The Role of Fault and Motive in Defining Discrimination: The Seniority Question Under Title VII
Seniority systems play an important role in American industry, often governing rights to promotion, pay scales, layoff and relative entitlement to ancillary benefits. Seniority based decision-making protects employees from arbitrary employer action, yet seniority's same protective feature often may frustrate minorities' efforts to achieve actual equal employment opportunity. Relying on Title VII's section 703(h), the Supreme Court has held that seniority systems are immune from attack unless discriminatory intent is shown. In this Article, Professor Brodin reviews the evolution of the intent standard now governing seniority system challenges. He contrasts the Supreme Court's restrictive definition of intent in the seniority system context with the concept of intent found in other sections of Title VII, and in tort and criminal law. He argues that the Court's restrictive definition of intent is neither consistent with the legal system's approach to other conduct with socially injurious effects, nor facilitative of the policies represented by Title VII.