Orleans Parish School Board v Bush Motion to Affirm

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

BRIAN F. WEBER, Individually and on Behalf of 
All Other Persons Similarly Situated,

KAISER ALUMINUM & CHEMICAL CORPORATION 
AND UNITED STEELWORKERS OF AMERICA, 

AFL-CIO,

On Appeal from the United States 
District Court for the Eastern 

District of Louisiana

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

Plaintiff-Appellee
v

Defendants-Appellants.

ABNER SIBAL 
General Counsel

J. STANLEY POTTINGER 
Assistant Attorney General

JOSEPH T. EDDINS 
Associate General Counsel
BEATRICE ROSENBERG 
MARIAN HALLEY 
Attorneys
Equal Employment Opportunity 
Commission

GERALD J. GALLINGHOUSE 
United States Attorney

ALFRED G. ALBERT 
Acting Solicitor of 
Labor

ROBERT T. MOORE 
RICHARD S. UGELOW
Attorneys
Department of Justice

JAMES D . HENRY 
LOUIS G. FERRAND, JR. 
GARY M. BUFF
Attorneys
Department of Labor



TABLE OF CONTENTS

ISSUE PRESENTED................................... 1
INTEREST OF THE UNITED STATES AND THE EQUAL

* EMPLOYMENT OPPORTUNITY COMMISSION ..............  2
STATEMENT ......................................... 3
Facts of the C a s e ............................... 3
Opinion of the District Court..................  12

A R G U M E N T ......................................... 13
Issue and Summary..............................  13

A. AFFIRMATIVE ACTION PLANS REQUIRED BY 
EXECUTIVE ORDER 11246 AND ITS IMPLE­
MENTING REGULATIONS DO NOT VIOLATE

* TITLE VII OF THE CIVIL RIGHTS ACT OF
1964   16
1. Affirmative Action Plans adopted 

pursuant to Executive Order 11246
have been approved by the Courts........  19

2. Affirmative Action Plans, including 
Goals and Timetables, implemented to 
comply with Executive Order 11246
have been approved by Congress..........  25

3. Defendants' voluntary efforts at meeting
the requirements of Executive Order 11246 
were in accordance with contemplated pro­
cedures ................................. 31

B. THE DISTRICT COURT ERRED IN CONCLUDING THAT 
AFFIRMATIVE ACTION PLANS EMBODIED IN CONSENT

/ AGREEMENTS WHICH DO NOT CONTAIN ADMISSIONS OF
DISCRIMINATION AND/OR ARE NOT JUDICIALLY 
SANCTIONED VIOLATE TITLE VII ................  34

Page



C. ANY ALTERATION OF PLAINTIFFS' SENIORITY 
EXPECTATIONS WHICH HAS OCCURRED HERE 
BECAUSE OF COMPLIANCE WITH EXECUTIVE
ORDER 11246 IS LAWFUL............................  39

CONCLUSION................ .. .......................  42



22, 24, 35

Jersey Central Power and Light Co. v.
I.B.fi.W" 508 F . 2d "687 (3d Cif“ 1975) , 
vacated, 425 U.S. 987 (1976), 542 F.2d 8(3d Cir. 
1976) ("on remand from S.Ct.)..................

Jones v. Lee Way Motor Freight, 431 F.2d 245 
(10th Cir. 1970), cert, denied, 401 U.S.
954 (1971) .....................................

Joyce v. McCrane, 320 F. Supp. 1284
(D.C. N.J. 1970) ............................

Kirkland v. New York, 520 F.2d 420 (2d Cir. 1975), 
cert, denied, 97 S.Ct. 73 (1976) ..............

Local 12, Rubber Workers v. N.L.R.B._,
368 F.2d' 12 (5th Cir. 1966) . . ...............

Local 53 Asbestos Workers v. Vogler, 407 F.2d 
1047 (5tK cir. 1969)"~~........................

Local 189, United Papermakers v. United States,
416 F .2d 980 (5th Cir. 1969), cert, denied,
397 U.S. 919 (1970) ..........................

Maryland Casualty Co. v. United States, 251
u.s. 342 ( i92o) r r  .......................... ......................

Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920 (2d Cir. 1968) . . . . • .

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) . . .
Offermann v. Nitkowski, 378 F.2d 22

(2d Cir. 1967) . .............................
Patterson v. Newspaper and Mail Deliverers'

Union, 514 F.2d 76'7""(2d Cir. 195) T T T  . . .
Porcelli v. Titus, 302 F. Supp. 726 (D. N.J.
— 1969')': aff 'd;~"431 F . 2d 1254 (3d Cir.

1970) .........................................
Sanders v. Dobbs House, Inc., 431 F.2d 1097 

(5th Cir. 1970), cert, denied, 401 U.S. 948 
(1971) .......................................

Southern Illinois Builders Association 
v"! Ogilvie, 327 F . Supp. 1154 (S. D . 111.
1971) 7 aff1d 471 F.2d 680 (7th Cir. 1972) . . .

37

15

24

26

23

18

18

20

23

20

23, 41 

20 

26

15, 20



TABLE OF CASES

Albemarle Paper Co. v. Moody, 422
U.S. 4'05 (1975) 7 ................................... 34, 37, 38

Alexander v. Gardner-Denver Co., 415
U.S. 77 (1974) ............ ........................  26, 37

Associated General Contractors 
of Massachusetts, Inc. v~
Altschuler, 490 F .2d 9 (1st Cir.
1973), cert, denied, 416 U.S. 957 ( 1 9 7 4 ) ..........  15, 21

Page

Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1972) , cert. denied, 406 U.S. 950 (1972)..........  23

Chance v. Board of Examiners, 534 F.2d
77T"(2d Cir. 1976) . . .............................  21, 24

Contractors Ass'n of Eastern Pa. v. Shultz,
442 F.2d 159 (3d Cir. 1971), cert, denied,
404 U.S. 854 (1971) ..............................  14-16, 18, 20,

26, 28, 29, 33
E.E.O.C. v. American Telephone and Telegraph 

Co. ;” 5l9 F.Supp. 1022 (E.D. Pa.
1776) ...............................................................................................................  20, 21

E.E.O.C. v. Mississippi Baptist Hospital, 11
EPD [CCH] U 0 , 822 (S.D. Miss. 1976) .................  35

E.E.O.C. v. N.Y. Times Broadcasting Service,
Inc'.", 542 E.2d 356 (6th Cir. 1975) . T 7 ........  38

Emporium Capwe11 v. Western Addition Community
Organization, 420 U.S. 573 (1975) ! ! ! ! • ........  15, 35, 40,
—  41

Farkas v. Texas Instruments Co., 375 F.2d 629 
(TtK Cir. 1967), cert, denied,' 389 U.S.
977 (1967)......................................... 18

Ford Motor Co. v. Huffman, 345 U.S. 330
(1953) 7 " ~ ......................................... 39, 41

Franks v. Bowman Transportation Co., 424
U.S. 747 (1976) . . . ............   15, 37, 39

Gates v. Georgia Pacific Corp., 492 F.2d 292
(7th Cir. 1974) . . . . . 7  ...........................  40

Griggs v. Duke Power Co., 401 U.S. 424
“ 7X771) 7— 7 — — ............................  38



14, 16, 36, 
37, 38, 41
41

4

United States v. Allegheny Ludlum Industries, 
et aTT> 317 F . 2d 82? (3th Cir. 17737; 
cert, denied, 425 U.S. 944 (1976) . . . .

United States v. Bethlehem Steel Corp., 446 F. 2d 652 (2nd Cir. 1971)........ .. . . .
United States v. City of Jackson, 519 F.2d 

1147 (5th Cir. 1975) . . . . . ..........
United States v. International Union of 

Elevator Constructors, Local Union No. 5, 538 F.2d 1012 (3d Cir.' 1976) . . . .'T-  .
United States v. Mississippi Power and Light 

Co., 9 EPD [CCH] 110,164 (S.D. Miss. 1975)
United States v. N.L. Industries, 479 F.2d 

354 (8th Cir. 1973).......... ............
United States v. New Orleans Public Service, 

Inc., 8 EPD [CCHJ \9795 (D.C. La. 1974) .
United States v. United States Steel Corp.,

371 F. Supp. 1045 (N.'b. Ala. 1973), reversed 
on other grounds, 520 F.2d 1043 (5th Cir. 1775), 
cert, denied, 97 S.Ct. 61 (1976) ..............

Vaca v. Sipes, 386 U.S. 171 (1967) ..............
Waters v. Wisconsin Steel Works, 502 F.2d 1309 

(7th CirT 1974), cert, denied, 97 S.Ct. 2214 
(1976) .........................................

Watkins v. United Steelworkers of America,
Lo'caT 2369, 516 F.2d 41 (5th Cir. 19 75)." . . . .

36

20, 30 

18, 21 

34, 37 

18

41
41

22, 24

21, 22, 23, 
24

/



The Federal Civil Rights Employment Effort - 1974 
Volume 5, To Eliminate Employment Discrimination,
United States Commission on Civil Rights ............  31

Legislative History of The Equal Employment
Opportunity Act of 1972 ............................  30

CCH Employment Practices Guide ........................  35



STATUTES AND OTHER AUTHORITIES

Page

Title VII of the Civil Rights Act of
1964 , as amended, 42 U.S.C. §2000e et. s e g ........... Passim

Section 703, 42 U.S.C. 2000e-2 ........................  20, 21, 24,
29, 39

Section 706, 42 U.S.C. 2 0 0 0 e - 5 ...........................  35
Section 709, 42 U.S.C. 2 0 0 0 e - 8 ........................... 26
Section 715, 42 U.S.C. 2000e-14 ...........................  30
Section 718, 42 U.S.C. 2000e-17 ..........................  30
Equal Employment Opportunity Act of 1972,

Public Law 92-261 ......................................  26
Executive Order 11246 ..................................  Passim
Section 202 .............................................12, 18
Section 207 ..............................................  33
Section 209 ..............................................  32
The Secretary of Labor's Regulations Implementing 

Executive Order 11246 (Title 41, Code of
Federal Regulations, Part 60-1 et. seg.) ............  Passim

41 CFR §60-1.24 .......................................... 32
41 CFR §60-1.40 .......................................  26
41 CFR § 6 0 - 2 ............................................  19
41 CFR §60-2.10.......................................... 19
41 CFR §60-2.14.......................................... 26
110 Cong. Rec. 13650 (1964)..............................  26
118 Cong. Rec. (1972)

Pages:
1385 ......................................  27
1387-1398   27
1398-1399   29
1664 ......................................  28
1665 ....................................  28, 29
1676 ......................................  28
3367-3370   28
3371-3373   28
3372 ..................................... 28
3959-3865   28

122 Cong. Rec. S.17320 (daily ed. Sept. 30, 1976) . . . .  19
42 Fed. Reg. 3454 (1977)   26
35 Fed. Reg. 2586 (1970)   26



employment practices followed by the Company. The parties 
stipulated that "substantially all maintenance and craft 
personnel employed at Kaiser Gramercy Works were obtained by 
hire of persons qualified and trained in such crafts prior 
to employment by Kaiser" and that "[t]he available supply 
of trained craft and trade personnel available for hire by 
the Company as new employees has been, and remains to the 
present time, almost entirely made up of white males" (App.

_3/196) .
While maintaining requirements less stringent than 

already being fully craft trained and experience require­
ments, other Company employment practices pertaining to 
craft jobs also had an adverse effect upon minorities.
Two limited on-the-job training programs had been maintained 
by Kaiser at Gramercy prior to 1974 and a total of 28 per­
sons had been trained, of whom only two were blacks (App. 
196-197). One training program, started in 1964 for the 
carpenter-painter craft, required one year of prior experi­
ence gained outside the Gramercy plant as a condition for 
entry (App. 196). The other program, started in 1968 for 
the general repairman craft, required three years of

3/ In recognition of the desirability of craft jobs, it 
was also stipulated that the "[play rates for crafts are in 
general higher than a majority of other jobs at the plant 
. . . and such jobs are considered desirable and advantageous
for financial, job security and other reasons" (App. 199).

5



(non-Kaiser) experience up until 1971, at which point the 
requirement was relaxed to two years of prior experience 
(App. 197). Openings in both programs were filled on the 
basis of plant seniority from among qualified bidders 
(App. 196-197).

The seniority factor, however, was not the root cause of 
the limited minority participation in the programs. Rather, 
it was the prior experience requirement. In fact, by 1974, 
there remained virtually no non-craft employees in the 
plant, of any race, with sufficient qualifying craft experi­
ence for entry into either program (App. 115). In 1974 
alone, 22 new craftsmen (21 of whom were white) were hired 
"through the front gate" for lack of qualified incumbent 
employees who could qualify either directly for craft 
positions or for the training program leading to craft 
positions (App. 103, 112). This effective denial of these 
positions and programs to Kaiser employees, whatever their 
race, was of concern to the USW (App. 115). More importantly, 
however, this resulting reliance on "outside" training and/or 
experience had the effect of carrying into Kaiser's craft 
positions the product of historical discrimination within 
the non-industrial sources of craft training and experience.

Kaiser's industrial relations superintendent testified 
that the Company had attempted to hire fully experienced 
blacks into all craft categories, but had not been success­
ful, even though it had used all available recruitment means

6



such as advertising in minority newspapers and keeping separate 
affirmative action files (App. 99, 103-104). A similar lack 
of success had been had in obtaining partially experienced 
blacks in any numbers for the two training programs (App. 110, 
115). The superintendent further testified to a recognition 
that blacks lacked craft training and experience because 
they had been discriminatorily denied entry into the building 
trades unions' programs where such training and experience 
was generally gained (App. 100) . It was also the observation 
of Kaiser's national director of equal opportunity affairs 
that the statistical absence of minorities and females 
from the craft field was "a direct result of employment 
discrimination over the years, the lack of opportunity on 
the part of the blacks in some areas of the community, 
Mexican-Americans, certainly, women, to obtain the kind 
of training that was necessary to achieve the skills"
(App. 142).

Both Kaiser's national director of equal opportunity 
affairs and its industrial relations superintendent testified 
that Government officials, through the Executive Order 11246 
program, had asked the company to correct the lack of 
minorities in the crafts (App. 99, 121, 145-146, 148). The 
director of equal opportunity affairs explained (App. 145- 
146) :

I don't think I have sat through a compliance
review where it wasn't apparent that there

7



were few, if any, minorities in the craft 
occupations, and that there was always, cer­
tainly, the suggestion, on the part of the 
compliance review officers, that we devise 
and come up with methods and systems to 
change that particular thing.

The Company's industrial relations superintendent also 
testified as to the concern about avoiding Government and 
private litigation, and the possibility of substantial back 
pay awards and court imposed seniority remedies to which 
the Company and Union might have limited input and resulting 
difficulties adjusting to (App. 130-132).

It was in this factual context that the defendants, 
through the collective bargaining process, established 
the affirmative action plan for craft occupations at the 
Gramercy plant. On the basis of the available workforce 
for the area, the plan established an eventual goal of 39% 
minority and 5% female for each of four craft groupings 
(App. 95; Kaiser Ex. 1), with an implementing ratio of one 
minority or female for each white male selected for future 
craft vacancies (App. 117-118; Joint Ex. 2). To insure 
that meaningful results would be obtained in light of the 
scarcity of minorities and females with prior craft experience, 
the plan provided for a new on-the-job training program for 
which prior experience was not a prerequisite (App. 100), 
with the duration of the training being from 2 1/2 to 3 1/2 
years, depending upon the craft category (App. 106). The

8



elimination of all prior experience requirements also satis­
fied the legitimate USW objective of increasing craft oppor­
tunities for its members in preference to new hires (App.
115). The cost of the program to Kaiser was estimated at be­
tween $15,000 and $20,000 per year per trainee (App. 107).

The application of the plan at the Gramercy plant 
resulted in the filling, after posting for bid on a plant­
wide basis (App. 197), of thirteen training vacancies lead­
ing to six crafts, with seven being filled by black employees 
and six by white employees (App. 117; Kaiser Ex. 2). Where 
more than one vacancy was posted at the same time, selec­
tion was made on an alternating basis between the most 
senior black and white employees bidding (App. 116). On 
two occasions, single vacancies were posted. In order to 
maintain the 50% objective, one was filled from among white 
bidders only and the other from among black bidders only

_4/
(App. 117). It was stipulated that in each instance,
except for the vacancy limited to white employees, the 
successful black bidders were junior in plant seniority 
to one or more of the unsuccesssful white bidders (App.
198) .

4/ The plaintiff and another white employee testified that 
whites were excluded from bidding on the vacancy filled by a 
black (App. 56-57, 88). However, there was no limit on whom 
could bid on the vacancy in question (for Insulator Trainee) 
as is evidenced by the bid records revealing 13 white and 7 
black bidders (Joint Ex. 3). Furthermore, the Supplemental 
Memorandum to the 1974 Labor Agreement provided for the 
selection of a white had there been "insufficient available 
qualified minority candidates" (Joint Ex. 1, pp. 164-165).

9



Because of the low numbers of blacks hired into the
plant between its start-up in 1957-58 and the Company's 
adoption of an affirmative action hiring plan in 1969 (see 
p. 4, supra), the defendants recognized that without the one- 
for-one selection ratio, and on the basis of time in the plant 
only, "there would be very few blacks that would get into any 
of the crafts for quite a while" (App. 113). Because of the 
previous total exclusion of females (App. 105), the same 
reasoning and conclusion is equally applicable to females.

In all other respects, the regular Labor Agreement 
provision on employee selection controlled the filling of 
the training vacancies in issue. That provision provides 
that, as between competing employees, the factors to be 
considered in addition to seniority are (a) ability to 
perform the work and (b) physical fitness (Joint Ex. 1, 
p. 57). There was no evidence, or suggestion, that any 
unsuccessful bidder had greater ability or was more 
physically fit to undertake the on-the-job training offered 
than the successful black bidders.

The plaintiff alleged that the use of the 50% ratio to 
fill the craft training vacancies violated Title VII of the 
Civil Rights Act of 1964 because it established "a quota 
system which illegally discriminates against non-minority 
members of the Kaiser Gramercy labor force. . ." (App. 206).
A plaintiff class was certified pursuant to Rule 23(b) (2),

10



Federal Rules of Civil Procedure, consisting of all 
Gramercy plant employees who "are not members of a minority 
group and who have applied or were eligible to apply for on- 
the-job training programs since February 1, 1974" (App. 207).

At trial, plaintiff testified, and the bidding records 
revealed, that of the three posted vacancies he had bid on, 
one was filled by a minority employee with less plant ser­
vice than he possessed (App. 76-77; Joint Ex. 3). It was 
undisputed, however, that' if the vacancies had been awarded 
on the basis of seniority alone, he (Weber) would not have 
been the successful bidder with regard to any of them (App. 
72, 138; Joint Ex 3). Another white employee testified that 
despite his 16 years of plant service, he had been an unsuc­
cessful bidder for three posted vacancies which were awarded 
to blacks with less seniority (App. 87). Neither of these 
white employees had been eligible for full craft status 
or for the pre-1974 on-the-job training programs since 
they both lacked the then required prior experience (App.
82, 89, 90). In this regard, the plaintiff conceded 
that the defendants' 1974 collective bargaining agreements 
had opened previously closed craft opportunities for all 
Kaiser employees (App. 82, 90).

In the preamble to their Memorandum of Understanding 
creating their voluntary affirmative action plan, the

11



Company and Union declared that in adopting such a plan 
they were not admitting any previous discrimination in 
violation of either Title VII or Executive Order 11246 
(Joint Ex. 2). At trial, Kaiser's director of equal 
opportunity affairs refused to state that the defendants 
had engaged in any prior discrimination against blacks 
and testified that he knew of "no specific evidence of 
discrimination" at the Gramercy plant (App. 169). The 
industrial relations superintendent made a similar denial 
and stated the Company's belief that it had not "discrimi­
nated inside [the] plant" (App. 122, 128). Both Company 
officials also testified that the blacks entering craft 
training under the 1974 agreements were not selected be­
cause they were known to be victims of specific acts of 
past discrimination (App. 128, 154-157). However, the 
Company did recognize them to be victims of general 
societal discrimination (App. 161-163, 168).

Opinion of the District Court
The district court ruled that the affirmative action 

provisions of the collective bargaining agreements implemented 
at the Gramercy plant violated Sections 703(a) and 703(d) of 
Title VII because they unlawfully discriminated against 
white employees on the basis of their race (App. 213). The 
district court acknowledged that affirmative action plans

12



could lawfully be ordered by courts. The court reached 
this conclusion, however, on the ground that Sections 
703(a) and 703(d) "do not prohibit the courts from dis­
criminating against employees by establishing quota 
systems where appropriate. The proscriptions of the 
statute are directed solely to employers" (emphasis 
added) (App. 216). The court concluded that no matter 
how laudable the defendants' objectives, in the absence 
of evidence of prior discrimination and judicial 
approval, the court's reading of that portion of the 
legislative history of Title VII which it believed 
relevant precluded an affirmative action plan from 
being lawful. Moreover, the district court was of the 
opinion that because the minority and female employees 
who benefited from the affirmative action plan had not 
been individually and specifically the victims of dis­
crimination, it would not be appropriate for a court to 
order goals in the context of this case (App. 216-219).

ARGUMENT

Issue and Summary

This case raises the question of whether parties to a 
collective bargaining agreement can take voluntary corrective 
action to remedy an underutilization of minorities and females

13



in craft jobs and thus comply with the requirements of 
Executive Order 11246, as amended, without violating Title 
VII of the Civil Rights Act of 1964.

The affirmative action plan challenged herein was 
designed to correct the virtual exclusion of minorities 
and females from highly desirable craft jobs at Kaiser's 
Gramercy plant. It is a plan that not only made newly 
created craft training opportunities available to 
minorities and females on an accelerated basis, but also 
made such opportunities available for the first time to 
most of the white male incumbents, including the plaintiff. 
The instant plan does not require the selection of a less 
qualified employee over more qualified employees. Until 
the craft positions reflect the surrounding workforce, 
it does call for the filling of one half of the training 
vacancies with either minorities or women, to the extent 
there are sufficient qualified minorities and females 
available. In this regard, the provisions of the instant 
affirmative action plan are similar to those contained in 
the nationwide steel consent decree which were approved 
in United States v. Allegheny Ludlum Industries, et al.,
517 F.2d 826 (5th Cir. 1975), cert, denied, 425 U.S. 944 
(1976).

The lawfulness of affirmative action programs similar 
to that challenged herein and adopted to comply with 
Executive Order 11246 have been sustained by the courts. 
Contractors Ass'n. of Eastern Pa. v. Shultz, 442 F.2d 159

14



(3d Cir. 1971), cert, denied, 404 U.S. 854 (1971); Associated
General Contractors of Massachusetts, Inc, v. Altschuler, 490 
F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974); 
Southern Illinois Builders Association v. Ogilvie, 327 F. 
Supp. 1154 (S.D. 111. 1971), aff'd 471 F.2d 680 (7th Cir.
1972); Joyce v. McCrane, 320 F. Supp. 1284 (D.C. N.J. 1970).

Moreover, the appropriateness of affirmative action 
programs under the Executive Order was fully considered 
and ratified by the Congress during the course of the 
enactment of the 1972 amendments to Title VII. Congress, 
at that time, emphasized the Third Circuit's opinion in 
Contractors Ass'n of Eastern Pa. v. Shultz, supra, and the 
differences between the affirmative action requirements of 
the Executive Order and those of Title VII. Attempts to 
limit the Executive Order program and to make Title VII the 
exclusive federal remedy in employment discrimination mat­
ters were rejected.

Further, Kaiser and the USW, as parties to a collective 
bargaining agreement, could lawfully remedy the effects of 
employment practices that had been identified as having an 
adverse impact upon minorities and females. Emporium 
Capwell v. Western Addition Community Organization, 420 U.S. 
50 (1975); Franks v. Bowman Transportation Co., 424 U.S.
747 (1976).

In sum, we argue herein that the defendants took appro­
priate steps to identify and remedy a deficiency in the

15



utilization of minorities and females in the craft positions 
of the Gramercy workforce. The adoption of the affirmative 
action plan in issue here was an action reasonably calculated 
voluntarily to bring the defendants' employment practices 
pertaining to craft jobs into compliance with federal law 
and regulations without the necessity of litigation and/or 
federal intervention, and it did not result in unlawful 
discrimination against the plaintiff or the class he 
represents.

A. AFFIRMATIVE ACTION PLANS REQUIRED BY 
EXECUTIVE ORDER 11246 AND ITS IMPLE­
MENTING REGULATIONS DO NOT VIOLATE 
TITLE VII OF THE CIVIL RIGHTS ACT OF 
1964.

The selection of persons to fill the training posi­
tions at issue in this case was in accordance with an 
affirmative action program which the defendants adopted
to comply with the obligations imposed upon government

_6/contractors under Executive Order 11246, as amended.

6/ Executive Order 11246 is the latest in a series of 
presidential orders dating back to 1941, whose purpose has 
been to prohibit employment discrimination where federal 
government contracts are involved. Each Order has been 
premised on the right and responsibility of the executive 
branch to determine the terms and conditions upon which the 
United States will contract with private parties. See e.g. 
United States v. Allegheny Ludlum Industries, et al., 517 
F.2d 826 (5th Cir., 1975), cert. denied, 425 U.S. 944 
(1976); Contractors Association of Eastern Pa. v. Shultz, 
supra.

16



While the district court did not specifically address 
the question of the validity of the Executive Order 
enforcement program, the clear implication of its hold­
ing is that much of what government contractors, such 
as Kaiser, are presently obligated to do under that 
program is in violation of Title VII. That this is 
erroneous is demonstrated by an examination of the 
nature of the Executive Order, its enforcement mechanisms, 
and the concept of affirmative action.

Among the obligations placed on government contrac­
tors and subcontractors by the Executive Order is that 
of taking necessary affirmative action with regard to the 
hiring and promotion of minorities and females into fu­
ture vacancies where they have previously been under­
utilized (Executive Order, Section 202(1)).

The concept of what affirmative action contemplates 
was, in our view, well stated by Kaiser's national 
director of equal opportunity affairs in an exchange 
with the district court (App. 170-171):

THE COURT: . . . Since you referred to the term
'affirmative action', why don't we get your 
definition of it? I'm not holding you to any 
legalistic precision, I'm merely trying to 
get your general understanding, as you appre­
ciate it.

THE WITNESS: I think the concept of affirmative
action, affirmative action is a plan for 
an employer to develop, to do all of those 
things that creates opportunities of employ­
ment for all citizens. In the process of 
that, to remove barriers that would make 
that affirmative action a hollow gesture.

17



It's not a passive thing, there is a difference 
between equal employment opportunity and affirm­
ative action. Those are not synonymous. Open­
ing the doors of employment to minorities or 
females, where previously they had been barred 
from employment, is but one step. To then 
create an employment environment where they 
can achieve and compete and perform is where 
you get into the concept of affirmative action.
I think affirmative action calls for remedial 
measures.

THE COURT: In other words, I take it that included
within the concept of affirmative action, as 
you understand it to be, is color awareness, as 
opposed to color blindness, with regard to those 
with whom you've dealing?

THE WITNESS: Certainly. Yes, you would have to be
aware of that.

Under the Executive Order, this affirmative action 
obligation is discharged by compliance with implementing 
regulations issued by the Secretary of Labor (Ex. Order,

_ 7/ '
Section 202(4)). These implementing regulations require
contractors and subcontractors, inter alia, to analyze 
their workforces and to identify areas in which they are 
deficient in the utilization of minority group members and

7/ It is well established that Executive Order 11246 has the 
force and effect of law. Local 189, United Papermakers v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 
U.S. 919 (1970); Contractors Ass'n. of Eastern Pa. v. Shultz,
supra. See also Farkas v. Texas Instruments Co., 375 F.2d 
629 (5th Cir. 1967), cert, denied, 389 U.S. 977 (1967). It
is also well established that regulations issued pursuant to 
appropriate authority themselves have the force and effect 
of law unless they are in conflict with that authority. See, 
e.g., Maryland Casualty Co. v. United States, 251 U.S. 342 
(1920); United States v. Mississippi Power and Light Co.,
9 EPD [CCH] 1110,164 (S.D. Miss. 1975) (appeal pending);
United States v. New Orleans Public Service, Inc., 8 EPD [CCH] 
119795 (E.D. La. 1974) (appeal pending).

18



the type of preferential treatment prohibited by Section 
703 (j) of Title VII. While conceding that in the absence 
of a finding of prior discrimination, employers could not 
be compelled through a Title VII action because of Section 
703 (j) to embrace the type of affirmative action required 
to redress an underutilization of minorities or females 
under the Executive Order, the Court of Appeals concluded 
that "Section 703 (j) is a limitation only upon Title VII, 
not upon any other remedies, state or federal." 442 F.2d 
at 172. See also Association of General Contractors of 
Massachusetts v. Altshuler, supra; E.E.O.C. v. American Tele­
phone and Telegraph Co., supra; United States v.
Mississippi Power and Light, supra.

Therefore, it is not, as the district court thought, 
significant that the minorities who have benefited by the 
plan were not the victims of specific discriminatory acts 
(App. 217). To support its contention on this point, the 
district court relied on Watkins v. United Steelworkers of 
America, Local 2369, 516 F.2d 41 (5th Cir. 1975) and Chance 
v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976). We 
believe that both of these cases are inapplicable.

Both Watkins and Chance involved challenges to seniority 
systems that provided for layoffs on a "last-in-first-out" 
basis. In addition, Watkins involved a challenge to the 
reverse side of that coin; a recall system based on a

21



females. Where deficiencies are determined to exist, the
contractor must seek to eliminate or modify any employment
practices causing or perpetuating the underutilization and,
furthermore, as part of its affirmative action program,
must develop goals and timetables to remedy the deficiencies

_8/
(41 CFR §60-2.10 et seq.).

1. Affirmative Action Plans adopted pursuant 
to Executive Order 11246 have been 
approved by the Courts___________________

The approval by the Court of Appeals for the Third 
Circuit of the "Philadelphia Plan" puts to rest the

8/ We believe that the district court, as well as some of 
the parties, incorrectly characterized the selection ratio 
called for by the Memorandum of Understanding as a "quota".

The instant Memorandum of Understanding does not require 
Kaiser to select any unqualified persons because of their race 
or sex or to meet any specific timetables for increasing the 
numbers of minorities and females in craft jobs. We believe, 
therefore, that the affirmative action plan in issue is more 
accurately characterized as establishing "goals" and only 
requiring good faith efforts to meet them. See 41 CFR 
§60-2.14.

In another context, Congress has recognized this dis­
tinction. In discussing the prohibition against hiring g-oa-irs <P<J<5T<ZS 
contained in Section 518(b) of the Crime Control Act of 1976,
Senator Hruska distinguished goals from quotas as follows:
"the formulation of goals is not a quota . . . .  a goal is a 
numerical objective fixed realistically in terms of the 
number of vacancies expected and the number of qualified 
applicants available. Factors such as lower attrition rate 
than expected, bona fide fiscal constraints, or lack of 
qualified applicants would be acceptable reasons for not 
meeting a goal that had been established and no sanctions 
would accrue . . . ." 122 Cong. Rec. S. 17320 (daily ed.
Sept. 30, 1976) .

19



proposition that affirmative action plans necessarily con­
flict with Section 703(a) and (d) of Title VII. Contrac­
tors Ass'n. of Eastern Pa. v. Shultz, supra. In that 
case, the court stated, 442 F.2d at 173:

To read §703 (a) in the manner suggested 
by the plaintiffs we would have to attribute 
to Congress the intention to freeze the status 
quo and to foreclose remedial action under 
other authority designed to overcome existing 
evils. We discern no such intention either 
from the language of the statute or from its 
legislative history. Clearly the Philadelphia 
Plan is color-conscious. Indeed the only 
meaning which can be attributed to the "affir­
mative action" language which since March of 
1961 has been included in successive Executive 
Orders is that Government contractors must 
be color-conscious. Since 1941 the Executive 
Order program has recognized that discrimina­
tory practices exclude available minority man­
power from the labor pool. In other contexts 
color-consciousness has been deemed to be an 
appropriate remedial posture. Porcelli v.
Titus, 302 F. Supp. 726 (D. N.J. 1969), aff'd,
431 F.2d 1254 (3d Cir. 1970); Norwalk CORE
v. Norwalk Redevelopment Agency, 395 F.2d 920,
931 (2d Cir. 1968); Offermann v. Nitkowski,
378 F.2d 22, 24 (2d Cir. 1967) . . .  We
reject the contention that Title VII prevents 
the President acting through the Executive 
Order program from attempting to remedy the 
absence from the Philadelphia construction 
labor [force] of minority tradesmen in key 
trades. (footnote omitted)

See also United States v. International Union of Elevator Con­
structors, Local Union No. 5, 538 F.2d 1012 (3d Cir. 1976);
Southern Illinois Builders Association v. Ogilvie, supra;
E.E,O.C. v. American Telephone and Telegraph Co., 419 F. 
Supp. 1022 (E.D. Pa. 1976) (appeal pending).

The court in Contractors Ass'n, also rejected the 
further argument that affirmative action goals constitute

20



"last-out-first-in" concept. To follow such systems would, it
was alleged, perpetuate the effects of prior discriminatory acts
and would therefore be unlawful. In essence, those cases
involved the issue of who would be retained or be restored to

_£/
a job. That issue is simply not before the Court in this
case. No employee's present job or continued employment is
or will be in jeopardy as a result of the disputed provisions
of the defendants' collective bargaining agreement. What has
been challenged here is a remedial program applicable only
to future vacancies in training positions.

Although there was a claim in Watkins that the recall
procedures there also involved the filling of future vacancies,
the Court in that case did not address the argument in terms
which recognized such vacancies as being true vacancies to
which no employee had a claim by reason of prior service i’n

10/
the positions involved. In fact, the recall system in
Watkins did not involve real vacancies in that sense, since 
the issue involved recall to jobs previously held. On the

9/ Other court of appeals cases focusing on the question of 
seniority preference to minorities and females have also been 
largely confined to layoff/recall situations. See Jersey 
Central Power and Light Co. v. I.B.E.W., 508 F.2d 6(T7 (3d Cir. 
1975), vacated, 425 U.S. 987 (1976), 542 F.2d 8 (3d Cir. 1976) 
(on remand from S. Ct.) and Waters v. Wisconsin Steel Works, 
502 F.2d 1309 (7th Cir. 1974) cert, denied, 97 S. Ct. 2214 
(1976).
10/ In Watkins the Court concluded, we believe correctly, 
that "there is no substantial difference between the layoff 
of employees pursuant to employment seniority and the recall 
of those employees on the same basis". 516 F.2d at 52.

22



other hand, in the present case, true vacancies are involved.
No Gramercy employee has any prior claim to a future training

11/
vacancy. Neither the plaintiff nor any member of his
class alleges that what is involved is his right to be re­
tained on or restored to "his job".

In this regard, unlike Watkins, the present case does 
not involve "an employer's use of a long-established 
seniority system" nor does it present a challenge to the 
"express intent [of Congress] to preserve contractual rights 
of seniority as between whites and persons who had not [speci­
fically] suffered any effects of discrimination" Watkins v. 
United Steelworkers of America, Local 2369, supra, 516 
F.2d at 44, 48 (emphasis added). The plaintiff, and the 
class he represents, had no prior contractual rights to the 
new on-the-job training program devised by the defendants. 
Their present contractual rights spring from the 1974 col­
lective bargaining agreement which they challenge, and it 
is that agreement which provides all employees with a new, 
and, indeed, their first opportunity to obtain craft posi­
tions .

11/ Judicially imposed goals, when directed toward future 
vacancies or job opportunities, have not limited the 
minority beneficiaries to "identifiable victims of specific 
acts of discrimination". See Local 53 Asbestos Workers v. 
Vogler, 407 F.2d 1047 (5th Cir. 1969); NAACP v. Allen, 493 
F.2d 614 (5th Cir. 1974); Patterson v. Newspaper and Mail 
Deliverers' Union, 514 F.2d 767 (2d Cir. 1975); Carter v.
Gallagher, 452 F.2d 315 (8th Cir. 1972), cert, denied, 406 
U.S. 950 (1972).

23



Unlike the situations in Watkins, Chance, Jersey Central
Power and Light Co. v. I.B.E.W., 508 F.2d 687 (3d Cir. 1975),
vacated, 425 U.S. 987 (1976), 542 F.2d 8 (3d Cir. 1976) (on
remand from S. Ct.), and Waters v. Wisconsin Steel Works, 502
F.2d 1309 (7th Cir. 1974), the selection system challenged
herein, which benefits minority and female employees, is not
one which is sought to be imposed under Title VII upon an
existing seniority system. It is not a system requiring "a
preferential treatment on the basis of race which Congress
specifically prohibited in Section 703 (j)" as an available
remedy under Title VII in the absence of proof of prior

12/
discrimination. Watkins, supra, 516 F.2d at 46. Instead,
it is a system collectively bargained for in compliance with

13/ ‘
Executive Order 11246.

In Chance, the court differentiated between remedial 
programs giving preference to minorities in hiring to fill 
new vacancies and layoff rights of competing employees 
under a collective bargaining agreement. The court there 
held that a labor agreement that provided for layoffs

12/ Kirkland v. New York, 520 F.2d 420 (2d Cir. 1975), cert. 
denied, 97 S. Ct. 73 (1976), upon which the court below also 
relied, is distinguishable from the present case for this same 
reason.
13/ In this regard, the court in Jersey Central specifically 
found that a conciliation agreement between the company, unions 
and the EEOC had not modified the "last-in-first-out" provi­
sions of the existing collective bargaining agreement and thus 
that court did not, as did not the courts in Watkins, Chance 
or Waters, address the issue of the consequence had such a 
modification been agreed to.

24



based upon a "last-in-first-out" concept was not unlawful 
because Congress had indicated a policy of protecting 
such seniority systems as bona fide. 534 F.2d at 997-98.
The court, however, clearly distinguished the protection 
accorded such systems from the permissibility of lawful 
programs, such as the instant one, that concern future 
vacancies and are remedial in nature. 534 F.2d at 998-99.

2. Affirmative Action Plans, including 
Goals and Timetables, implemented to 
comply with Executive Order 11246 
have been approved by Congress._____

The effect of the district court's holding in this 
case is to declare that the affirmative action plan adopted 
by the defendants is not only precluded by Title VII as a 
Title VII remedy, but that it is also precluded by Title VII 
from being voluntarily adopted as a remedial Executive Order 
measure.. As such, the holding is in clear conflict with 
expressed Congressional intent.

From the beginning, the Congress has recognized and 
accepted the Executive Order program. As originally enacted, 
Title VII of the Civil Rights Act of 1964 made express 
reference to the Executive Order in a context which clearly 
contemplated continuance of the Executive Order program.

25



would have made Title VII the exclusive Federal remedy for 
certain individuals in the field of employment discrimina­
tion. 118 Cong. Rec. 3367-3370; 3371-3373; 3959-3965. In 
opposing that amendment, Senator Williams, one of the floor 
managers of the 1972 bill, made the following statement (118 
Cong. Rec. 3372):

Furthermore, Mr. President, this amend­
ment can be read to bar enforcement of 
the Government contract compliance pro­
gram at least, in part. I cannot 
believe that the Senate would do that 
after all the votes we have taken in 
the past 2 to 3 years to continue that 
program in full force and effect.

Most importantly, Congress, just two days after hear­
ing the comments of Senator Saxbe, quoted above, rejected 
an amendment offered by Senator Ervin which would have 
proscribed the adoption of goals by government contractors. 
118 Coug. Rec. 1676. In speaking against this amendment, 
Senator Javits had the Third Circuit's prior approval of 
affirmative action goals in Contractors Ass'n. reprinted 
in the Congressional Record (118 Cong. Rec. 1665). More­
over, he argued that what the Ervin amendment sought to 

reach was:
[T]he whole concept of "affirmative action" 
as it has been developed under Executive 
Order 11246 and as a remedial concept under 
Title VII.

28



Section 709(d), 42 U.S.C. 2000e-8(d). Contractors Ass'n.
of Eastern Pa. v. Shultz, supra, 442 F.2d at 171. Indeed, 
in the debates concerning adoption of Title VII, Congress 
expressly rejected an amendment by Senator Tower which would 
have made Title VII the exclusive Federal remedy in the 
area of equal employment opportunity. 110 Cong. Rec.
13650-52 (1964); Local 12, Rubber Workers v. N.L.R.B., 368
F.2d 12 (5th Cir. 1966); Sanders v. Dobbs House, Inc., 431 
F.2d 1097 (5th Cir. 1970), cert, denied, 401 U.S. 948 (1970); 
Alexander v. Gardner-Denver, 415 U.S. 36 (1974).

Congress again had an opportunity to review the Executive 
Order program in connection with consideration of the Equal 
Employment Opportunity Act of 1972 (Public L. 92-261), which 
amended Title VII. At the time of the debates, the Secretary 
of Labor's regulations requiring affirmative action in the 
form of goals and timetables had been in effect for several 
years. [See, 41 CFR §60-1.40, which, prior to its amendment 
in January 1977 (42 Fed. Reg. 3454 (1977)) was last amended
in 1969, and 41 CFR §60-2 (Order No. 4), which was originally 
issued in 1970 (35 Fed.Reg. 2586, February 5, 1970)]. Congress
was also well aware of what was meant by "underutilization"

14/

14/ Section 709 (d) provided that the EEOC was to accept 
report forms required of employers under the Executive Order 
and not require separate or duplicate reports.

26



triggering the establishment of goals. As originally 
introduced, the 1972 legislation sought, inter alia, to 
transfer the entire Executive Order enforcement program to 
the Equal Employment Opportunity Commission. In speaking 
in support of his amendment to strike that transfer pro­
vision, so as to leave the administration of the Executive 
Order with the Department of Labor, then Senator Saxbe 
stated:

The OFCC's affirmative action programs 
have tremendous impact and require that 
260,000 Government contractors in all 
industries adopt positive programs to 
seek out minorities and women for new 
employment opportunities. To accomplish 
this objective, the OFCC has utilized 
the proven business technique of establish­
ing "goals and timetables" to insure the 
success of the Executive order program.
It has been the "goals and timetables" 
approach which is unique to the OFCC's 
efforts in equal employment, coupled 
with extensive reporting and monitoring 
procedures that has given the promise 
of equal employment opportunity a new 
credibility.

The Executive order program should not 
be confused with the judicial remedies for 
proven discrimination which unfold on a 
limited and expensive case-by-case basis. 
Rather, affirmative action means that all 
Government contractors must develop pro­
grams to insure that all share equally in 
the jobs generated by the Federal Govern­
ment's spending. Proof of overt discrim­
ination is not required. 118 Cong. Rec.
1385.

Senator Saxbe's proposed amendment was adopted. 118 
Cong. Rec. 1387-1398 (1972). In addition to preserving 
the Executive Order program in its present form, Congress 
at this time also rejected a new amendment which again

27



Philadelphia-type plans are based on 
the Federal Government's power to require 
its own contractors or contractors on pro­
jects to which it contributes— for example,
State projects with a Federal contribution—  
to take affirmative action to enlarge the 
labor pool to the maximum extent by pro­
moting full utilization of minority-group 
employees, and by making certain require­
ments for those who hire to seek out 
minority employees . . . 118 Cong. Rec.
1664 (1972).

Senator Javits, in further stating his objections to the 
Ervin amendment, distinguished affirmative action plans 
under the Executive Order from those under Title VII:

First, it would undercut the whole 
concept of affirmative action as developed 
under Executive Order 11246 and thus pre­
clude Philadelphia-type plans.

Second, the amendment, in addition 
to the dismantling the Executive order 
program, would deprive the courts of 
the opportunity to order affirmative 
action under title VII of the type which 
they have sustained in order to correct 
a history of unjust and illegal discrim­
ination in employment and thereby fur­
ther dismantle the effort to correct 
these injustices. 118 Cong. Rec. 1665 
(1972).

Furthermore, with the decision in Contractors Ass'n., and 
its holding that Sections 703(a), 703 (h) and 703 (j) of Title 
VII were not applicable to Executive Order remedial programs 
clearly before the Congress, the Senate Subcommittee on Labor, 
in its section by section analysis of the 1972 Amendments to 
Title VII, provided:

In any area where the new law does not 
address itself, or in any areas where a 
specific contrary intention is not indicated, 
it was assumed that the present case law as

29



developed by the courts would continue to 
govern the applicability and construction of 
Title VII.

Subcommittee on Labor of the Senate Committee on Labor 
and Public Welfare, Legislative History of the Equal 
Employment Opportunity Act of 1972, at 1844 (1972).

In sum, "[t]here is unusually clear evidence" that 
Congress has recognized the existence of the Executive 
Order contract compliance program, including its re­
quirements as to goals and timetables, and rejected 
attempts to curtail or eliminate it. United States v. 
International Union of Elevator Constructors, Local 
Union No. 5, supra, at 1019-20. In fact, Congress
adopted at least two provisions designed to make the

15/
program work fairly and more effectively. The con­
tract compliance program is therefore one in which 
Executive action has the implied and express authoriza­
tion of Congress.

15/ The two provisions adopted by the Congress were the 
Javits amendment (Section 715, 42 U.S.C. 2000e-14) which 
created the Equal Employment Opportunity Coordinating 
Council and a provision (Section 718, 42 U.S.C. 2000e-17) 
requiring a hearing and adjudication prior to terminating 
a contract of a government contractor with an approved 
affirmative action plan.

30



3. Defendants' voluntary efforts at meeting 
the requirements of Executive Order 11246 
were in accordance with contemplated pro­
cedures__________________________________

The enforcement scheme of the Executive Order relies
primarily upon voluntary compliance with its implementing
regulations. While sanctions, including loss of contracts,
debarment from future contracts and litigation to enforce
contractual obligations, are provided for, the essence of
the program is self-evaluation and voluntary correction
without the direct intervention of the government agencies

16/
charged with enforcement.

Such voluntary compliance is a necessity for the Govern­
ment. In 1974, there were approximately 168,000 government 
contractors that employed between 30 and 40 million persons. 
In the same year, the eighteen federal agencies delegated 
Executive Order enforcement responsibility by the Secretary
of Labor were authorized only 1,738 compliance officers to

17/
conduct the reviews necessary to determine compliance.

16/ Contractors, like Kaiser, comply because of the very 
real threat of government enforcement proceedings. In this 
respect, the compliance mechanism of the Executive Order is 
not unlike that contemplated by the Internal Revenue Code. 
Not every taxpayer is audited annually. However, there is 
substantial compliance with the tax laws because of, inter 
alia, the threat of an audit that would reveal deficiencies 
and thereby subject a taxpayer to enforcement proceedings.
17/ The Federal Civil Rights Enforcement Effort - 1974, 
Volume 5, To Eliminate Employment Discrimination, United 
States Commission on Civil Rights, July 1975, at 390.

31



Given the Government's limited resources, it is obvious 
that frequent supervision of individual government contractors 
is not feasible, but that the effectiveness of the Executive 
Order program must rest largely upon good faith efforts by 
government contractors to comply with its terms.

Even when intervention is necessary, however, the Execu­
tive Order emphasizes informal resolution. Where a contrac­
tor is found not to be in compliance with its equal employ­
ment obligations, Section 209(b) of the Executive Order 
provides:

Under rules and regulations prescribed 
by the Secretary of Labor, each contracting 
agency shall make reasonable efforts within 
a reasonable time limitation to secure com­
pliance with the contract provisions of this 
Order by methods of conference, conciliation, 
mediation and persuasion before proceedings 
shall be instituted [upon referral to the 
Department of Justice] under Subsection (a)(2) 
of this Section, or before a contract shall 
be cancelled or terminated in whole or in 
part under Subsection (a)(5) . . .

In turn, the Secretary of Labor's implementing regula­
tions (41 CFR §60-1.24(c)(2)) require that "whenever possible," 
apparent violations be resolved by informal means.

If any complaint investigation or com­
pliance review indicates a violation of the 
equal opportunity clause, the matter should 
be resolved by informal means whenever pos­
sible. Such informal means may include the 
holding of a compliance conference by the 
agency . . .

In addition, where non-compliance stems in whole or in 
part from the adoption or continuation of an employment prac­
tice encompassed within a collective bargaining agreement,

32



Section 207 of the Executive Order requires that attempts be 
made to involve the appropriate union in the conciliation 
effort and to otherwise obtain that union's cooperation "in 
the implementation of the purpose of this Order".

The district court's view that an affirmative action 
plan, such as was adopted by the defendants, can only be 
implemented upon a finding or admission of discrimination, 
if affirmed, would undermine the basic reliance which the 
Executive Order program places on voluntary, self-initiated 
compliance. The need for such conditions as would be imposed 
by the court below was specifically addressed and rejected in 
Contractors' Ass'n. of Eastern Pa. v. Shultz, supra. The 
court in that case held that the Executive Order plan re­
quired there did not impose "a punishment for past mis­
conduct, [but instead] exacts a covenant for present 
performance." 442 F.2d at 176. The court further 
explained:

The Philadelphia Plan is valid Executive action 
designed to remedy the perceived evil that 
minority tradesmen have not been included in the 
labor pool available for the performance of con­
struction projects in which the federal govern­
ment has a cost and performance interest.

★ ★ ★

[D]ata in the September 23, 1969 order 
revealing the percentages of utilization 
of minority group tradesmen in the six 
trades compared with the availability of 
such tradesmen in the five-county area, 
justified issuance of the order without 
regard to a finding as to the cause of 
the situation. . . . A finding as to

33



the historical reason for the exclusion 
of available tradesmen from the labor 
pool is not essential for federal 
contractual remedial action. (Emphasis 
added) (442 F.2d at 177).

As a very practical matter, employers cannot be expected 
voluntarily to adopt remedial measures in compliance with the 
Executive Order if they would also be required to admit to 
engaging in prior discrimination. It is simply not realistic 
to expect an employer to make such an admission and thereby 
subject himself to potential litigation by aggrieved parties. 
The avoidance of such litigation and potential back pay lia­
bility has been recognized by the courts as an important and 
legitimate reason for taking affirmative remedial action. In 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975) 
the Supreme Court declared:

If employers faced only the prospect of an 
injunctive order, they would have little 
incentive to shun practices of dubious 
legality. It is the reasonably certain 
prospect of a backpay award that 'provide[s] 
the spur or catalyst which causes employers 
and unions to self-examine and to self- 
evaluate their employment practices and to 
endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and 
ignominious page in this country's history 
United States v. N.L. Industries, Inc., 479 
F.2d 354, 379 (CA 8 1973).

B. THE DISTRICT COURT ERRED IN CONCLUDING 
THAT AFFIRMATIVE ACTION PLANS EMBODIED 
IN CONSENT AGREEMENTS AND WHICH DO NOT 
CONTAIN ADMISSIONS OF DISCRIMINATION 
AND/OR ARE NOT JUDICIALLY SANCTIONED 
VIOLATE TITLE VII

Title VII, like Executive Order 11246, places primary 
emphasis upon good faith efforts to obtain voluntary

34



compliance. Section 706 (b) of Title VII specifically calls 
upon the Equal Employment Opportunity Commission to seek to 
"eliminate . . . alleged unlawful employment practice[s] by
informal methods of conference, conciliation, and persua­
sion." 42 U.S.C. §2000e-5(b). In this regard, the Supreme 
Court has recognized that "Congress chose to encourage 
voluntary compliance with Title VII by encouraging concilia­
tory procedures before federal coercive powers could be 
invoked." Emporium Capwell v. Western Addition Community 
Organization, supra, 420 U.S. at 72. The EEOC meets its 
statutory obligations in this regard by the execution of 
conciliation agreements, a common feature of many of which 
is the adoption by employers of affirmative action obliga­
tions, including goals and timetables for the hiring, pro­
motion and transfer of minorities and females into future 
vacancies. See, CCH, Employment Practices Guide 1M! 1470-
1488; Jersey Central Power and Light Co. v. I.B.E.W.,

18/
supra, 508 F.2d at 695, fn. 18.

Similarly, this Court has sanctioned the voluntary 
resolution of Title VII complaints through its approval of 
consent decrees, including consent decrees with affirmative

18/ In the rare instance when the issue has been presented, 
courts have given full effect to EEOC conciliation agreements. 
See, Jersey Central Power and Light Co. v. I.B.E.W., supra;
E.E.0.C. v. Mississippi Baptist Hospital, 11 EPD [CCH]
1110,822 (S.D. Miss. 1976) (requiring specific performance
of a conciliation agreement).

35



action provisions setting forth specific hiring, promotion 
and transfer goals. E.g. United States v. City of Jackson, 
519 F.2d 1147 (5th Cir. 1975); United States v. Allegheny 
Ludlum Industries, et al., supra, (where in addition to 
Title VII, violations of Executive Order 11246 were also 
alleged and resolved by the consent decree). Further, both 
conciliation agreements and consent decrees traditionally 
contain disclaimers of wrongdoing.

The district court, however, determined that two 
elements are necessary to have a valid affirmative action 
plan like the one in question: (1) a finding or admission
of prior discrimination and (2) court supervision. If sus­
tained, that holding would render the statutory scheme of 
Title VII a nullity and would, as a practical matter, end 
the voluntary resolution through affirmative action of 
employment discrimination matters under both that Act and 
the Executive Order. As we have previously indicated, to 
require admission of a violation of the law would expose 
a defendant to enormous liability and thus remove a major 
incentive for settlement. Moreover, since conciliation 
agreements are by their nature not supervised by the courts, 
there could never be, in the opinion of the trial court, a 
lawful conciliation agreement that contained affirmative 
action goals. These results, we respectfully suggest, are 
contrary to this Court's recognition "that Congress and the 
Supreme Court have expressed a preference for voluntary

36



compliance above all other tools of enforcement[.] United
States v. Allegheny Ludlum Industries, et al. , supra, 517 
F.2d at 849. See also, Franks v. Bowman Transportation Co., 
supra; Alexander v. Gardner-Denver, supra.

The holding of the court below is also inconsistent 
with the earlier quoted declaration of the Supreme Court 
that Title VII places an affirmative obligation on employers 
and unions "to self-examine and to self-evaluate their employ­
ment practices and to endeavor to eliminate, so far as pos­
sible, the last vestiges of an unfortunate and ignominious 
page in this country's history." Albemarle Paper Co. v.
Moody, supra, 422 U.S. at 418 quoting from United States v.
N.L. Industries, supra, 479 F.2d at 379.

In this regard, the affirmative action plan adopted by the 
defendants was a reasonable attempt to meet any possible
obligations under Title VII without potentially lengthy,

19/
expensive and vexatious litigation. In light of the

19/ At the time the defendants negotiated the 1974 Labor 
Agreement, the state of the law was such that they could have 
reasonably concluded that an employment practice which re­
sulted in only two blacks being admitted to a craft training 
program and in an overall percentage of minorities (2%) in 
craft jobs which was substantially lower than either the 
minority population in the plant (14.8%) or the relevant com­
munity (40%) was prima facie a violation of Title VII. Jones 
v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), 
cert, denied, 401 U.S. 954 (1971). Moreover, the then existing
employment practice would have continued disproportionately to 
exclude blacks and females because of their inability to ob­
tain the necessary craft experience in the building trades 
(footnote continued on next page)

37



historical underutilization of minorities in the Gramercy 
plant, as recognized by the defendants through the voluntary 
adoption by Kaiser in 1969 of affirmative hiring goals, the 
defendants could reasonably have expected that in the event 
of a Title VII suit, a court would find that the effects of 
the prior exclusion of blacks would be perpetuated in any 
new on-the-job training program by the adoption of a selec­
tion practice based solely on plant seniority. See United 
States v. Allegheny Ludlum, supra, 517 F.2d at 880 (discus­
sion of female participation in 50/50 goals for trade and 
craft jobs which, because of their present extreme under­
utilization in the P&M workforce, will result in their 
future selection in substantial numbers despite their 
minimum seniority compared to that of males); Griggs v..
Duke Power Co., 401 U.S. 424 (1971).

(footnote continued from previous page)
outside the plant. The continued application of an experience 
requirement could only be lawful under Title VII if there was 
a legitimate business necessity. E.E.0.C. v. N.Y, Times Broad­
casting Services, Inc,, 542 F.2d 356 (6th Cir. 1976).

Given these conditions, it was not unreasonable for 
the defendants to have self-evaluated their employment 
practices, Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975),
to have concluded that their practices were arguably viola­
tive of Title VII, and, to have taken steps that would pro­
vide relief routinely ordered by courts in Title VII liti­
gation. See brief of Union Appellants pp. 21-24.

38



C. ANY ALTERATION OF PLAINTIFFS' SENIORITY 
EXPECTATIONS WHICH HAS OCCURRED HERE 
BECAUSE OF COMPLIANCE WITH EXECUTIVE 
ORDER 11246 IS LAWFUL

The district court correctly recognized that seniority 
rights are the product of collective bargaining agreements 
and as such are subject to change through the collective 
bargaining process (App. 211). The court, however, concluded 
that the parties, by agreeing to a 50/50 affirmative action 
provision with regard to future craft training vacancies, 
had established a discriminatory practice that violated Sec­
tion 703 of Title VII.

The Supreme Court has consistently held that seniority
rights are not property rights but rather are expectancies
that may be modified to conform employment practices with
federal law and regulations that prohibit discrimination
in employment. In Franks v. Bowman Transportation Co.,
supra, 96 S. Ct. at 1271, the Court stated:

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. . . . 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 
Company v. Huffman, 345 U.S. 330 (1953).
And the ability of the union and employer

39



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." (citations and 
footnote omitted)

In the instant case, the parties did precisely what 
they were obligated to do by federal law and regulation.
They identified a practice which had an adverse impact on 
the training opportunities available to minorities and 
females and bargained for an alternative means to correct 
and eliminate the effects of that practice.

The plaintiffs have not, however, challenged that 
portion of the Labor agreement that made craft opportuni­
ties available to them. Rather, they express disappoint­
ment that the collective bargaining agreement did not

2 0 /
give them more.

The union has an obligation as the exclusive collective 
bargaining agent to "fairly and in good faith represent the 
interests of minorities. . . . "  Emporium Capwell Co. v. 
Western Addition Community Organization, supra, 420 U.S. at

20/ This disappointment is not well founded. Kaiser was 
under no obligation to the plaintiffs to create a new 
training program, at substantial expense, so as to provide 
them a means of obtaining craft jobs. Likewise, having 
created such a program, there is nothing in Title VII or any 
other act which mandates the use of seniority as a selection 
criterion. Indeed, for them to establish a training program 
based solely on seniority might have violated Title VII. See 
Gates v. Georgia Pacific Corp., 492 F.2d 292 (9th Cir. 1974).

40



64. When the union meets that obligation it also fulfills 
its obligations to all members of the bargaining unit be­
cause, as the Supreme Court has recognized, particularly in 
the area of seniority, "[t]he complete satisfaction of all 
who are represented is hardly to be expected." Ford Motor 
Co. v. Huffman, supra, 345 U.S. at 338. See also Vaca v. 
Sipes, 386 U.S. 171 (1967); Emporium Capwell v. Western 
Addition Community Organization, supra.

The defendants herein were simply responsive to the 
demands of the Executive Order and to remedial programs
ordered by the courts or obtained by the responsible govern-

21/
ment agencies in consent decrees. E.g. United States v.
Allegheny Ludlum Industries, et al., supra; Patterson v. 
Newspaper and Mail Deliverers' Union, 514 F.2d 767 (2d Cir. 
1975). We believe that the defendants' actions are in full 
compliance with and are not contrary to the Executive Order 
nor to Title VII.

21/ The defendants were well aware of the development of the 
case law and the requirements of Executive Order 11246. The 
USW and its locals, for instance, have been defendants in liti­
gation involving issues similar to those sought to be corrected 
by the affirmative relief provided by the Supplemental Agree­
ment. E.g. United States v. United States Steel Corp.,
371 F. Supp. 1045 (N.D. Ala. 1973) reversed on other grounds,
520 F.2d 1043 (5th Cir. 1975), cert, denied, 97 S. Ct. 61 
(1976); United States v. Bethlehem Steel Corp., 446 F.2d 652 
(2nd Cir. 1971). Moreover, the USW was a party to the nation­
wide steel industry consent decrees approved by the Court in 
United States v. Allegheny Ludlum Industries, et al., supra, 
and the agreements in issue here contain many of the elements 
of affirmative relief contained in those consent decrees.

41



CONCLUSION

For the foregoing reasons, and on the basis of the 
authorities cited, the United States respectfully submits 
that the district court's decision is contrary to law and 
should be reversed.

Respectfully submitted,
J. STANLEY POTTINGER 
Assistant Attorney General

JOSEPH T. EDDINS 
Associate General Counsel

ABNER SI3AL 
General Counsel

Beatrice Rosenberg 
Marian Halley

Attorneys GERALD J. GALLINGHOUSE
Equal Employment United States Attorney
Opportunity Commission

ALFRED G. ALBERT 
Acting Solicitor of 

Labor

JAMES D. HENRY 
LOUIS G. FERRAND, JR. 
GARY M. BUFF 
Attorneys
Department of Labor

ROBERT T. MOORE ^  
RICHARD S. UGELOW
Attorneys
Department of Justice



CERTIFICATE OF SERVICE

I, Richard S. Ugelow, hereby certify that a copy of
the foregoing Brief of the United States and the Equal
Employment Opportunity Commission as amicus curiae was
on this 12th day of February, 1977, mailed, first class,
postage prepaid, to the following counsel of record:

Michael Gottesman, Esquire 
Bredhoff, Cushman, Gottesman & Cohen 
1000 Connecticut Avenue, N.W.
Washington, D. C. 20036
Michael R. Fontham, Esquire 
Stone, Pigman, Walther,
Wittmann & Hutchinson 

1000 Whitney Bank Building 
New Orleans, LA 70130
Robert J. Allen, Jr., Esquire 
Legal Department 
Kaiser Aluminum & Chemical 

Corporation 
300 Lakeside Drive 
Oakland, CA 94612
Frank W. Middleton, Jr.
Taylor, Porter, Brooks & Phillips
P.O. Box 2471
Baton Rouge, LA 70821

OGELOJf.CHARD S 
Attorney 
U.S. Department of Justice 
Washington, D.C. 20530



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