and enjoined both the company and the union from committing further violations thereof. With respect to individual relief, the court determined that

*Together with No. 75-672, T. I. M. E.-D. C., Inc. v. United States et al., also on certiorari to the same court.

the "affected class" of discriminatees included all minority members who had been hired as city drivers or servicemen at every company terminal with a line-driver operation, whether they were hired before or after Title VII's effective date. The discriminatees thereby became entitled to preference over all other line-driver applicants in the future. Finding that members of the affected class had been injured in varying degrees, the court created three subclasses, and applied to each a different formula for filling line-driver jobs and for establishment of seniority, giving retroactive seniority to the effective date of the Act to those who suffered "severe injury." The right of any class member to a line-driver vacancy was made subject to the prior recall rights under the collectivebargaining agreement of line drivers who had been on layoff for not more than three years. Although agreeing with the District Court's basic conclusions, the Court of Appeals rejected the affected-class trisection, holding that the minority members could bid for future linedriver jobs on the basis of their company seniority and that once a class member became a line driver he could use his full company seniority even if it antedated Title VII's effective date, limited only by a "qualification date" formula, under which seniority could not be awarded for periods prior to the date when (1) a line-driver job was vacant, and (2) the class member met (or, given the opportunity, would have met) the line-driver qualifications. Holding that the threeyear priority in favor of laid-off workers "would unduly impede the eradication of past discrimination," the Court of Appeals directed that when a not purely temporary line-driver vacancy arose a class member might compete against any line driver on layoff on the basis of the member's retroactive seniority. Held:

1. The Government sustained its burden of proving that the company engaged in a systemwide pattern or practice of employment discrimination against minority members in violation of Title VII by regularly and purposefully treating such members less favorably than white. persons. The evidence, showing pervasive statistical disparities in linedriver positions between employment of the minority members and whites, and bolstered by considerable testimony of specific instances of discrimination, was not adequately rebutted by the company and supported the findings of the courts below. Pp. 334-343.

2. Since the Government proved that the company engaged in a post-Act pattern of discriminatory employment policies, retroactive seniority may be awarded as relief for post-Act discriminatees even if the seniority system agreement makes no provision for such relief. Franks v. Bowman Transportation Co., 424 U. S. 747, 778-779. Pp. 347-348.

3. The seniority system was protected by § 703 (h) and therefore the union's conduct in agreeing to and maintaining the system did not violate Title VII. Employees who suffered only pre-Act discrimination are not entitled to relief, and no person may be given retroactive seniority to a date earlier than the Act's effective date. The District Court's injunction against the union must consequently be vacated. Pp. 348-356.

(a) By virtue of § 703 (h) a bona fide seniority system does not become unlawful simply because it may perpetuate pre-Title VII discrimination, for Congress (as is manifest from the language and legislative history of the Act) did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees. Thus here because of the company's intentional pre-Act discrimination the disproportionate advantage given by the seniority system to the white line drivers with the longest tenure over the minority member employees who might by now have enjoyed those advantages were it not for the pre-Act discrimination is sanctioned by § 703 (h). Pp. 348-355.

(b) The seniority system at issue here is entirely bona fide, applying to all races and ethnic groups, and was negotiated and is maintained free from any discriminatory purpose. Pp. 355–356.

4. Every post-Act minority member applicant for a line-driver position is presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line-driver job was not based on its policy of discrimination. Cf. Franks, supra, at 773 n. 32. Pp. 357-362.

5. An incumbent employee's failure to apply for a job does not inexorably bar an award of retroactive seniority, and individual nonapplicants must be afforded an opportunity to undertake their difficult task of proving that they should be treated as applicants and therefore are presumptively entitled to relief accordingly. Pp. 362-371.

(a) Congress' purpose in vesting broad equitable powers in Title VII courts was "to make possible the 'fashion [ing] [of] the most complete relief possible,'" Albemarle Paper Co. v. Moody, 422 U. S. 405, 421. Measured against the broad prophylactic purposes of Title VII, the company's assertion that a person who has not actually applied for a job can never be awarded seniority relief cannot prevail, for a consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. Pp. 364-367.

(b) However, a nonapplicant must still show that he was a potential

victim of unlawful discrimination and that he would have applied for a line-driver job but for the company's discriminatory practices. The known prospect of discriminatory rejection shows only that employees who wanted line-driving jobs may have been deterred from applying for them but does not show which of the nonapplicants actually wanted such jobs or were qualified. Consequently, the Government has the burden of proving at a remedial hearing to be conducted by the District Court which specific nonapplicants would have applied for line-driver jobs but for their knowledge of the company's discriminatory policies. Pp. 367-371.

6. At such hearing on remand the District Court will have to identify which of the minority members were actual victims of discrimination and, by application of the basic principles of equity, to balance their interest against the legitimate expectations of other employees innocent of wrongdoing. Pp. 371-376.

517 F.2d 299, vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 377.

L. N. D. Wells, Jr., argued the cause for petitioner in No. 75-636. With him on the briefs were David Previant and G. William Baab. Robert D. Shuler argued the cause for petitioner in No. 75-672. With him on the brief was John W. Ester.

argued the cause for With him on the brief

Deputy Solicitor General Wallace the United States et al. in both cases. were Solicitor General Bork, Assistant Attorney General Pottinger, Thomas S. Martin, Brian K. Landsberg, David L. Rose, William B. Fenton, Jessica Dunsay Silver, and Abner W. Sibal.t

+Jack Greenberg, O. Peter Sherwood, Barry L. Goldstein, and Eric Schnapper filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.

Briefs of amici curiae were filed by Michael A. Warner, Robert E. Williams, and Douglas S. McDowell for the Equal Employment Advisory Council; and by W. Walton Garrett for the Over the Road Drivers Assn.,