Legal Memorandum: Staffing Decisions based on Seniority

Issue: Under federal or Puerto Rico law, are staffing decisions based on seniority an illegal employment practice?

Area of Law: Employee Law
Keywords: Illegal employment practice; Seniority; Staffing decisions
Jurisdiction: Federal, Puerto Rico
Cited Cases: 314 F.3d 249; 167 F. Supp. 2d 34; 260 F. Supp. 2d 1305; 180 F.3d 1047
Cited Statutes: 42 U.S.C. § 200e-2(h)
Date: 05/01/2004

Considering seniority is not an illegal employment practice.  See 42 U.S.C. § 200e-2(h).*FN1   Puerto Rico law, in fact, requires employers to follow seniority when they lay off employees for business reasons and when they recall the employees within six months.  See Law 80 of May 30, 1976, art. 3, 29 Laws P.R. Ann. 185c.  Under federal employment law, “seniority systems are a valid method of providing different levels of compensation and privileges, even if they have a discriminatory impact on employees.”  Balint v. Carson City, Nevada, 180 F.3d 1047, 1051 (9th Cir. 1999).  The Supreme Court has held that an airline is not required to “carve out a special exception to its seniority system” to accommodate an employee’s religious obligations and it should not have to be left short-handed or bear more than a de minimis cost.  Trans World Airlines v. Hardison, 432 U.S. 63, 83-84, 97 S. Ct. 2264 (1977). 

Seniority thus constitutes a legitimate, non-discriminatory reason for treating employees differently, and it rebuts a prima facie case of a Title VII violation.  See Cooper v. Southern Co., 260 F. Supp. 2d 1305, 1313-14 (N.D, Ga. 2003).  To rebut the defense, the employee must prove either that (1) the system was adopted with a discriminatory intent, or (2) the system was administered in an irregular or arbitrary manner with the intent to harm a person in a protected class.  Zambetti v. Cuyahoga Comm’y College, 314 F.3d 249, […]

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