747

Opinion of the Court

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. GardnerDenver 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 supappropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3 (a) of this title."

porting the 1972 amendments of § 706 (g) of Title VII 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.21 Adequate relief may well be

20 Equal Employment Opportunity Act of 1972, 86 Stat. 103, amending 42 U. S. C. § 2000e et seq.

21 It is true that backpay is the only remedy specifically mentioned in § 706 (g). But to draw from this fact and other sections of the statute, post, at 789-793, any implicit statement by Congress that seniority relief is a prohibited, or at least less available, form of remedy is not warranted. Indeed, any such contention necessarily disregards the extensive legislative history underlying the 1972 amendments to Title VII. The 1972 amendments added the phrase speaking to "other equitable relief" in § 706 (g). The Senate Report manifested an explicit concern with the "earnings gap" presently existing between black and white employees in American society. S. Rep. No. 92-415, p. 6 (1971). The Reports of both Houses of Congress indicated that "rightful place" was the intended objective of Title VII and the relief accorded thereunder. Ibid.; H. R. Rep. No. 92-238, p. 4 (1971). As indicated, infra, at 767-768, and n. 28, rightful-place seniority, implicating an employee's

747

Opinion of the Court

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

future earnings, job security, and advancement prospects, is absolutely essential to obtaining this congressionally mandated goal.

The legislative history underlying the 1972 amendments completely answers the argument that Congress somehow intended seniority relief to be less available in pursuit of this goal. In explaining the need for the 1972 amendments, the Senate Report stated:

"Employment discrimination as viewed today is a . . . complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of 'systems' and 'effects' rather than simply intentional wrongs, and the literature on the subject is replete with discussions of, for example, the mechanics of seniority and lines of progression, perpetuation of the present effect of pre-act discriminatory practices through various institutional devices, and testing and validation requirements." S. Rep. No. 92-415, supra, at 5.

See also H. R. Rep. No. 92-238, supra, at 8. In the context of this express reference to seniority, the Reports of both Houses cite with approval decisions of the lower federal courts which granted forms of retroactive "rightful place" seniority relief. S. Rep. No. 92-415, supra, at 5 n. 1; H. R. Rep. No. 92-238, supra, at 8 n. 2. (The dissent, post, at 796-797, n. 18, would distinguish these lower federal court decisions as not involving instances of discriminatory hiring. Obviously, however, the concern of the entire thrust of the dissent-the impact of rightful-place seniority upon the expectations of other employees-is in no way a function of the specific type of illegal discriminatory practice upon which the judgment of liability is predicated.) Thereafter, in language that could hardly be more explicit, the analysis accompanying the Conference Report stated:

"In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII." Section-By-Section Analysis of H. R. 1746, accompanying The Equal Employment Opportunity Act of 1972-Conference Report, 118 Cong. Rec. 7166 (1972) (emphasis added).

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 collectivebargaining 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).

24

Seniority standing in employment with respondent Bowman, computed from the departmental date of hire, determines the order of layoff and recall of employees.2 Further, job assignments for OTR drivers are posted for competitive bidding and seniority is used to determine the highest bidder.23 As OTR drivers are paid on a per-mile basis, 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 25 and pension benefits.26 Obviously merely to require Bowman to hire the class 3 victim of discrimination falls far short of a "make whole" remedy.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 indi

22 App. 46a-50a.

23 Ibid.

24 2 Record 161. 25 App. 47a, 51a.

26 2 Record 169.

27 Further, at least in regard to "benefit"-type seniority such as length of vacation leave and pension benefits in the instant case, any general bar to the award of retroactive seniority for victims of illegal hiring discrimination serves to undermine the mutually reinforcing effect of the dual purposes of Title VII; it reduces the restitution required of an employer at such time as he is called upon to account for his discriminatory actions perpetrated in violation of the law. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 417-418 (1975).