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The first part of this Manual Section,  616.2 through 616.9, is intended to=
 provide the EOS with background on seniority systems generally, defining t=
hem and describing a number of frequently seen types of systems. The next f=
ewsubsections describe how a seniority system can have an adverse impact or=
 perpetuate past discrimination, discuss the effect of  703(h), and list CD=
P and non-CDP issues. As will be explained in  616.19, most seniority syste=
ms willbe presumed to be bona fide. Sections 616.20 through 616.24, explain=
ing how to determine if a system is bona fide, will therefore only be relev=
ant in those few cases where the District Director decides that there is re=
ason to suspect that aparticular system is not bona fide. Finally, the last=
 three subsections of the Manual discuss a few other issues related to seni=
ority, maternity leave, layoff and recall, and seniority overrides.

Most seniority systems are created as a result of negotiation between one o=
r more unions acting as representatives of the employees, and one or more e=
mployers. These negotiations will usually produce a collective bargaining a=
greement orcontract between the union(s) and employer(s). The seniority sys=
tem will be set out in the agreement. The number of unions involved, the nu=
mber of employers involved, variations in employers' organizational structu=
res, and the types ofjobs covered are among the factors which lead to an al=
most bewildering variety of collective bargaining agreements and, consequen=
tly, of seniority systems. In order for the EOS to be able to apply Title V=
II to seniority issues (s)he will haveto be able to identify and understand=
 the type of collective bargaining arrangement at a particular company or p=
lant. The EOS should see  630, Unions, for an explanation of the collective=
 bargaining process and the types of collectivebargaining agreements. Secti=
on 616.8 will explain how the type of seniority system can differ depending=
 upon the type of collective bargaining arrangement involved.

Most seniority systems are in writing and can be found in a collective barg=
aining agreement, personnel manual, or other handbook of personnel procedur=
es. The system does not have to be in writing, however, in order to be cons=
idered bonafide and therefore as excepted from Title VII based on  703(h) o=
f the Act. A respondent's assertion that it has an unwritten, informal syst=
em should be accepted only if the employees covered by the system have been=
 told both that theyare covered by the system and of the system's terms and=
 conditions. The EOS should question a number of the employees covered by t=
he claimed unwritten system to determine if and when they were told of the =
system's existence and rules. The employees must have been so informed eith=
er when they were hired or, if the system was begun afterwards, at that tim=
e.

A seniority system can be tailored to the needs of a particular employer. I=
t can be the result of a complicated and possibly confusing history of coll=
ective bargaining. (See  616.2.) A seniority system can be almostanything a=
 collective bargaining agreement says it is. In  630.3(b) the types of shop=
s are described. A seniority system in a union, agency, or open shop will u=
sually apply to members of the union and nonmembers alike. Thefollowing are=
 descriptions of the most common types of systems. They roughly follow the =
types of collective bargaining situations described in  630.3(d). As a rule=
, there will be one seniority system for each collective bargainingagreemen=
t with a particular employer; e.g., a company with two collective bargainin=
g agreements will generally have two separate seniority systems (and possib=
ly a third, unilateral system for any employees not covered by a collective=
bargaining agreement). However, at a company with a number of collective ba=
rgaining agreements, two or more of the agreements might provide for a shar=
ed seniority system. (See  630.3(d)(5) and (6) and 616.8(d).) Further,withi=
n each system there can be more than one seniority roster.

As explained in  630.3(d)(3), a company may have a number of bargaining uni=
ts, each represented by a different union and with a separate collective ba=
rgaining agreement. In this situation there can be a separate seniority sys=
tem foreach unit. If the units are craft or job units, these will be separa=
te craft or job seniority systems; if the units are departments, these will=
 be departmental seniority systems, and similarly for plant and division sy=
stems. Each systemwill be controlled by a separate set of rules (see  616.3=
(b), 616.4, and 616.9), although many or most of the rules may be identical=
. Each system can have one or more rosters. Those employees not in any barg=
aining unit will eithernot be covered by a seniority system or will be cove=
red by a system imposed by the employer.

As explained in  630.3(d)(4), a company may have a number of bargaining uni=
ts, each represented by a different union but with either the same bargaini=
ng agreement or separate agreements with shared provisions. In either case =
theunions can agree to the same seniority system for the nonmanagement empl=
oyees in all the participating units. The same rules would apply to all the=
 employees. There can be one or more rosters. Those employees not in any of=
 theparticipating bargaining units will either be in other bargaining units=
 with their own systems or not in any bargaining unit; in the latter case, =
they will either not be included in a seniority system or be included in on=
e imposed by theemployer.

As explained in  630.3(d)(5), one union can represent a number of an employ=
er's bargaining units, with a separate collective bargaining agreement for =
each unit. In this situation there can be a separate seniority system for e=
ach unit,just as there can be when the units are each represented by a diff=
erent union. (See  616.8(c).) Each system will be controlled by a separate =
set of rules although many or most of the rules may be identical. Each syst=
em canhave one or more rosters. Those employees not in any of the bargainin=
g units represented by one union may be in a bargaining unit or units repre=
sented by another union and covered by yet another seniority system (see  6=
16.8(c)) or by asystem shared with the first union (see  616.8(d)). Those e=
mployees not in any bargaining unit will either not be covered by a seniori=
ty system or will be covered by a system imposed by the employer.

(1) While many charges involving seniority systems will contain allegations=
 of adverse impact, a large number of seniority-related charges will allege=
 perpetuation of past discrimination. However, the Supreme Court has interp=
reted 703(h) in Teamsters and Patterson as protecting a collectively bargai=
ned, bona fide seniority system, even if the seniority system perpetuates t=
he effects of prior discrimination. (Sections 616.19 through 616.23 willpro=
vide instructions on how to determine if a system is bona fide.) A bona fid=
e seniority system that perpetuates the effects of a discriminatory act or =
acts occurring before the effective date of Title VII cannot be challenged,=
 and neithercan the original discriminatory practice or procedure, since it=
 occurred before Title VII went into effect. A bona fide seniority system t=
hat perpetuates the effects of a discriminatory act or acts occurring after=
 the effective date of TitleVII also cannot be challenged. California Brewe=
rs Association v. Bryant. However, the original discriminatory practice or =
procedure can be challenged and processed as a regular discrimination charg=
e if made the subject of a timelycharge. (See  605.6 on timeliness.) Once a=
 finding of discrimination is made regarding the original practice or proce=
dure, retroactive seniority may be appropriate relief for an individual cha=
rging party. While the senioritysystem as a whole cannot be challenged an i=
ndividual can be restored to his/her rightful place in the existing system =
by being given the amount of seniority (s)he would have had but for the dis=
crimination. International Brotherhood of Teamstersv. United States; Franks=
 v. Bowman Transportation Co., 424 U.S. 747, 11 EPD  10,777 (1976).
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