Local 28, Sheet Metal Workers v. Equal Employment Opportunity Commission Brief Amicus Curiae

    No. 84-1656

In the

j^uprrmr Court nf %  Imtrft Stairs
October Term, 1985

L ocal 28, S heet Metal Workers, etc., et al.,
Petitioners,

v.
E qual E mployment Opportunity C ommission, et al.

O N  W R IT  OP CER TIO R A R I TO T H E  U N IT E D  STA TES 

C O U R T OP A PPEA L S PO R  T H E  SECO N D  C IR C U IT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AMERICAN JEWISH 

CONGRESS, AMERICAN JEWISH COMMITTEE, NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED 
PEOPLE, MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., NATIONAL URBAN LEAGUE, 
INC., PUERTO RICAN LEGAL DEFENSE AND EDUCATION 

FUND, INC., ASIAN AMERICAN LEGAL DEFENSE AND 
EDUCATION FUND, INC., THE NEW JEWISH AGENDA, 
AND THE COMMISSION ON SOCIAL ACTION OF THE 

UNION OF AMERICAN HEBREW CONGREGATIONS AND 
THE CENTRAL CONFERENCE OF AMERICAN RABBIS

J ulius L. 'Chambers 
R onald L. E llis 
Clyde E. Murphy 
P enda D. H air 
E ric S chnapps®*

NAACP Legal Defense and 
Educational Fund, Inc. 

16tli Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel fo r  Am ici
* Counsel of Record

(A complete list of counsel appears on p. ii)



QUESTIONS PRESENTED

(1) Does Title VII forbid the use of race 
conscious numerical remedies in a 
case where they are necessary to 
redress, prevent or deter racial 
discrimination?

(2) Was the race conscious numerical 
remedy in this case reasonably framed 
to prevent a continuation of proven 
intentional discrimination?

i



List of Counsel
Samuel Rabinove 
Richard T. Foltin

American Jewish Committee
165 E. 56th Street
New York, New York 10002

Theodore R. Mann 
Marvin E. Frankel

American Jewish Congress
15 E. 84th Street
New York, New York 10028

Grover G. Hankins
National Association for 
the Advancement of Colored People 
186 Remsen Street 
Brooklyn, New York 11201

Antonia Hernandez 
Theresa Fay Bustillos 
Richard P. Fajardo

Mexican American Legal Defense 
and Educational Fund, Inc.
634 S. Spring Street 
11th Floor
Los Angeles, California 90014

Linda Flores 
Kenneth Kimerling

Puerto Rican Legal Defense 
and Education Fund, Inc.
99 Hudson Street
New York, New York 10013

-  x l -



Margaret Fung
Asian American Legal Defense 
and Education Fund 
99 Hudson Street 
New York, New York 10013

David Saperstein
Commission on Social Action of the 
Union of American Hebrew 
Congregations and the Central 
Conference of American Rabbis 
2027 Massachusetts Ave., N.W. 
Washington, D.C. 20036

iii



TABLE OF CONTENTS

Questions Presented ............... i
List of Counsel . .................. ii
Table of Authorities ............. v
Interest of Amici ...............   1
Summary of Argument ..............  15
Argument .......................... 17

I. Title VII Permits the Use of 
Numerical Remedies Necessary 
to Redress, Prevent, or 
Deter Discrimination ......  17
A. Judicial Authority to 

Direct "Affirmative
Action" ................. 21

B. The Language of Sections
703 ( j ) and 706(g)......  31

C. The Legislative History of
Title VII ..............  36

II. The Race Conscious Remedy
In This Case Was Appropriately 
Framed to Prevent and Deter 
Further Discrimination ....  48

Conclusion ..................  64

Page

IV



TABLE OF AUTHORITIES

Cases:
Page

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ____ 15,21,22,23

Alexander v. Gardner-Denver
Co. , 415 U*.S. 36 ( 1974) .....  21

Brown v. Board of Education,
347 U.S. 483 ( 1954) .........  26,51

Cooper v. Aaron, 358 U.S. 1
(1958) ........................ 51

Crockett v. Green, 388 F.
Supp. 912 (E.D. Wis.
1975) ......................... 19

Firefighters v. Stotts, 81
L. Ed . 2d 483 (1984) ........... 19

Franks v. Bowman Transpor­
tation Co., 424 U.S.
747 (1976)   23,24,27

International Association
of Machinists v. NLRB,
311 U.S. 72 (1940) ........... 29

Louisiana v. United States,
380 U.S. 145 (1965) .......... 51

NLRB v. Seven-Up Bottling
Co., 344 U.S. 344 (1952) ....  28

v



NLRB v. United Mine Workers,
355 U.S. 453 (1958) .......... 29

Phelps Dodge Corp. v. NLRB,
313 U.S. 177 ( 1941 ) .......... 29

South Carolina v. Katzenbach,
383 U.S. 301 ( 1966) .......... 26

State Commission for Human 
Rights v. Farrell, 252 
N.Y.S. 2d 649 (Sup. Ct.
N.Y. 1964) ... ..............  51-52

Steele v. Louisville & Nashville 
Railroad, 323 U.S. 197 
( 1 944)     25

Swann v. Charlotte-Mecklen-
burg Board of Education,
402 U.S. 1 (1971)    27

United Steelworkers v. Weber,
443 U.S. 193 (1979) ......  16,32,38,

40,46
Virginia Electric & Power 

Co. v. NLRB, 319 U.S.
533 ( 1943) ................ 28,29

Other Authorities
Title VII, Civil Rights Act

of 1964 ......................  passim

Page

Civil Rights Act of 1957 .......... 25

-vi-



Civil Rights Act of 1960 .......... 25
National Labor Relations

Act .......................... 27-30

Z *2£

Section 703{j), Title VII ... 16,31-33,35,
44-47

Section 706 (g ),* Title VII ... 19,21,22,27,
30,33-35,44

Section 10(c), National
Labor Relations Act .......... 27

H.R. Rep. 1370, 87th Cong.,
2d Sess. ......................  24

H.R. Rep. 914, 88th Cong.,
1st Sess.................  24,26,39

110 Cong. Rec. (1964)   26,27,39-46
Exectutive Order 11246 ............ 25



INTEREST OF AMICI*

The framing of this brief has 
required amici, as the resolution of this 
case will require this Court, to consider 
with care the circumstances in which 
numerical remedies are necessary to 
prevent, redress or deter violations of 
Title VII, and to distinguish such 
situations from numerical remedies which 
serve no such purposes and which a number 
of amici regard as objectionable for that 
and other reasons. All of the amici 
support vigorous enforcement of Title VII, 
and believe that Title VII should not be 
construed in a way that would leave 
employment discrimination on the basis of 
race, sex, religion or national origin *

* Letters from the parties consenting to 
the filing of this brief have been filed 
with the Clerk.



unremedied, undeterred, or unpreventable. 
We recognize that the enforcement of Title 
VII has involved a variety of practical 
problems, and believe that here, as in 
other areas of the law, the views of trial 
courts regarding the necessary remedial 
measures are entitled to substantial 
weight.

Several of the amici have long 
opposed, and continue to reject, inflex­
ible numerical devices whose purpose is to 
allocate jobs or other benefits on the 
assumption that minorities or women are 
inherently entitled to a particular share. 
But these amici object, as well, to the 
attempt of the Solicitor General to label 
as "quotas" any and all affirmative 
numerical remedies, regardless of whether 
those remedies may be essential to 
eliminate and correct discrimination on 
the basis of race, sex, religion or



3

national origin. The government's approach 
would pervert legitimate concerns about 
the use of unneeded numerical remedies 
into a major rigid rule that would at 
times permit continued discrimination 
against minorities and women.

The amici who join in this brief 
adhere to distinct approaches to the use 
of race or sex conscious numerical 
measures. We share, however, a common 
position, set out below, with regard to 
the specific case now before the Court. We 
express no joint view with regard to legal 
and factual issues which are not necessary 
for the disposition of this case.

The NAACP Legal Defense and Educa­
tional Fund, Inc., is a non-profit 
corporation formed to assist Blacks to 
secure their constitutional and civil 
rights by means of litigation. Since 1965 
the Fund's attorneys have represented



4

plaintiffs in several hundred employment 
discrimination actions under Title VII and 
the Fourteenth Amendment, including many 
of the employment discrimination cases 
decided by this Court. in attempting to 
frame remedies to redress, prevent and 
deter discrimination, we have repeatedly 
found, as have the courts hearing those 
cases, that race conscious numerical 
remedies are for a variety of pragmatic 
reasons a practical necessity. in some 
instances, as in Sheet Metal Workers v. 
EEOC, numerical remedies are essential to 
ending ongoing intentional discrimination. 
In other circumstances, such as Fire­
fighters v, Cleveland, such remedies are a 
practical necessity in resolving by 
settlement disputes as to the identities 
of direct or indirect victims of dis­
crimination. We believe that effective
enforcement of Title VII would at times be



5

impossible unless numerical orders remain 
among the arsenal of remedial devices 
available to the federal courts.

The American Jewish Committee is a 
national organization of approximately 
50,000 members. AJC was founded in 1906 
for the purpose of protecting the civil 
and religious rights of Jews. It is AJC's 
conviction that the security and the 
constitutional rights of Jewish Americans 
can best be protected by helping to 
preserve the security and the consti­
tutional rights of all Americans, irres­
pective of race, creed or national origin, 
including, specifically, elimination of 
discrimination in employment and educa­
tional opportunities for all Americans. 
Experience has demonstrated that the legal 
requirement of non-discrimination is by 
itself not sufficient to erase, within the 
foreseeable future, the accumulated



6

burdens imposed on the disadvantaged in 
America who have historically suffered 
from systematic discrimination. AJC 
believes that affirmative action programs 
-- voluntary and, in certain instances, 
compelled programs to recruit, train and 
upgrade those who have been historically 
disadvantaged or the victims of discrimi­
nation -- are in accord with the American 
tradition of giving special assistance to 
categories of people on whom society has 
imposed hardship and injustice or who have 
special needs that could not otherwise be 
met.

Accordingly, AJC is committed to 
specific numerical goals and timetables, 
even while maintaining that quotas are not 
an appropriate remedy and, in fact, are in 
violation of constitutional and statutory 
provisions. AJC believes that quotas, as a 
rigid prescribed distribution of benefits



7

and opportunities, are qualitatively 
different from other forms of race-con­
scious relief because they sacrifice 
fundamental principles of equality, 
fairness and individual rights. Quotas, 
in AJC's view, downgrade individual merit, 
set one group against another, and cannot 
be reconciled with genuine equal opportu­
nity for all. As opposed to a quota, 
however, a specific numerical goal is a 
realistic objective arrived at not only by 
reference to the proportional represen­
tation of a minority group in the general 
population, but also by reference to the 
number of vacancies expected and the 
number of qualified or qualifiable 
applicants available in the relevant job 
market. Moreover, goals are flexible, can 
be adjusted if unrealistic and require 
only a good faith effort by employers to 
obtain an appropriate representation of



8

qualified or qualifiable members of 
minority groups. AJC believes that the 
court of appeals correctly rejected 
petitioners' "attempt to characterize the 
membership goals as a permanent quota, 
because the provision at issue is clearly 
not a quota but a permissible goal." 7 53 
F.2d at 1186. The remedy imposed below 
embodies the flexibility that is char­
acteristic of reasonable goals and 
timetables, in contrast to rigid quotas. 
All that is needed here is the vital 
element which was absent heretofore, i.e., 
a good faith effort to meet goals and 
timetables. If that good faith effort 
were convincingly demonstrated, and were 
petitioners still not able to meet the 
29% goal, although coming reasonably close 
to it, this amicus maintains that the



9

order of the court below, properly 
understood, should be considered satis­
fied .

The American Jewish Congress is a 
national organization of American Jews 
founded in 1918 and concerned with the 
preservation of the security and consti­
tutional rights of all Americans. Since 
its creation, it has vigorously opposed 
racial and religious discrimination in 
employment, education, housing and public 
accommodations and has supported programs 
which would increase opportunities for 
disadvantaged minorities to speed the day 
when all Americans may enjoy full equality 
without regard to race.

The National Association for the 
Advancement of Colored People ("NAACP") is 
a New York non-profit membership corpo­



10

ration. Its principal aims and objectives
may best be understood by reference to its
Articles of Incorporation:

... voluntarily to prompt equality of 
rights and eradicate caste or race 
prejudice among the citizens of the 
United States; to secure for them 
impartial suffrage; and to increase 
their opportunities for securing 
justice in the courts, education for 
their children, employment according 
to their ability, and complete 
equality before the law.

To ascertain and publish all 
facts bearing upon these subjects and 
to take any lawful action thereon; 
together with any and all things 
which may lawfully be done by a 
membership corporation....

The NAACP has a long-standing history of 
participating in the Untied States Supreme 
Court, both as a party and as amicus 
curiae, in cases presenting constitutional 
and statutory claims of racial discrimi­
nation. The NAACP is vitally concerned
with the issues raised in this appeal.



The Mexican American Legal Defense 
and Educational Fund, Inc. ("MALDEF") is a 
national civil rights organization 
established in 1967. Its principal 
objective is to secure the civil rights of 
Hispanics living in the United States, 
through litigation and education. MALDEF 
believes that Title VII should and must 
apply with equal force to members of all 
racial and ethnic groups. MALDEF also 
believes, however, that public and private 
employers are permitted under Title VII to 
take reasonable voluntary measures, such 
as goals and timetables, to correct 
historical underrepresentation of racial 
and ethnic minorities in the workforce. In 
support of these principles and goals, 
MALDEF has participated as amicus curiae 
and as counsel of record in numerous cases 
before the Court. Wygant v. Jackson Board
of Education, No. 84-1340 (MALDEF Amicus



12

Curiae); Firefighters Local Union NO. 1784
v. Stotts, _____ U.S. ___, 104 S.Ct. 2576
( 1 9 8 4 ).

The National Urban League, Incor­
porated, is a charitable and educational 
organization organized as a not-for-profit 
corporation under the laws of the State of 
New York. For more than 75 years, the 
League and its predecessors have addressed 
themselves to the problems of disadvan­
taged minorities in the United States by 
improving the working conditions of blacks 
and other minorities, and by fostering 
better race relations and increasing 
understanding among all persons.

Puerto Rican Legal defense and 
Education Fund, Inc. ("PRLDEF") is a New 
York not-for-profit corporation, autho­
rized to practice law by the State of New 
York. The PRLDEF's primary purpose is to 
protect and advance the constitutional and



13

civil rights of Puerto Ricans and other 
Hispanics. In furtherance of this 
purpose, the PRLDEF represents both 
individuals and classes of persons who 
challenge employment discrimination 
against Puerto Ricans and other Hispanics. 
The PRLDEF has also filed numerous briefs 
as amicus curiae in employment discrimi­
nation litigation. During its thirteen 
year history, much of the PRLDEF's 
litigation, in federal and state courts, 
has centered on Title VII litigation.

The Asian American legal Defense and 
Education Fund ("AALDEF") is a non-profit 
civil rights organization that employs 
legal and educational methods to address 
critical issues affecting Asian Americans. 
AALDEF's legal and educational work 
against racial discrimination in the job 
market resulted from the historic exclu­
sion of Asians from the mainstream of



14

American business life and the legacy of 
overt economic discrimination sanctioned 
by law.

New Jewish Agenda is a national 
non-profit, membership organization that 
seeks to promote traditional, progressive 
Jewish religious and secular values of 
peace and social and economic justice and 
the Talmudic principle of "Tikkun 01am," 
the just reordering of the universe. 
Consistent with these beliefs, NJA 
supports minimum quotas as a necessary 
mechanism for achieving true equality of 
opportunity and for overcoming a history 
of discriminatory practices in certain 
circumstances including, but not limited 
to, the factual situation in this case.

The Commission on Social Action of 
the Union of American Hebrew Congregations 
and the Central Conference of American 
Rabbis represents over 1 million Jews in



15

the United States and Canada. The 
Commission has long been committed to the 
furtherance of civil rights and civil 
liberties for all Americans.

SUMMARY OF ARGUMENT
I. Title VII permits a court to 

order numerical remedies when such 
remedies are needed to redress, prevent or 
deter discrimination. In authorizing 
courts to direct "affirmative relief", 
Congress "armed the courts with full 
equitable powers". Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 418 (1975).

The legislative history of Title VII 
does not reveal any congressional intent 
to bar numerical remedies in every case, 
regardless of whether it might be impos­
sible without such remedies to redress, 
prevent or deter discrimination in some 
instances. Although Title VII supporters 
on several occasions stated the act did



16

not impose "quotas", it is clear that what 
both supporters and opponents were 
concerned about was whether Title VII 
itself created a duty to maintain a 
"racially balanced" work force. United 
Steelworkers v, Weber, 443 U.S. 193,205 
(majority opinion), 235-47 (Rehnquist, J., 
dissenting ) (1979). The specific con­
gressional statements relied on by the 
Solicitor General were expressly intended 
as denials that Title VII required "quotas 
for racial balance", not as a discussion 
of the availability of numerical remedies 
to redress, prevent or deter unlawful 
discrimination. Section 703(j) , which 
forbids imposition of preferential 
treatment for "racial balance", spells out 
precisely the meaning of congressional 
statements that Title VII did not require 
"quotas".



17

II. The petitioners in this case has 
a 20 year history of intransigent and 
successful violation of state and federal 
injunctions against discrimination. When 
specific discriminatory practices were 
forbidden, petitioners repeatedly devised 
new discriminatory schemes. The district 
court properly concluded that it was not 
feasible to foresee and forbid every 
conceivable device which petitioner might 
in the future utilize to violate the law, 
and that the ordering of a numerical 
remedy was essential to bring an end to 
continued discrimination.

ARGUMENT
I. TITLE VII DOES NOT FORBID THE USE OF 

NUMERICAL REMEDIES NECESSARY TO 
REDRESS, PREVENT OR DETER DISCRIMI­
NATION

For almost twenty years federal 
district judges responsible for framing 
decrees to enforce Title VII have con-



18

eluded that the use of numerical remedies 
was necessary to redress, prevent or 
deter discrimination under the circum­
stances of the specific cases before 

1
them. As occurs in all areas of the law, 
the fashioning of these remedies has been 
an essentially practical task, reflecting 
the particular types of violations that 
had occurred or seemed likely to recur. 
Numerical orders have generally been 
regarded as the remedy of last resort, 
often used only when milder remedies had 
failed, at times accompanied by candid 
expressions of reluctance by the courts. 
The pragmatic foundation of this practice 
is underscored by the fact that no

A description of the types of cases in 
which such remedies have been found 
necessary is set forth in part IA of the 
Brief Amicus Curiae of the NAACP Legal 
Defense Fund, et al., in Local 93, Fire­
fighters v. creveTand, No. 84-1999.



19

appellate court has ever imposed a 
numerical remedy where the district court 
concluded such remedies were unneeded.

The interpretation which petitioners
and the Solicitor ask the Court to read
into Title VII is thus one of enormous
practical importance. For two decades
judges across the nation have found in a
variety of circumstances that numerical
remedies were "the only possible means to
provide relief for [unlawful] discrimi- 

2
nation." To hold, as petitioners urge, 
that Title VII absolutely forbids such 
remedies, would raise serious questions 
about the enforceability of Title VII 
itself.

Petitioners insist that this critical 
issue was summarily resolved by two 
paragraphs in Firefighters v. Stotts, dis-

Crockett v. Green, 388 F. Supp. 912, 921 
(E.D. Wis. 1975) .

2



20

cussing "1 the policy behind § 706(g) of
Title VII II 81 L.Ed.2d 483, 499 (1984).
The dec is ion in Stotts did not, however,
suggest that any provision in Title VII
forbade the use of any category of
j ud ic ial decree that might in fact be
necessary in some instances to promptly
redress, prevent or deter violations of
Title VII itself. Nor did Stotts attempt 
to delineate what types of orders were 
being referred to by members of Congress 
who expressed objections to what they 
called "quotas." For these reasons we 
believe Stotts is not dispositive of this 
appeal. If, as petitioners urge, courts 
are forbidden to use any numerical remedy 
in any Title VII case, regardless of 
whether that remedy may be essential to 
redress, prevent or deter discrimination,



21

that limitation must be found in the 
language or legislative history of Title 
VII itself.

A. Judicial Authority to Direct 
'* Affirmative A c 11 o n "

When Congress adopted Title VII it 
mandated that enforcement of that law be 
given the "highest priority." Alexander 
v. Gardner-Denver Co., 415 U.S. 36, 47 
(1 974). Where a violation of the law has 
been established, section 706(g) author­
izes a court, not merely to forbid future 
illegality, but also to "order such 
affirmative action as may be appropriate 
... or any other equitable relief as the 
court deems appropriate." 42 U.S.C. § 
2000e-5(g). Albemarle Paper Co. v. Moody, 
422 U.S. 405 (1975), correctly char­
acterized section 706(g) as "arm[ing] the 
courts with full equitable powers." 422 
U.S. at 418. In exercising those powers,



22

Albemarle recognized, the courts are to be 
required to do whatever may be necessary 
to promptly redress, prevent and deter 
discrimination; there may be practical 
obstacles to such thorough enforcement, 
but Title VII itself contains no such 
encumbrances:

[I]t is the historic purpose of 
equity to "secur[e] complete justice" 
... "Where federally protected
rights have been invaded, the ... 
courts will be alert to adjust their 
remedies so as to grant the necessary 
relief" ... Where racial dfscrfmi- 
nation is concerned, "the [district] 
court has not merely the power but 
the duty to render a decree which 
will so far as is possible eliminate 
the d i scr iminatory ef fects of the 
past as well as bar like discrimi­
nation in the future."

422 U.S. at 418. (Emphasis added) 
"Congress' purpose in vesting a variety of 
'discretionary' powers in the courts was 
... to make possible the fashion]ing] [of] 
the most complete relief possible." 420
U.S. at 421 (Emphasis added).



23

This congressional intent to provide 
federal courts with a full arsenal of 
enforcement techniques led this Court in 
Franks v. Bowman Transportation Co., 424 
U.S. 747 (1976), to reject an argument 
that Title VII stripped the courts of any 
authority to order rightful place senior­
ity. Although there was some dispute 
regarding when such relief was appro­
priate, every member of the Court agreed 
that Title VII did not contain "a bar, in 
every case, to the award of retroactive 
seniority relief." 424 U.S. at 781-82 
(Powell, J., concurring and dissenting). 
Franks emphasized that the "broad equi­
table discretion" established by Title 
VII, 424 U.S. at 763, was to be exercised 
in a pragmatic manner.

In equity, as nowhere else, courts 
... look to the practical realities 
and necessities...." [AJttainment of 
a great national policy ... must not



24

be confined within narrow canons ... 
suitable ... in ordinary private 
controversies."

424 U.S. at 777-78 and n.39.
Congress' decision to confer on 

federal courts such broad enforcement 
authority, unrestricted by any per se 
limitations, is readily understandable. 
When Congress framed Title VII in 1964, it 
was all too aware of the failure of 
earlier prohibitions against discrimina­
tion. The House Report expressly noted
that discrimination had not been ended by

3
state antidiscrimination legislation. 
Proponents of the legislation noted 
continuing discriminatory practices by

H.R. Rep. 914, 88th Cong., 1st Sess., 
reprinted in Legislative History of Titles 
VII and XI of Civil Rights Act of 1964, 
1018, 2149-50 ("Legislative History"); 
H.R. Rep. 1370, 87th Cong., 2d Sess., 
Legislative History 2159; 110 Cong. Rec. 
7217 (remarks of Sen. Clark).



25

unions, despite decisions of this Court
that such discrimination violated a

5
union's duty of fair representation. 
Executive Order 11246, earlier versions of 
which dated from 1941, had had little 
visible impact, although applicable to 
large portions of American industry.

In light of the failure of other 
remedies, Congress understandably refused 
to place any restrictions on the enforce­
ment authority of federal judges. That 
decision was doubtless reinforced by the 
extraordinary and well publicized dif­
ficulties then being encountered by 
federal judges in enforcing other civil 
rights of racial minorities. In 1957 and 
1960 Congress had adopted legislation

4

Legislative History, p. 2158.
Steele v. Louisville & Nashville Railroad, 
323 U.S. 192 (1944) .

5



26

intended to eliminate racial discrimina­
tion in voting; in 1964, however, Congress 
recognized that discriminatory election 
officials remained intransigent, and that 
"present procedures do not provide

6
adequate remedies". £f. South Carolina v. 
Katzenbach, 383 U.S. 301 , 31 1-1 3 (1966). 
The debates on the 1964 Civil Rights Act 
were also replete with references to the 
obstinate refusal of school officials, 
some 10 years after Brown v. Board of 
Education, 347 U.S.483 ( 1954), to even
begin to comply with their constitutional

110 Cong. Rec. 6529-30 (Sen. Humphrey); 
see also id. at 1593 (Rep. Farbstein) 
(remedies Tn 1957 and 1960 civil rights 
acts inadequate), 1535 (Rep. Celler) 
(same), 144690 (Bipartisan Newsletter) 
(same); H.R. Rep. No. 914, 88th Cong., 1st 
Sess. , Legislative History, pp. 2019, 
2123-25.



27

obligation to end de jure segregation. 
Cf. Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 13 (1971). In 
framing Title VII, Congress had good 
reason to fear that this legislation would 
be met by the same intransigence and 
evasion that for a century had frustrated 
enforcement of the Fourteenth and Fif­
teenth Amendments. Against that back­
ground the sweeping authority granted to 
the courts by section 706(g) is entirely 
understandable.

Section 706(g) was modeled after, 
although somewhat broader than, section 
10(c) of the National Labor Relations Act. 
Franks v. Bowman Transportation Co., 424 
U.S. at 768-770 and n.29. An order of the 
NLRB, this Court has repeatedly held, is

7 110 Cong. Rec. 1518 (Rep. Celler), 1600
(Rep. Daniels), 6539-42 (Sen. Humphrey); 
H.R. Rep. No. 914, pt. 2, Legislative 
History, pp. 2138-42.

7



28

to be upheld "unless it can be shown that
the order is a patent attempt to achieve
ends other than those which can fairly be
said to effectuate the policies of the
Act." NLRB v. Seven-Up Bottling Co., 344
U.S. 344, 357 (1952); Virginia Electric &
Power Co. v. NLRB, 319 U.S. 533, 540
(1943). In fashioning remedial orders the
Board is to be guided, not by any per se
rules in the NLRA, but by "enlightenment
gained from experience." NLRB v. Seven-Up
Bottling C o . , 344 U.S. at 347 . The Court
emphasized that the Board's authority to
provide affirmative relief was a mandate
to develop whatever remedies experience
might demonstrate were needed:

[I]n 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 situa­
tions. Congress met these diffi­



29

culties by leaving the adaptation of 
means to [that] end to the empiric 
process of administration.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 
194 (1941). In fashioning specific
remedies the Board was not required to act 
with surgical precision, but was permitted 
to paint with a broad brush "to attain 
just results in . . . complicated situa­
tions . . . through flexible procedural
devices." icL at 198-99. Enforcement 
orders under the NLRA were never limited 
to "make whole" redress, but included as
well orders intended to prevent or deter

8
future violations.

See, e.g., Phelps Dodge Corp. v. NLRB, 313 
U.S. 177, 188 ( 1941j (order to "neutralize" 
the effects of past violations); Virginia 
Power & Electric Co. v. NLRB, 319 U.S. 
5 3 3 , 543 (194lfj (order to "deprive an
employer of advantages accruing from" a 
violation); NLRB v. United Mine Workers, 
355 U.S. 453, 456 ( 19SSTforder to dis- 
sipatediscriminatory "atmosphere" created 
by past violation); International Asso­
ciation of Machinists v. NLRB, 311 U.S. 
72, 82 (1940) ( order to" expunge the effects



30

In modeling section 706(g) after the 
NLRA, Congress thus chose to reject 
precisely the sort of constricted view of 
remedies which petitioners now advance. 
The NLRB enjoyed, and Congress elected to 
give to the courts in Title VII cases, 
broad authority to take whatever steps 
experience might show were necessary to 
promptly redress, prevent or deter 
violations of the law. Enacted as it was 
in light of the established interpretation 
of the NLRA, section 706(g) must be 
understood as a mandate to the courts to 
develop whatever remedial devices might 
prove necessary and efficacious. Section 
706(g), like the NLRA, does not require 
that remedies be framed with the precision 
appropriate for ordinary tort or contract 
litigation, particularly where such a

of past discrimination).



31

requirement would have the effect of 
impeding or delaying redress for or 
prevention or deterrence of violations of 
the vital national policies that Title 
VII, as well as the National Labor 
Relations Act, embodies.

B. The Language of Sections 703(j) 
and 706(g )

Local 28 argues that the asserted
limitation on Title VII remedies is found
in section 703(j). That provision states:

Nothing contained in this subchapter 
shall be interpreted to require any 
employer, employment agency, labor 
organization, or joint labor-man­
agement committee subject to this 
subchapter to grant preferential 
treatment to any individual or to any 
group because of the race, color, 
religion, sex, or national origin of 
such individual or group on account 
of an imbalance which may exist with 
respect to the total number or per­
centage of persons of any race, 
color, religion, sex, or national 
origin employed by any employer, 
referred or classified for employment 
by any employment agency or labor 
organization, admitted to membership 
or classified by any labor organiza­
tion, or admitted to, or employed in,



32

any apprenticeship or other training 
program, in comparison with the total 
number or percentage of persons of 
such race, color, religion, sex, or 
national origin in any community, 
State, section or other area, or in 
the available work force in any 
community, State, section, or other 
area.

1 n United Steelworkers v. Weber, 44 3 U .S . 
193 (1979), this Court rejected peti­
tioner's interpretation of section 703(j), 
holding that "[sjection 7 0 3 (j) speaks to 
substantive liability under Title VII, but 
... not .. [r]emedies for substantive 
violations." 443 U.S. at 205 n.5.

The carefully drafted language of 
section 7 0 3(j) does not support the 
sweeping limitation on Title VII remedies 
urged by petitioners. Local 28 argues 
that section 703(j) precludes the use of 
race conscious measures for any purpose, 
even for redressing, preventing or
deterring violations of Title VII But



33

section 703(j) disavows mandatory race 
conscious measures only under one specific 
circumstance, where those measures are 
imposed to redress a mere racial imbalance 
in an employer's workforce. The language 
of section 703(j) thus reflects a delib­
erate congressional decision to disapprove 
race conscious measures only in that one 
specific circumstance, a legislative 
decision inconsistent with petitioners' 
view that Congress intended to ban such 
measures in all circumstances.

Petitioners also rely on the last
sentence of section 706(g), which states:

No order of the court shall require 
the admission or reinstatement of an 
individual as a member of a union, or 
the hiring, reinstatement, or
promotion of an individual as an 
employee, or the payment to him of 
any back pay, if such individual was 
refused admission, suspended, or 
expelled, or was refused employment or 
advancement or was suspended or 
discharged for any reason other than 
discrimination on account of race, 
color, religion, sex, or national 
origin....



34

Petitioners urge that section 706(g) 
provides that a court may only order the 
hiring or promotion of individuals who 
were refused employment or advancement for 
a discriminatory reason. But section 
706(g) simply does not say that. In the 
case of hiring, for example, section 
706(g) literally excludes from a hiring 
order only previous applicants who were 
rejected for a legitimate reason. 
Individuals who had not yet sought and 
thus were never denied employment do not 
fall within the literal language of the 
section 706(g) prohibition. That does not 
mean, of course, that a remedial decree 
must treat future applicants in the same 
way it treats past victims, but indicates 
only that distinctions between such groups 
must be based on general remedial consid­
erations, not on any per se limitation on



35

remedies established by Title VII itself. 
Here, as with section 703(j), the 
carefully phrased and narrow limitation in 
section 706(g) is simply inconsistent 
with a general congressional intent to 
exclude future applicants from the scope 
of a remedial decree.

Neither section 7 0 3(j) nor section 
706(g), moreover, purports to limit the 
use of numerical orders as such. The 
Solicitor General asserts that race 
conscious remedies, remedies for non­
victims, and quotas are, as a practical 
matter, all the same thing. But the actual 
experience of the lower courts, and of the 
Justice Department itself, demonstrates 
precisely the contrary.



36

C. The Legislative History of Title 
VII

Both petitioners and the Solicitor 
General argue that the legislative history 
of Title VII demonstrates that Congress 
intended to forbid any use of numerical 
remedies. The legislative history on 
which they rely does contain a number of 
statements that Title VII would not 
require or lead to the use of "quotas." 
If there were some universal consensus 
that all numerical orders are by defini­
tion "quotas," the references to "quotas" 
in the 1964 debates might support peti­
tioners' view.

But what various individuals and 
groups mean by the term "quota" varies 
widely, and what Congress had in mind in 
1964 is thus not self-evident. The 
Solicitor's brief appears to suggest that 
any numerical order is a quota; but the



37

Solicitor describes as devoid of quotas 
some 33 Justice Department consent decrees 
that are replete with numerical orders. 
For most of 1985 the Secretary of Labor 
and the Attorney General have waged a 
cabinet level battle over the difference 
between a "goal" and a "quota"; in late 
January 1 986, as this brief was being 
written, the President still had not 
decided what types of numerical devices 
constitute "quotas" and should therefore 
be excluded from the scope of Executive 
Order 1 1 246. Several of the amici who 
join in this brief have long opposed 
practices they regard as quotas. These 
amici, however, have never defined 
"quotas" in the sweeping manner proposed 
by petitioners and the Solicitor; rather, 
these amici have maintained that some 
numerical devices, which they denote as



38

"goals", are entirely appropriate methods 
of correcting discrimination on the basis 
of race, sex and national origin.

The significance of the legislative 
debates regarding "quotas" must turn on 
the nature of the practice that members of 
Congress had in mind in 1964 when they 
used that term. Although opponents of 
Title VII repeatedly expressed objections 
that the legislation required, or would 
lead to, "quotas", their arguments were 
not directed at the types of remedies 
which might prove necessary to redress, 
prevent or deter actual discrimination. 
Rather, as both the majority and Justice 
Rehnquist correctly observed in Weber, 443 
U.S. at 205, 231-247, these critics were 
concerned that the term "discrimination" 
in Title VII would be interpreted to mean 
or include "racial imbalance." Thus 
construed Title VII might have imposed on



39

employers an absolute and permanent duty 
to maintain in each job a specific 
proportion of minorities or women. When 
critics objected to "quotas," they were 
arguing that Title VII should not estab­
lish, and courts should not enforce, such 
an obligation. The House Minority Report, 
for example, asserted that the adminis­
tration intended to define "discrimina­
tion" to include "the lack of racial 
balance," a definition that would force an 
employer "to hire according to race, to 
'racially balance' those who work for him
... or be in violation of federal law."

9
H.R. Rep. 914, pt. 1, pp. 67-69.

It was to this specific contention 
that supporters of Title VII were respond­
ing when they made the statements regard-

See also 110 Cong. Rec. 1620 (Rep.
Abernathy), 7418 (Sen. Robertson), 8500 
(Sen. Smathers), 9034-35 (Sens. Stennis 
and Tower), 10513 (Sen. Robertson).



40

ing quotas on which petitioners and the
Solicitor General rely. Most of these
assurances were intended to make clear
that "employers would not be required to
institute preferential quotas to avoid
Title VII liability." United Steelworkers

f0
v . Weber, 443 U.S. at 205 n. 5. (Emphasis 
added). Thus when Senator Robertson 
asserted Title VII would require an 
employer to replace whites with blacks "to 
overcome racial balance," Senator Humphrey 
replied, "The bill does not require that 
at all ... There is no percentage quota". 
110 Cong. Rec. 5092. As Justice Rehnquist 
noted in Weber, what Senator Humphrey and 
other supporters "'maintained all along'
. . . was that it neither required nor

Justice Rehnquist characterized those same 
statements as assuring Congress that Title 
VII "did not authorize the imposition of 
quotas to correct racial imbalance." 443 
U.S. at 243 n. 22. (Dissenting opinion).



41

permitted imposition of preferential 
quotas to eliminate racial imbalances." 
444 U.S. at 248 n.28. (Emphasis omitted 
and added).

The legislative statements relied on 
by the Solicitor General were generally 
preceded or followed by an express 
reference to the "racial balance" argument 
to which Title VII supporters were 
responding. Representative Celler's 
speech was intended to rebut charges that 
employers would be required "to rectify 
existing 'racial or religious imbalance.'" 
110 Cong. Rec. 1518. The statement of 
Representative Lindsay, quoted at note 6 
of the Solicitor's brief, is immediately 
followed by this explanation of why Title 
VII imposed no quotas: "There is nothing 
whatever in this bill about racial balance 
as appears so frequently in the minority



42

report." 110 Cong. Rec. 1540. Represen­
tative Minish gave the same explanation of 
his interpretation of Title VII.

There is nothing here ... that would 
require racial balancing ... There 
is no quota involved. 110 Cong. Rec. 
2558.

Senator Humphrey's statement regarding 
quotas was expressly offered as a reply to 
charges Title VII would "authorize the 
Federal government to prescribe 'racial 
balance' of job classifications or office 
staffs." 110 Cong. Rec. 5423. Senator 
Kuchel disputed claims that federal 
"inspectors would dictate ... racial 
balance in job classifications, racial 
balance in membership", 110 Cong. Rec. 
6563;it was in response to this particular 
charge that Senator Kuchel made the 
statement quoted in note 7 of the Solici­
tor's brief, and placed in the record the 
House Republican memorandum cited in note



- 43

6 o £ the Solicitor's brief. 110 Cong.
Rec. 6563, 6566. The statement of Senator
Humphrey at 110 Cong. Rec. 6549, referred
to but not quoted by the Solicitor, reads

There is nothing in [Title VII] that 
will give any power to ... any Court 
to require hiring, firing, or 
promotion of employees in order to 
meet a racial 'quota' or to achieve a 
racial balance. That bugaboo has 
been brought up a dozen times; but it: 
is nonexistent. (Emphasis added).

The singular form of the demonstrative 
pronoun "that" and the pronoun "it" made 
clear that Senator Humphrey regarded the 
quota and racial balance arguments as one 
and the same objection. The assurance 
offered by Humphrey and others was not 
intended to limit the authority of courts 
to redress, prevent or deter discrimina­
tion; supporters of Title VII were simply 
stating, in the words of Senator Carlson, 
that the legislation contained "no



44

authority to require quota hiring to 
achieve racial balance." 110 Cong. Rec. 
10520.

That Congress had in mind this very 
specific problem, not numerical remedies 
generally, when it discussed quotas, is 
clear from the final legislative 
resolution of this issue. Concerns about 
quotas continued unabated despite the 
language discussed earlier in section 
706(g), a clear indication that Congress 
read section 706(g) literally, and thus 
believed it had no bearing on quotas in 
any sense. On May 26, 1964, however, the 
Dirksen-Mansf ield substitute was intro­
duced. That substitute for the first time 
contained the language now found in 
section 703(j ) . Although section 703(j) 
does not restrict the use of numerical 
remedies for Title VII violations, section 
703(j) did preclude the specific require­



45

ment Congress had in mind in the discus­
sions regarding "quotas." When the 
language ultimately incorporated in 
section 703(j) was first proposed by 
Senator Allott, he explained that it
makes clear that no quota system will be
imposed if Title VII becomes law", 110
Cong. Rec. 9881. That assurance would
have made no sense unless Congress
understood "quota" to refer only to
"quotas for racial balance", for only that
specific type of order is precluded by

11
section 7 0 3 (j ) . As Justice Rehnquist

Senator Allott commented:
"I have heard over and over again in the 
last few weeks the charge that Title VII 
.. . would impose a quota system on 
employers and labor unions.... I do not 
believe Title VII would result in the 
imposition of a quota system.... But the 
argument has been made, and I know that 
employers are also concerned about the 
argument. I have, therefore, prepared an 
amendment which I believe makes clear that 
no quota system will be imposed if Title 
VII becomes law. Very briefly, it 
provides that no finding of unlawful



46

observed in Weber,
[T] he language of §703(j) is pre­
cisely tailored to the objection 
voiced time and again by Title VII's 
opponents. Section 703(j) apparently 
calmed the fears of most of the 
opponents; after its introduction, 
complaints concerning racial balance 
and preferential treatment died down 
considerably.

12
443 U.S. at 244-47. The majority in Weber 
recognized that section 70 3(j) was 
intended as a full response to the 
frequently expressed concern about 
"quotas." 443 U.S. at 205.

Section 7 0 3 ( j ) is thus of decisive 
importance in interpreting the Title VII 
debates regarding "quotas." Section

Elsewhere Justice Rehnquist observed that 
section 703(j) was "carefully worded to 
meet, and put to rest, the opposition's 
charge." 443 U.S. at 246.



47

7 0 3(j ) delineates with precision the 
specific type of requirement which both 
proponents and opponents of Title VII had 
in mind when they used the term "quota." 
Section 7 0 3(j) is not, of course, a 
general prohibition against numerical 
remedies. Rather, section 703(j) spells 
out exactly what Title VII proponents 
meant when they disavowed quotas —  that 
Title VII did not create, and that courts 
therefore would not enforce, a general 
obligation to maintain a racially balanced 
work force.

This does not mean that Congress 
intended to express any preference for 
numerical or race conscious remedies. The 
language and legislative history of Title 
VII simply establish no per se rules 
regarding such orders. General remedial 
principles, which are thus controlling in 
a Title VII case, dictate that race con­



48

scious and numerical remedies not be used 
either casually or automatically. The 
federal courts must fashion decrees which 
will effectively and promptly redress, 
prevent and deter unlawful discrimination, 
but race conscious and numerical remedies 
need not be used where other milder 
devices would clearly suffice. Where, 
however, race conscious or numerical 
remedies are in fact a practical neces­
sity, Title VII, imposes no per se bar to 
their utilization.

II. THE RACE CONSCIOUS REMEDY IN THIS 
CASE IS APPROPRIATELY FRAMED TO 
PREVENT FURTHER DISCRIMINATION

The petitioners in this action are no 
typical Title VII defendants, and the 
remedial problems presented by this appeal 
are far more severe than those which arise 
in an ordinary civil case. Local 28 of 
the Sheet Metal Workers has over the



49 -

course of two decades of litigation 
established a record of intransigent re­
sistance to both the law and judicial 
decrees which is without parallel in the 
annals of equal employment litigation. 
Almost 22 years have passed since the 
issuance of the first court order for­
bidding Local 28 to engage in racial 
discrimination against blacks. In the 
face of that decree Local 28 chose, not to 
obey the law, but to embark upon a 
campaign of evasion and resistance which 
rivaled in its ingenuity and intransigence 
the most defiant southern school boards 
and voting officials of a generation ago. 
While the history of Local 281s scheme of 
illegality and contempt is complex, one 
thing is clear: that effort to avoid
obedience to federal law has been enor­
mously successful. In 1964, when the 
first injunction against discrimination



50

was issued, Local 28 had over 3300 
journeyman members, every one of them 
white. (J.A. 301); today, after two 
decades of litigation and more than a 
dozen subsequent court orders, the union 
still has only 122 non-white journeymen, 
in a city almost half of whose population 
is black or Hispanic. (J.A. 50).

More is thus at stake in this appeal 
than whether Local 28 will be permitted to 
continue to flout federal and state law 
and judicial decrees. We recognize that, 
because Local 28's history of unlawful 
conduct is exceptional, the remedies 
necessary here would not necessarily be 
required to deal with less intransigent 
defendants. But Local 28 asks this Court, 
by overturning or eviscerating the out­
standing federal court orders, to place a 
seal of approval on the arsenal of evasive 
tactics which the union has devised. A



51

number of opposing amici, well aware of 
Local 28's extraordinary success in 
excluding blacks and Hispanics, urge the 
Court to approve the union's conduct. As 
the federal courts learned a generation 
ago in dealing with resistance to the 
commands of Brown v. Board of Education, 
347 U.S. 483 (1954), exceptional intransi­
gence is all too likely to become com­
monplace if it is not dealt with firmly. 
Affirmance is required here, as it was 
required in Cooper v. Aaron, 358 U.S. 1 
(1958) and Louisiana v. united States, 380 
U.S. 145 ( 1965), to assure that the
deplorable record compiled by Local 28 
does not become a judicially authorized 
model for future defendants.

The first unsuccessful injunction 
prohibiting Local 28 from engaging in 
racial discrimination was issued on August 
2 4 , 1 964 in State Commission for Human



52

Rights v. Farrell, 252 N.Y.S.2d 649, 43
Misc. 2d 958 (Sup. Ct. N.Y. Co. 1964).
Rather than obey that injunction,

Local 28 flouted the court's mandate 
by expending union funds to subsidize 
special training sessions designed to 
give union members' friends and 
relatives a competitive edge in 
taking the [Joint Apprenticeship 
Committee] battery. JAC obtained an 
exemption from state affirmative 
action regulations directed towards 
the administration of apprenticeship 
programs on the ground that its 
program was operating pursuant to 
court order; yet Justice Markowitz 
had specifically provided that all 
such subsequent regulations, to the 
extent not inconsistent with his 
order, were to be incorporated 
therein and applied to JAC's pro­
gram .

EEOC v. Local 638 (Pet. App. A-352). The
state judge repeatedly castigated Local 28
for these tactics, and issued a series of

13
additional orders. The success of these 
tactics is testified to by a single

See cases cited, Respondents Brief in 
Opposition, p. 2 n.*.



53

statistic; as of July 1, 1968, four years 
after the issuance of the state court 
injunction, Local 28 still had no black 
journeyman members. (J.A. 334).

On June 29, 1971 , respondent EEOC 
commenced this action alleging that Local 
28, despite the issuance of a series of 
state court injunctions, was still engaged 
in systematic racial discrimination. (J.A. 
372). On July 2, 1974, the district court 
issued an interim order directing Local 28 
to admit 20 non-whites to its next 
apprenticeship class. (J.A. 363). On 
October 4, 1974, the United States 
Attorney was compelled to seek a contempt 
citation against Local 28, since the union 
still had not indentured and assigned to 
employment any of those new non-white 
apprentices. (J.A. 345). The district 
court subsequently found that the union 
had "unilaterally suspended court-ordered



54

timetables for admission of non-whites to 
the apprenticeship program pending trial 
of this action, only completing the 
admission process under threat of contempt 
citations." (Pet. App. A-352).

The EEOC action against Local 28 was 
tried in early 1975. Despite the fact 
that Local 28 had by then been for 9 years 
under a state court injunction against 
discrimination, the district court found 
that the union had continued to engage in 
a wide variety of discriminatory prac­
tices. (Pet. App. A-330-50). The second 
circuit properly characterized local 28 as 
"recalcitrant", and recognized that its 
discriminatory practices were "contrary to 
the spirit and letter of the New York 
court's order". (Pet. App. A-214-15).

The district court realized that a 
general injunction against racial dis­
crimination by Local 28 would have been



55

meaningless, since the Local had for 10 
years intentionally and systematically 
violated just such an injunction. Accord­
ingly, the district court attempted to 
frame an order intended to preclude, not 
only the types of discrimination to which 
Local 28 had already resorted, but other 
possible techniques as well. In July, 
1975, the district judge entered a 
detailed order and injunction prohibiting 
a variety of forms of discrimination. This 
was followed in 1975 by a detailed 
Affirmative Action Plan and Order (AAPO), 
and in 1976 by Revised Affirmative Action 
Plan and Order (RAAPO) . (Pet. App. A 8). 
The injunction provided for the selection 
of a plan administer who was authorized to 
administer the affirmative action plans 
and issue additional orders.



56

These orders were met with the
familiar pattern of resistance. Local 28 
consistently delayed implementation of the 
administrator's orders by insisting they 
be reviewed by the judge. (J.A. 217).
Although the RAAPO required Local 28 to 
seek government funds to provide addi­
tional training opportunities, the Local 
refused to do so. (J.A. 143). In 1980
every one of the 16 journeymen who joined 
the union by direct admission was white. 
(JA 99). In 1979 Local 28 amended its
agreement with contractors to require, in 
a period of unemployment, that 20% of all 
vacancies be reserved for members over the 
age of 52. The district judge found that 
this provision discriminated against 
minority members of Local 28, since over
98% of all members over 52 were white.

14
(Pet. App. A—155; J.A. 48).

14 The court of appeals found that this



57

The most important manner in which 
Local 28 evaded the letter and spirit of 
the 1 975 injunction, AAPO, RAAPO, and the 
orders of the administrator was by 
drastically reducing the size of its 
apprenticeship program, traditionally the 
primary means of admission to the union. 
The 1975 injunction and subsequent orders 
succeeded in regulating in such detail the 
process of selecting apprentices that 
discrimination in that phase of Local 28's 
activities finally become impossible. 
Between 1977 and 1980 approximately 45% of 
all indentured apprentices were non-white.
(J . A . 96). Local 28 responded to this 
development by largely shutting down the 
program. In the four years prior to the 
1 975 injunction, when non-whites were a 
comparatively small portion of appren-

provision had not been put in operation. 
Pet. App. A-17-18.



58

tices, Local 28 indentured an average of 
543 apprentices a year. In the four
years between 1977 and 1981, Local 28 
indentured an average of 83 apprentices a 
year. This drastic reduction in appren­
ticeships occurred even though apprentice 
unemployment was far higher in 1971-75 
than in 1977-81. (Pet. App. A-151).

Although some of the details of Local 
28's evasive tactics may be in contro­
versy, the Local's continued success in 
minimizing the admission of non-whites is 
indisputable. In 1974, prior to the
issuance of any of the remedial orders at
issue, there were 117 non-white journeyman

15
members of Local 28. (J.A. 323). In
1982, some seven years after the district 
court's injunction and AAPO went into 
__

The figures at J.A. 323 do not include 
apprentices as union members. Compare
J.A. 312 (number of non-white apprentices) 
with J.A. 323.



59

effect, there were 122 non-white journey­
man members. (J.A. 50). Even this
trivial progress is illusory, for the 1982 
journeymen include 11 non-whites who were 
transferred into Local 28 in 1978 at the 
direction of the international, and who 
actually work in the blowpipe industry 
rather than the sheet metal industry.
(J.A. 102). On this record the adminis-

16 17
trator, the district court and court of 

18
appeals all understandably found Local 28 
in contempt.

Pet. App. A-139 ("a pattern of delay, 
obstructionism and blatant disregard for 
court orders that goes back as far as 
1965"),A-142 ("passive if not overt, 
resistance").
Pet. App. A-123 (petitioners "consistently 
have violated numerous court orders"), 
A-112 ( past violations of court's orders 
"egregious") .

18 Pet. App. A-13-25.



60

It is against this background that 
the challenged portions of the decree must 
be judged. The purpose of the 29% goal, 
we believe, is both self-evident and 
reasonable. By 1975 it was all too clear 
that Local 28 was determined to use any 
evasive technique it could devise to 
minimize the number of minorities admitted 
to the union. Over a ten year period 
that union had demonstrated its ability to 
fashion new discriminatory schemes to 
replace older methods struck down by a 
series of state court orders. The federal 
district court understood full well that, 
no matter how many discriminatory devices 
that court might forbid, Local 28 would 
still be able to devise yet more. To 
bring to an end this cycle of repeated but 
ineffective injunctions, the district 
court included in its order the one type 
of provision that would clearly be



61

violated by any effective discriminatory 
scheme -- a goal of 29% non-white members 
by 1981. In view of the district judge's 
particular familiarity with the years of 
federal litigation which preceeded the 
order at issue, this Court should give 
considerable deference to the trial 
judge's view that the 1982 injunction was 
necessary to enforce both Title VII and 
earlier federal decrees.

The 29% goal represented the degree of 
integration that it was reasonable to 
expect would naturally occur if Local 28 
ended at once all forms of discrimination, 
and avoided such discrimination in the 
future. Had Local 28 continued after 1975 
to indenture apprentices at the pre-1975 
rate, the 29% goal would have been reached 
long ago. The 1975 injunction did not 
require Local 28 to give preference to 
apprentice applicants of any race, and the



62

1983 injunction, as modified on appeal, 
does not do so either. To comply with 
the present goal Local 28 may need to do 
no more than return the size of its 
apprentice classes to the pre-1975 level, 
and assure that construction work is 
shared equitably between those apprentices 
and the virtually all-white journeymen. In 
1977, when circumstances beyond the 
union's control made compliance with the 
1981 deadline more difficult, the district 
judge extended that deadline for a year on 
the motion of the plaintiffs. (J.A. 163). 
There is no reason to doubt that the judge 
would be equally willing to modify the 
requirements of his present order if 
future developments warrant.

In its original contempt decision the 
district court indicated its intention to 
impose a fine on Local 28. (Pet. App. 
A-126). The district court subsequently



63

ordered, "in lieu of" fines for the 
various acts of contempt, that Local 28 
and other petitioners make certain 
payments into a Fund to be utilized to 
provide sheet metal training for non­
whites. The Fund's training activities 
can include operation of a training 
program, stipends or loans to blacks and 
Hispanics in existing programs, and 
part-time or summer sheet metal jobs for 
youths between 16 and 19. (Pet. App. 
A—113—118). This order, like the goal, was 
reasonably framed as a method to prevent 
future discrimination. In light of Local 
28's record of discrimination, the 
district court could reasonably anticipate 
that black applicants will still face 
significant obstacles in winning member­
ship in the union, despite the hoped for 
effect of the new injunctive relief. The 
training and experience that the Fund can



64

provide will increase the ability of 
blacks to overcome those obstacles, and 
will do so in a manner less severe in its 
impact on whites than an order establish­
ing a race conscious membership rule.

CONCLUSION
For the above reasons the judgment of 

the court of appeals should be affirmed.
Respectfully submitted,

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
CLYDE E. MURPHY 
PENDA D. HAIR 
ERIC SCHNAPPER*

NAACP Legal Defense and 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Amici 
*Counsel of Record 
(A complete list of counsel is 
set out on pp. ii)



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177