This case presents the question whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e Et seq. (1970 ed. and Supp. IV), may be awarded seniority status retroactive to the dates of their employment applications.1

Petitioner Franks brought this class action in the United States District Court for the Northern District of Georgia against his former employer, respondent Bowman Transportation Co., and his unions, the International Union of District 50, Allied and Technical Workers of the United States and Canada, and its local, No. 13600,2 alleging various racially discriminatory employment practices in violation of Title VII. Petitioner Lee intervened on behalf of himself and others similarly situated alleging racially discriminatory hiring and discharge policies limited to Bowman's employment of over-the-road (OTR) truck drivers. Following trial, the District Court found that Bowman had engaged in a pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees, and found further that the discriminatory practices were perpetrated in Bowman's collective-bargaining agreement with the unions. The District Court certified the action as a proper class action under Fed.Rule Civ.Proc. 23(b)(2), and of import to the issues before this Court, found that petitioner Lee represented all black applicants who sought to be hired or to transfer to OTR driving positions prior to January 1, 1972. In its final order and decree, the District Court subdivided the class represented by petitioner Lee into a class of black nonemployee applicants for OTR positions prior to January 1, 1972 (class 3), and a class of black employees who applied for transfer to OTR positions prior to the same date (class 4).

In its final judgment entered July 14, 1972, the District Court permanently enjoined the respondents from perpetuating the discriminatory practices found to exist, and, in regard to the black applicants for OTR positions, ordered Bowman to notify the members of both subclasses within 30 days of their right to priority consideration for such jobs. The District Court declined, however, to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an OTR position.

On petitioners' appeal to the Court of Appeals for the Fifth Circuit, raising for the most part claimed inadequacy of the relief ordered respecting unnamed members of the various subclasses involved, the Court of Appeals affirmed in part, reversed in part, and vacated in part. 495 F.2d 398 (1974). The Court of Appeals held that the District Court had exercised its discretion under an erroneous view of law insofar as it failed to award backpay to the unnamed class members of both classes 3 and 4, and vacated the judgment in that respect. The judgment was reversed insofar as it failed to award any seniority remedy to the members of class 4 who after the judgment of the District Court sought and obtained priority consideration for transfer to OTR positions.3 As respects unnamed members of class 3 nonemployee black applicants who applied for and were denied OTR positions prior to January 1, 1972 the Court of Appeals affirmed the District Court's denial of any form of seniority relief. Only this last aspect of the Court of Appeals' judgment is before us for review under our grant of the petition for certiorari. 420 U.S. 989, 95 S.Ct. 1421, 43 L.Ed.2d 669 (1975).

* Respondent Bowman raises a threshold issue of mootness. The District Court found that Bowman had hired petitioner Lee, the sole-named representative of class 3, and had subsequently properly discharged him for cause,4 and the Court of Appeals affirmed. Bowman argues that since Lee will not in any event be eligible for any hiring relief in favor of OTR nonemployee discriminatees, he has no personal stake in the outcome and therefore the question whether nonemployee discriminatees are entitled to an award of seniority when hired in compliance with the District Court order is moot. Bowman relies on Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Board of School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). That reliance is misplaced.

Sosna involved a challenge to a one-year residency requirement in a state divorce statute. The District Court properly certified the action as a class action. However, before the case reached this Court, the named representative satisfied the state residency requirement (and had in fact obtained a divorce in another State). 419 U.S., at 398, and n. 7, 95 S.Ct. at 557, 42 L.Ed.2d, at 540. Although the named representative no longer had a personal stake in the outcome, we held that "(w)hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by (the named representative)," Id., at 399, 95 S.Ct., at 557, 42 L.Ed.2d, at 540, and, accordingly the "cases or controversies" requirement of Art. III of the Constitution was satisfied. Id., at 402, 95 S.Ct., at 559, 42 L.Ed.2d at 542.5

It is true as Bowman emphasizes that Sosna was an instance of the "capable of repetition, yet evading review" aspect of the law of mootness. Id., at 399-401, 95 S.Ct., at 557, 42 L.Ed.2d., at 540. And that aspect of Sosna was remarked in Board of School Comm'rs v. Jacobs, supra, a case which was held to be moot.6 But nothing in our Sosna or Board of School Comm'rs opinions holds or even intimates that the fact that the named plaintiff no longer has a personal stake in the outcome of a certified class action renders the class action moot unless there remains an issue "capable of repetition, yet evading review."7 Insofar as the concept of mootness defines constitutionally minimal conditions for the invocation of federal judicial power, its meaning and scope, as with all concepts of justiciability, must be derived from the fundamental policies informing the "cases or controversies" limitation imposed by Art. III.

"As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-1950, 20 L.Ed.2d 947, 958-959 (1968).

There can be no question that this certified class action "clearly presented" the District Court and the Court of Appeals "with a case or controversy in every sense contemplated by Art. III of the Constitution." Sosna, supra, 419 U.S. at 398, 95 S.Ct., at 557, 42 L.Ed.2d, at 540. Those courts were presented with the seniority question "in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast, supra, 392 U.S., at 95, 88 S.Ct., at 1950, 20 L.Ed.2d, at 958. The only constitutional mootness question is therefore whether, with regard to the seniority issues presented, "a live controversy (remains) at the time this Court reviews the case." Sosna, supra, 419 U.S., at 402, 95 S.Ct., at 559, 42 L.Ed.2d, at 542.

The unnamed members of the class are entitled to the relief already afforded Lee, hiring and backpay, and thus to that extent have "such a personal stake in the outcome of the controversy (whether they are also entitled to seniority relief) as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). Given a properly certified class action, Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists.8 In this case, that adversary relationship obviously obtained as to unnamed class members with respect to the underlying cause of action and also continues to obtain as respects their assertion that the relief they have received in entitlement to consideration for hiring and backpay is inadequate without further award of entitlement to seniority benefits. This becomes crystal clear upon examination of the circumstances and the record of this case.

The unnamed members of the class involved are identifiable individuals, individually named in the record. Some have already availed themselves of the hiring relief ordered by the District Court and are presently employed as OTR drivers by Bowman. Tr. of Oral Arg. 23. The conditions of that employment are now and so far as can be foreseen will continue to be partially a function of their status in the seniority system. The rights of other members of the class to employment under the District Court's orders are currently the subject of further litigation in that court. Id., at 15. No questions are raised concerning the continuing desire of any of these class members for the seniority relief presently in issue. No questions are raised concerning the tenacity and competence of their counsel in pursuing that mode of legal relief before this Court. It follows that there is no meaningful sense in which a "live controversy" reflecting the issues before the Court could be found to be absent.9 Accordingly, Bowman's mootness argument has no merit.

In affirming the District Court's denial of seniority relief to the class 3 group of discriminatees, the Court of Appeals held that the relief was barred by § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). We disagree. Section 703(h) provides in pertinent part:

"Notwithstanding any other provision of this title, 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 or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ."

The Court of Appeals reasoned that a discriminatory refusal to hire "does not affect the bona fides of the seniority system. Thus, the differences in the benefits and conditions of employment which a seniority system accords to older and newer employees is protected (by § 703(h)) as 'not an unlawful employment practice'. 495 F.2d, at 417. Significantly, neither Bowman nor the unions undertake to defend the Court of Appeals' judgment on that ground. It is clearly erroneous.

The black applicants for OTR positions composing class 3 are limited to those whose applications were put in evidence at the trial.10 The underlying legal wrong affecting them is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system. Petitioners do not ask for modification or elimination of the existing seniority system, but only an award of the seniority status they would have individually enjoyed under the present system but for the illegal discriminatory refusal to hire. It is this context that must shape our determination as to the meaning and effect of § 703(h).

On its face, § 703(h) appears to be only a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not.11 Section 703(h) certainly does not expressly purport to qualify or proscribe relief otherwise appropriate under the remedial provisions of Title VII, § 706(g), 42 U.S.C. § 2000e-5(g), in circumstances where an illegal discriminatory act or practice is found. Further, the legislative history of § 703(h) plainly negates its reading as limiting or qualifying the relief authorized under § 706(g). The initial bill reported by the House Judiciary Committee as H.R. 715212 and passed by the full House on February 10, 1964,13 did not contain § 703(h). Neither the House bill nor the majority Judiciary Committee Report14 even mentioned the problem of seniority. That subject thereafter surfaced during the debate of the bill in the Senate. This debate prompted Senators Clark and Case to respond to criticism that Title VII would destroy existing seniority systems by placing an interpretive memorandum in the Congressional Record. The memorandum stated: "Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective." 110 Cong.Rec. 7213 (1964).15 Senator Clark also placed in the Congressional Record a Justice Department statement concerning Title VII which stated: "(I)t has been asserted that Title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect." Id., at 7207.16 Several weeks thereafter, following several informal conferences among the Senate leadership the House leadership, the Attorney General and others, see Vaas, Title VII: Legislative History, 7 B.C.Ind. & Com.L.Rev. 431, 445 (1966), a compromise substitute bill prepared by Senators Mansfield and Dirksen, Senate majority and minority leaders respectively, containing § 703(h) was introduced on the Senate floor.17 Although the Mansfield-Dirksen substitute bill, and hence § 703(h), was not the subject of a committee report, see generally Vaas, Supra, Senator Humphrey, one of the informal conferees, later stated during debate on the substitute that § 703(h) was not designed to alter the meaning of Title VII generally but rather "merely clarifies its present intent and effect." 110 Cong.Rec. 12723 (1964). Accordingly, whatever the exact meaning and scope of § 703(h) in light of its unusual legislative history and the absence of the usual legislative materials, see Vaas, Supra, at 457-458, it is apparent that the thrust of the section is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act. There is no indication in the legislative materials that § 703(h) was intended to modify or restrict relief otherwise appropriate once an illegal discriminatory practice occurring after the effective date of the Act is proved as in the instant case, a discriminatory refusal to hire. This accords with the apparently unanimous view of commentators, see Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1632 (1969); Stacy, Title VII Seniority Remedies in a Time of Economic Downturn, 28 Vand.L.Rev. 487, 506 (1975).18 We therefore hold that the Court of Appeals erred in concluding that, as a matter of law, § 703(h) barred the award of seniority relief to the unnamed class 3 members.

There remains the question whether an award of seniority relief is appropriate under the remedial provisions of Title VII, specifically, § 706(g).19

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. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147, 155 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668, 676 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158, 163-164 (1971), and ordained that its policy of outlawing such discrimination should have the "highest priority," Alexander, supra, 415 U.S., at 47, 94 S.Ct. at 1019, 39 L.Ed.2d at 158; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265 (1968). Last Term's Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (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, 95 S.Ct., at 2372, 45 L.Ed.2d, at 297. 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 supporting the 1972 amendments of § 706(g) of Title VII20 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 be well be 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 his application. It can hardly be questioned that ordinarily such relief will be necessary to achieve the "make-whole" 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, 84 S.Ct. 363, 370, 11 L.Ed.2d 370, 380 (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 collective-bargaining 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).

Seniority standing in employment with respondent Bowman, computed from the departmental date of hire, determines the order of layoff and recall of employees.22 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,24 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 vacation25 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 individual who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits his inferiors.28

The Court of Appeals apparently followed this reasoning in holding that the District Court erred in not granting seniority relief to class 4 Bowman employees who were discriminatorily refused transfer to OTR positions. Yet the class 3 discriminatees in the absence of a comparable seniority award would also remain subordinated in the seniority system to the class 4 discriminatees. The distinction plainly finds no support anywhere in Title VII or its legislative history. Settled law dealing with the related "twin" areas of discriminatory hiring and discharges violative of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 Et seq., provides a persuasive analogy. "(I)t would indeed be surprising if Congress gave a remedy for the one which it denied for the other." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 849, 85 L.Ed. 1271, 1279 (1941). For courts to differentiate without justification between the classes of discriminatees "would be a differentiation not only without substance but in defiance of that against which the prohibition of discrimination is directed." Id., at 188, 61 S.Ct., at 850, 85 L.Ed., at 1280.

Similarly, decisions construing the remedial section of the National Labor Relations Act, § 10(c), 29 U.S.C. § 160(c) the model for § 706(g), Albemarle Paper, 422 U.S., at 419, 95 S.Ct., at 2372, 45 L.Ed.2d, at 29729 make clear that remedies constituting authorized "affirmative action" include an award of seniority status, for the thrust of "affirmative action" redressing the wrong incurred by an unfair labor practice is to make "the employees whole, and thus restor(e) the economic status quo that would have obtained but for the company's wrongful (act)." NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405, 411 (1969). The task of the NLRB in applying § 10(c) is "to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Carpenters v. NLRB, 365 U.S. 651, 657, 81 S.Ct. 875, 879, 6 L.Ed.2d 1, 5 (1961) (Harlan, J., concurring). And the NLRB has often required that the hiring of employees who have been discriminatorily refused employment be accompanied by an award of seniority equivalent to that which they would have enjoyed but for the illegal conduct. See, e. g., In re Phelps Dodge Corp., 19 N.L.R.B. 547, 600, and n. 39, 603-604 (1940), modified on other grounds, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) (ordering persons discriminatorily refused employment hired "without prejudice to their seniority or other rights and privileges"); In re Nevada Consolidated Copper Corp., 26 N.L.R.B. 1182, 1235 (1940), enforced, 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 (1942) (ordering persons discriminatorily refused employment hired with "any seniority or other rights and privileges they would have acquired, had the respondent not unlawfully discriminated against them"). Plainly the "affirmative action" injunction of § 706(g) has no lesser reach in the district courts. "Where racial discrimination is concerned, 'the (district) court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.' " Albemarle Paper, supra, 422 U.S., at 418, 95 S.Ct., at 2372, 45 L.Ed.2d at 297.

We are not to be understood as holding that an award of seniority status is requisite in all circumstances. The fashioning of appropriate remedies invokes the sound equitable discretion of the district courts. Respondent Bowman attempts to justify the District Court's denial of seniority relief for petitioners as an exercise of equitable discretion, but the record is its own refutation of the argument.

Albemarle Paper, supra, at 416, 95 S.Ct., at 2371, 45 L.Ed.2d, at 296, made clear that discretion imports not the court's " 'inclination, but . . . its judgment; and its judgment is to be guided by sound legal principles.' " Discretion is vested not for purposes of "limit(ing) appellate review of trial courts, or . . . invit(ing) inconsistency and caprice," but rather to allow the most complete achievement of the objectives of Title VII that is attainable under the facts and circumstances of the specific case. 422 U.S., at 421, 95 Ct., at 2373, 45 L.Ed.2d, at 298. Accordingly, the District Court's denial of any form of seniority remedy must be reviewed in terms of its effect on the attainment of the Act's objectives under the circumstances presented by this record. No less than with the denial of the remedy of backpay, the denial of seniority relief to victims of illegal racial discrimination in hiring is permissible "only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Ibid.

The District Court stated two reasons for its denial of seniority relief for the unnamed class members.30 The first was that those individuals had not filed administrative charges under the provisions of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper, and for the same reasons reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments. Albemarle Paper, supra, at 414 n. 8, 95 S.Ct., at 2370, 45 L.Ed.2d, at 294.

The second reason stated by the District Court was that such claims "presuppose a vacancy, qualification, and performance by every member. There is no evidence on which to base these multiple conclusions." Pet. forert. A54. The Court of Appeals rejected this reason insofar as it was the basis of the District Court's denial of backpay, and of its denial of retroactive seniority relief to the unnamed members of class 4. We hold that it is also an improper reason for denying seniority relief to the unnamed members of class 3.

We read the District Court's reference to the lack of evidence regarding a "vacancy, qualification, and performance" for every individual member of the class as an expression of concern that some of the unnamed class members (unhired black applicants whose employment applications were summarized in the record) may not in fact have been actual victims of racial discrimination. That factor will become material however only when those persons reapply for OTR positions pursuant to the hiring relief ordered by the District Court. Generalizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class. Rather, at such time as individual class members seek positions as OTR drivers, positions for which they are presumptively entitled to priority hiring consideration under the District Court's order,31 evidence that particular individuals were not in fact victims of racial discrimination will be material. But petitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973); Baxter v. Savannah Sugar Rfg. Corp., 495 F.2d 437, 443-444 (C.A. 5), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).32 Only if this burden is met may retroactive seniority if otherwise determined to be an appropriate form of relief under the circumstances of the particular case be denied individual class members.

Respondent Bowman raises an alternative theory of justification. Bowman argues that an award of retroactive seniority to the class of discriminatees will conflict with the economic interests of other Bowman employees. Accordingly, it is argued, the District Court acted within its discretion in denying this form of relief as an attempt to accommodate the competing interests of the various groups of employees.33

We reject this argument for two reasons. First, the District Court made no mention of such considerations in its order denying the seniority relief. As we noted in Albemarle Paper, 422 U.S., at 421 n. 14, 95 S.Ct., at 2373, 45 L.Ed.2d, at 299, if the district court declines, due to the peculiar circumstances of the particular case, to award relief generally appropriate under Title VII, "(i)t is necessary . . . that . . . it carefully articulate its reasons" for so doing. Second, and more fundamentally, it is apparent that denial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central "make whole" objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy. But, as we have said, there is nothing in the language of Title VII, or in its legislative history, to show that Congress intended generally to bar this form of relief to victims of illegal discrimination, and the experience under its remedial model in the National Labor Relations Act points to the contrary.34 Accordingly, we find untenable the conclusion that this form of relief may be denied merely because the interests of other employees may thereby be affected. "If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the Act is directed." United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (C.A. 2 1971).35 With reference to the problems of fairness or equity respecting the conflicting interests of the various groups of employees, the relief which petitioners seek is only seniority status retroactive to the date of individual application, rather than some form of arguably more complete relief.36 No claim is asserted that nondiscriminatee employees holding OTR positions they would not have obtained but for the illegal discrimination should be deprived of the seniority status they have earned. It is therefore clear that even if the seniority relief petitioners seek is awarded, most if not all discriminatees who actually obtain OTR jobs under the court order will not truly be restored to the actual seniority that would have existed in the absence of the illegal discrimination. Rather, most discriminatees even under an award of retroactive seniority status will still remain subordinated in the hierarchy to a position inferior to that of a greater total number of employees than would have been the case in the absence of discrimination. Therefore, the relief which petitioners seek, while a more complete form of relief than that which the District Court accorded, in no sense constitutes "complete relief."37 Rather, the burden of the past discrimination in hiring is with respect to competitive status benefits divided among discriminatee and nondiscriminatee employees under the form of relief sought. The dissent criticizes the Court's result as not sufficiently cognizant that it will "directly implicate the rights and expectations of perfectly innocent employees." Post, at 788. We are of the view, however, that the result which we reach today which, standing alone,38 establishes that a sharing of the burden of the past discrimination is presumptively necessary is entirely consistent with any fair characterization of equity jurisdiction,39 particularly when considered in light of our traditional view that "(a)ttainment of a great national policy . . . must not be confined within narrow canons for equitable relief deemed suitable by chancellors in ordinary private controversies." Phelps Dodge Corp. v. NLRB, 313 U.S., at 188, 61 S.Ct., at 850, 85 L.Ed., at 1280.

Certainly there is no argument that the award of retroactive seniority to the victims of hiring discrimination in any way deprives other employees of indefeasibly vested rights conferred by the employment contract. This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest.40 Tilton v. Missouri Pacific R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964) (construing §§ 9(c)(1) and 9(c)(2) of the Universal Military Training and Service Act, 1948, 50 U.S.C. App. §§ 459(c)(1) and (2), which provided that a re-employed returning veteran should enjoy the seniority status he would have acquired but for his absence in military service); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (construing the comparable provision of the Selective Training and Service Act of 1940). The Court has also held that a collective-bargaining agreement may go further, enhancing the seniority status of certain employees for purposes of furthering public policy interests beyond what is required by statute, even though this will to some extent be detrimental to the expectations acquired by other employees under the previous seniority agreement. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). And the ability of the union and employer voluntarily to modify the seniority system to the end of ameliorating the effects of past racial discrimination, a national policy objective of the "highest priority," is certainly no less than in other areas of public policy interests. Pellicer v. Brotherhood of Ry. & S.S. Clerks, 217 F.2d 205 (C.A.5 1954), cert. denied, 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1246 (1955). See also Cooper & Sobol, 82 Harv.L.Rev. at 1605.

In holding that class-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally appropriate under § 706(g), we do not in any way modify our previously expressed view that the statutory scheme of Title VII "implicitly recognizes that there may be cases calling for one remedy but not another, and owing to the structure of the federal judiciary these choices are, of course, left in the first instance to the district courts." Albemarle Paper, 422 U.S., at 416, 95 S.Ct., at 2370, 45 L.Ed.2d at 295. Circumstances peculiar to the individual case may, of course, justify the modification or withholding of seniority relief for reasons that would not if applied generally undermine the purposes of Title VII.41 In the instant case it appears that all new hirees establish seniority only upon completion of a 45-day probationary period, although upon completion seniority is retroactive to the date of hire. Certainly any seniority relief ultimately awarded by the District Court could properly be cognizant of this fact. Amici and the respondent union point out that there may be circumstances where an award of full seniority should be deferred until completion of a training or apprenticeship program, or other preliminaries required of all new hirees.42 We do not undertake to delineate all such possible circumstances here. Any enumeration must await particular cases and be determined in light of the trial courts' "keener appreciation" of peculiar facts and circumstances. Albemarle Paper, supra, at 421-422, 95 S.Ct., at 2373, 45 L.Ed.2d, at 299.

Accordingly, the judgment of the Court of Appeals affirming the District Court's denial of seniority relief to class 3 is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Reversed and remanded.

Mr. Justice STEVENS took no part in the consideration or decision of this case.

Mr. Chief Justice BURGER, concurring in part and dissenting in part.

I agree generally with Mr. Justice POWELL, but I would stress that although retroactive benefit-type seniority relief may sometimes be appropriate and equitable, competitive-type seniority relief at the expense of wholly innocent employees can rarely, if ever, be equitable if that term retains traditional meaning. More equitable would be a monetary award to the person suffering the discrimination. An award such as "front pay" could replace the need for competitive-type seniority relief. See, Ante, at 777, n. 38. Such monetary relief would serve the dual purpose of deterring wrongdoing by the employer or union or both as well as protecting the rights of innocent employees. In every respect an innocent employee is comparable to a "holder-in-due-course" of negotiable paper or a bona fide purchaser of property without notice of any defect in the seller's title. In this setting I cannot join in judicial approval of "robbing Peter to pay Paul."

I would stress that the Court today does not foreclose claims of employees who might be injured by this holding from securing equitable relief on their own behalf.

Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring in part and dissenting in part.

I agree that this controversy is not moot, and that in the context of a duly certified class action the "capable of repetition, yet evading review" criterion discussed last Term in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), is only a factor in our discretionary decision whether to reach the merits of an issue, rather than an Art. III "case or controversy" requirement. I therefore concur in Part I of the Court's opinion.

I also agree with Part II of the opinion insofar as it determines the "thrust" of § 703(h) of Title VII to be the insulation of an otherwise bona fide seniority system from a challenge that it amounts to a discriminatory practice because it perpetuates the effects of pre-Act discrimination. Ante, at 761. Therefore, I concur in the precise holding of Part II, which is that the Court of Appeals erred in interpreting § 703(h) as a bar, in every instance, to the award of retroactive seniority relief to persons discriminatorily refused employment after the effective date of Title VII. Ante, at 762.

Although I am in accord with much of the Court's discussion in Parts III and IV, I cannot accept as correct its basic interpretation of § 706(g) as virtually requiring a district court, in determining appropriate equitable relief in a case of this kind, to ignore entirely the equities that may exist in favor of innocent employees. Its holding recognizes no meaningful distinction, in terms of the equitable relief to be granted, between "benefit"-type seniority and "competitive"-type seniority.1 The Court reaches this result by taking an absolutist view of the "make whole" objective of Title VII, while rendering largely meaningless the discretionary authority vested in district courts by § 706(g) to weigh the equities of the situation. Accordingly, I dissent from Parts III and IV.

* My starting point, as it is for the Court, is the decision last Term in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). One of the issues there was the standards a federal district court should follow in determining whether victims of a discriminatory employment practice should be awarded backpay. The Court began with an observation about the nature of backpay awards and other relief under § 706(g), the basic remedial section of Title VII:

"It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts 'may' invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and owing to the structure of the federal judiciary these choices are, of course, left in the first instance to the district courts." 422 U.S., at 415-416, 95 S.Ct., at 2370-2371, 45 L.Ed.2d, at 295-296.

Backpay is the only remedy accompanying reinstatement that is mentioned specifically in Title VII. Moreover, as noted below, backpay is a remedy central to achieving the purposes of the Act. The Court in Albemarle, recognizing that equitable discretion under § 706(g) should not be left "unfettered by meaningful standards or shielded from thorough appellate review," 422 U.S., at 416, 95 S.Ct. at 2371, 45 L.Ed.2d, at 296, required of district courts the "principled application of standards (in determining backpay awards) consistent with (congressional) purposes," Id., at 417, 95 S.Ct., at 2371, 45 L.Ed.2d at 296. It identified two distinct congressional purposes implicit in Title VII. The "primary objective" was "prophylactic": " 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.' " Ibid., quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158, 163-164 (1971). The second purpose was "to make persons whole for injuries suffered on account of unlawful employment discrimination." 422 U.S., at 418, 95 S.Ct., at 2372, 45 L.Ed.2d, at 297. Because backpay served both objectives,2 The Court concluded that "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id., at 421, 95 S.Ct., at 2373, 45 L.Ed.2d, at 298-299.

The Court today, relying upon Albemarle's holding as to the "make whole" purpose of Title VII, reasons that adequate relief for a victim of discrimination ordinarily will require "slotting the victim in that position in the seniority system that would have been his had he been hired at the time of his application." Ante, at 765-766. Accordingly, the Court concludes that complete retroactive seniority should be treated like backpay and denied by a district court only for reasons which, applied generally, could not "frustrate" the congressional intent. Ante, at 771. Although the Court recognizes important differences between benefit-type seniority and competitive-type seniority, it expressly includes both in its conclusion that seniority relief presumptively should be available.3 For the reasons that follow, I think the Court's holding cannot be reconciled with 706(g) or with fundamental fairness.

When a district court orders an award of backpay or retroactive seniority, it exercises equity powers expressly conferred upon it by Congress. The operative language of § 706(g) states that upon a finding of an unlawful employment practice the district court may enjoin the practice and, further, may

"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 (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate." 42 U.S.C. 2000e-5(g) (1970 ed., Supp. IV).

The last phrase speaking to "other equitable relief" was added by a 1972 amendment, Pub.L. No. 92-261, 86 Stat. 103. As noted in Albemarle, supra, at 420-421, 95 S.Ct., at 2372-2373, 45 L.Ed.2d, at 298-299, and again by the Court today, Ante, at 764, a Section-by-Section Analysis accompanying the Conference Report on that amendment stated that it was Congress' intention in § 706(g) "to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible." 118 Cong.Rec. 7168 (1972).

The expansive language of § 706(g) and the 1972 legislative history support a general directive to district courts to grant "make whole" relief liberally and not refuse it arbitrarily. There is nothing in either of those sources, however, to suggest that rectifying economic losses from past wrongs requires the district courts to disregard normal equitable considerations. Indeed, such a requirement is belied by the language of the statute itself, which speaks of "such affirmative action as may be appropriate" and such "equitable relief as the court deems appropriate." The Section-by-Section Analysis similarly recognized that in fashioning "the most complete relief possible" the court still is to exercise "equitable powers." But in holding that a district court in the usual case should order full retroactive seniority as a remedy for a discriminatory refusal to hire without regard to the effect upon innocent employees hired in the interim, the Court to a significant extent strips the district courts of the equity powers vested in them by Congress.

In Albemarle Paper the Court read Title VII as creating a presumption in favor of backpay. Rather than limiting the power of district courts to do equity, the presumption insures that complete equity normally will be accomplished. Backpay forces the employer4 to account for economic benefits that he wrongfully has denied the victim of discrimination. The statutory purposes and equitable principles converge, for requiring payment of wrongfully withheld wages deters further wrongdoing at the same time that their restitution to the victim helps make him whole.

Similarly, to the extent that the Court today finds a like presumption in favor of granting Benefit-type seniority, it is recognizing that normally this relief also will be equitable. As the Court notes, Ante, at 773 n. 33, this type of seniority, which determines pension rights, length of vacations, size of insurance coverage and unemployment benefits, and the like, is analogous to backpay in that its retroactive grant serves "the mutually reinforcing effect of the dual purposes of Title VII," Ante, at 767 n. 27. Benefit-type seniority, like backpay, serves to work complete equity by penalizing the wrongdoer economically at the same time that it tends to make whole the one who was wronged.

But the Court fails to recognize that a retroactive grant of Competitive-type seniority invokes wholly different considerations. This is the type of seniority that determines an employee's preferential rights to various economic advantages at the expense of other employees. These normally include the order of layoff and recall of employees, job and trip assignments, and consideration for promotion.

It is true, of course, that the retroactive grant of competitive-type seniority does go a step further in "making whole" the discrimination victim, and therefore arguably furthers one of the objectives of Title VII. But apart from extending the make-whole concept to its outer limits, there is no similarity between this drastic relief and the granting of backpay and benefit-type seniority. First, a retroactive grant of competitive-type seniority usually does not directly affect the employer at all. It causes only a rearrangement of employees along the seniority ladder without any resulting increase in cost.5 Thus, Title VII's "primary objective" of eradicating discrimination is not served at all,6 for the employer is not deterred from the practice.

The second, and in my view controlling, distinction between these types of relief is the impact on other workers. As noted above, the granting of backpay and of benefit-type seniority furthers the prophylactic and make-whole objectives of the statute without penalizing other workers. But competitive seniority benefits, as the term implies, directly implicate the rights and expectations of perfectly innocent employees.7 The economic benefits awarded discrimination victims would be derived not at the expense of the employer but at the expense of other workers. Putting it differently, those disadvantaged sometimes to the extent of losing their jobs entirely are not the wrongdoers who have no claim to the Chancellor's conscience, but rather are innocent third parties.

As noted above in Part II, Congress in § 706(g) expressly referred to "appropriate" affirmative action and "other equitable relief as the court deems appropriate." And the 1972 Section-by-Section Analysis still recognized that the touchstone of any relief is equity. Congress could not have been more explicit in leaving the relief to the equitable discretion of the court, to be determined in light of all relevant facts and circumstances. Congress did underscore "backpay" by specific reference in § 706(g), but no mention is made of the granting of other benefits upon ordering reinstatement or hiring. The entire question of retroactive seniority was thus deliberately left to the discretion of the district court, a discretion to be exercised in accordance with equitable principles.

"The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944).

"Moreover, . . . equitable remedies are a special blend of what is necessary, what is fair, and what is workable. . . ." Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151, 161 (1973) (opinion of Burger, C. J.).

"In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests . . . ." Id., at 201, 93 S.Ct., at 1469, 36 L.Ed.2d 161.

The decision whether to grant competitive-type seniority relief therefore requires a district court to consider and weigh competing equities. In any proper exercise of the balancing process, a court must consider both the claims of the discrimination victims and the claims of incumbent employees who, if competitive seniority rights are awarded retroactively to others, will lose economic advantages earned through satisfactory and often long service.8 If, as the Court today holds, the district court may not weigh these equities much of the language of § 706(g) is rendered meaningless. We cannot assume that Congress intended either that the statutory language be ignored or that the earned benefits of incumbent employees be wiped out by a presumption created by this Court.9

The Court's concern to effectuate an absolutist conception of "make whole" should be tempered by a recognition that a retroactive grant of competitive-type seniority touches upon other congressional concerns expressed in Title VII. Two sections of the Act, although not speaking directly to the issue, indicate that this remedy, unlike bankpay and benefit-type seniority, should not be granted automatically.

The first section, § 703(h), has been discussed in the Court's opinion. As there noted, the "thrust" of that section is the validation of seniority plans in existence on the effective date of Title VII. The congressional debates leading to the introduction of § 703(h) indicate a concern that Title VII not be construed as requiring immediate and total restitution to the victims of discrimination regardless of cost in terms of other workers' legitimate expectations. Section 703(h) does not restrict the remedial powers of a district court once a discriminatory practice has been found, but neither are the concerns expressed therein irrelevant to a court's determination of "appropriate" equitable relief under § 706(g). Although the Court of Appeals read far too much into § 703(h), it properly recognized that the section does reflect congressional concern for existing rights under a "bona fide seniority or merit system."

Also relevant is § 703(j), which prohibits any interpretation of Title VII that would require an employer to grant "preferential treatment" to any individual because his race is underrepresented in the employer's work force in comparison with the community or the available work force.10 A grant of competitive seniority to an identifiable victim of discrimination is not the kind of preferential treatment forbidden by § 703(j) but, as counsel for the Steelworkers admitted at oral argument, it certainly would be "preferential treatment."11 It constitutes a preference in the sense that the victim of discrimination henceforth will outrank, in the seniority system, the incumbents hired after the discrimination. Moreover, this is a preference based on a fiction, for the discrimination victim is placed ahead of others not because of time actually spent on the job but "as if" he had worked since he was denied employment. This also requires an assumption that nothing would have interrupted his employment, and that his performance would have justified a progression up the seniority ladder.12 The incumbents, who in fact were on the job during the interim and performing satisfactorily, would be seriously disadvantaged. The congressional bar to one type of preferential treatment in § 703(j) should at least give the Court pause before it imposes upon district courts a duty to grant relief that creates another type of preference.

In expressing the foregoing views, I suggest neither that Congress intended to bar a retroactive grant of competitive-type seniority in all cases,13 nor that district courts should indulge a presumption against such relief.14 My point instead is that we are dealing with a congressional mandate to district courts to determine and apply equitable remedies. Traditionally this is a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court. At this time it is necessary only to avoid imposing, from the level of this Court, arbitrary limitations on the exercise of this traditional discretion specifically explicated in § 706(g). There will be cases where, under all of the circumstances, the economic penalties that would be imposed on innocent incumbent employees will outweigh the claims of discrimination victims to be made entirely whole even at the expense of others. Similarly, there will be cases where the balance properly is struck the other way.

The Court virtually ignores the only previous judicial discussion directly in point. The Court of Appeals for the Sixth Circuit, recently faced with the issue of retroactive seniority for victims of hiring discrimination, showed a fine appreciation of the distinction discussed above. Meadows v. Ford Motor Co., 510 F.2d 939 (1975), cert. pending, No. 74-1349.15 That court began with the recognition that retroactive competitive-type seniority presents "greater problems" than a grant of backpay because the burden falls upon innocent incumbents rather than the wrongdoing employer. Id., at 949.16 The court further recognized that Title VII contains no prohibition against such relief. Then, noting that "the remedy for the wrong of discriminatory refusal to hire lies in the first instance With the District Judge," Ibid. (emphasis added), the Court of Appeals for the Sixth Circuit stated:

"For his guidance on this issue we observe . . . that a grant of retroactive seniority would not depend solely upon the existence of a record sufficient to justify back pay . . . . The court would, in dealing with job (I. e., competitive-type) seniority, need also to consider the interests of the workers who might be displaced . . . . We do not assume . . . that such reconciliation is impossible, but as is obvious, we certainly do foresee genuine difficulties. . . ." Ibid.

The Sixth Circuit suggested that the District Court seek enlightenment on the questions involved in the particular fact situation, and that it should allow intervention by representatives of the incumbents who stood to be disadvantaged.17

In attempted justification of its disregard of the explicit equitable mandate of § 706(g) the Court today relies almost exclusively on the practice of the National Labor Relations Board under § 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c).18 It is true that in the two instances cited by the Court, and in the few others cited in the briefs of the parties,19 the Board has ordered reinstatement of victims of discrimination "without prejudice to their seniority or other rights and privileges." But the alleged precedents are doubly unconvincing. First, in none of the cases is there a discussion of equities either by the Board or the enforcing court. That the Board has granted seniority relief in several cases may indicate nothing more than the fact that in the usual case no one speaks for the individual incumbents. This is the point recognized by the court in Meadows, and the impetus for its suggestion that a representative of their interests be entertained by the district court before it determines "appropriate" § 706(g) relief.

I also suggest, with all respect, that the Court's appeal to Board practice wholly misconceives the lesson to be drawn from it. In the seminal case recognizing the Board's power to order reinstatement for discriminatory refusals hire, this Court in a reasoned opinion by Mr. Justice Frankfurter was careful to emphasize that the decision on the type and extent of relief rested in the Board's discretion, subject to limited review only by the courts.

"But in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. . . .

". . . All these and other factors outside our domain of experience may come into play. Their relevance is for the Board, not for us. In the exercise of its informed discretion the Board may find that effectuation of the Act's policies may or may not require reinstatement. We have no warrant for speculating on matters of fact the determination of which Congress has entrusted to the Board. All we are entitled to ask is that the statute speak through the Board where the statute does not speak for itself." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194-196, 61 S.Ct. 845, 852-853, 85 L.Ed. 1271, 1283-1284 (1941) (emphasis added).

The fallacy of the Court's reliance upon Board practice is apparent: the district courts under Title VII stand in the place of the Board under the NLRA. Congress entrusted to their discretion the appropriate remedies for violations of the Act, just as it previously had entrusted discretion to the Board. The Court today denies that discretion to the district courts, when 35 years ago it was quite careful to leave discretion where Congress had entrusted it. It may be that the district courts, after weighing the competing equities, would order full retroactive seniority in most cases. But they should do so only after determining in each instance that it is appropriate, and not because this Court has taken from them the power granted by Congress to weigh the equities.

In summary, the decision today denying district courts the power to balance equities cannot be reconciled with the explicit mandate of § 706(g) to determine "appropriate" relief through the exercise of "equitable powers." Accordingly, I would remand this case to the District Court with instructions to investigate and weigh competing equities before deciding upon the appropriateness of retroactive competitive-type seniority with respect to individual claimants.20