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6 PJI 3.2 | SECTION 1981 | BONA FIDE SENIORITY SYSTEM

No Instruction
COMMENT Title VII provides that “[n]otwithstanding any other provision of this subchapter, 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... system,... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ..." 42 U.S.C. § 2000e-2(h). In Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 908-09 (1989), superseded by statute on other grounds, Pub. L. No. 102-166, Title I, § 112, 105 Stat. 1079, codified as amended at 42 U.S.C. § 2000e-5(e)(2), the Court stated that the plaintiff has the burden of proving intentional discrimination and held that, as applied to seniority systems, the plaintiff must prove that the seniority system is a means of intentional discrimination. Thus the existence of a bona fide seniority system is not an affirmative defense; rather it is simply an aspect of the plaintiff’s burden of proving discrimination. The standards for proving intentional discrimination are the same for Title VII and Section 1981. See Gunby v. Pennsylvania Electric Co., 840 F.2d 1108 (3d Cir. 1988). Accordingly, no instruction is included for any affirmative defense for a bona fide seniority system.
(Last Updated March 2018)