Correspondence from Lani Guinier to Derfner, McDonald, Parker, Blacksher, Ellis, Williams, Winner, and Davidson Re Draft/Abigail Thernstrom Book Review

    -............................ ,.. . _ =
In  t h e

Supreme (Court of tiro United States
O ctobee T e e m , 1978 

Nos. 78-432, 78-435, 78-436

U nited Steelwobkebs oe A mebica, AFL-CIO, et al.,
Petitioners,

— v.—

B bian F. W ebeb, et al.,
Respondents.

ON W BIT OF CEBTIOBAEI TO TH E UNITED STATES COUBT OF APPEALS 
FOB TH E FIF TH  CIECUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, 
AND THE SOCIETY OF AMERICAN LAW TEACHERS 

BOARD OF GOVERNORS AMICI CURIAE

E. R ichabd L abson 
B ust N eubobne 
B buce J. E nnis

American Civil Liberties 
Union Foundation 

22 East 40th Street 
New York, New York 10016

F b a n k  A skin
Rutgers University Law School 
180 University Avenue 
Newark, New Jersey 07102

Attorneys for Amici Curiae



TABLE OF CONTENTS
Page

Interest of the Amici...................1
Statement of the Case...................6
Summary of Argument................... .28
ARGUMENT...............................34
A. Petitioners' Race Conscious 

Training Program Does Not 
Unfairly Discriminate Against 
White Workers. Rather, It 
Serves The Moral And Legal End 
Of Remedying A Form Of Unjust 
Enrichment Caused By Reasonably 
Apprehended Racial Discrimina­
tion Against Minority Workers 
At Kaiser's Gramercy Plant. . . .34
1. There Is An Interlocking 

Relationship Between 
Racial Discrimination 
Against Minorities,
Unjust Enrichment For 
Whites And Race Conscious 
Remedial P l a n s .............34

2. Private Parties May Adopt
Remedial Plans Aimed At 
Redressing The Effects Of 
Reasonably Apprehended 
Racial Discrimination In 
Employment Without Await­
ing Governmental Permis­
sion Or Exposing Them­
selves To Retrospective 
Liability................... 42

-x-



a. Law And Logic 
Encourage Adoption 
of Remedial Plans . ,

b. On The Facts Here,
There Are No Risks 
In The Private 
Adoption Of 
Remedial Plans. . .

3. Voluntary Adoption Of
Race Conscious Measures 
Is Consistent With And 
Specifically Encouraged 
By Executive Order 
11246 And Title VII. . .
a. Executive Order 

11246 And Title 
VII Encourage 
Voluntary Compliance

b. Compliance With 
Executive Order 
11246 And Title 
VII Includes 
Adoption Of Race 
Conscious Measures.

B. Voluntary Adoption Of Race 
Conscious Measures Under 
Executive Order 11246 And 
Under Title VII Has Been 
Approved Repeatedly By 
Congress.....................

42

Page

46

. 48

. 49

. 55

. 74

-ii-



Page
1. In 1969, Congress Ratified

The Use Of Race Conscious 
Measures Under Executive 
Order 11246...............  75

2. In 1971-1972, Congress 
Again Ratified The Use
Of Race Conscious Measures 
Under Executive Order 
11246 And Incorporated The 
Order Into Title VII . . .  81

3. In 1978, Congress Yet 
Again Ratified The Use
Of Race Conscious Measures 
Under Executive Order 
11246.....................  90

4. Based Upon This Legisla­
tive History, Federal 
Agencies Have Affirma­
tively Sanctioned The 
Voluntary Use Of Race 
Conscious Measures . . . .  95

5. There Is No Conflict 
Between Executive Order 
11246 And Title VII. . . .  99e

C. Even Under The Erroneous Theory 
Of The Case Urged By Respon­
dents, The District Court Erred 
In Failing To Join A Represen­
tative Of The Affected Black 
Employees As A Necessary Party 
Under Rule 19(a) And In Failing 
To Allocate Properly The 
Burdens Of Proof............... 104

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Conclusion 118
Page

TABLE OF AUTHORITIES
Cases:
Airline Stewards and Stewardesses 

Ass'n v. American Airlines, Inc.,
490 F .2d 636 (7th Cir. 1973) . . .  Ill

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)...........12,19,30

35,48,49,59,74,75
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974).................  31
Allegheny Corp. v. Kirby, 333 

F .2d 327 (2d Cir. 1964) , 
aff'd by an equally divided 
court en banc, 340 F.2d 311 
(2d Cir. 1965), cert, dis­
missed, 384 U.S. 28 (1966)......... 45

Associated General Contractors 
of Mass., Inc. v. Altschuler,
490 F .2d 9 (1st Cir. 1973),
cert, denied, 416 U.S. 957
(1974)........................ 65,67,68

Banks v. Seaboard Coast Line 
R.R., 51 F.R.D. 304 (N.D.
Ga. 1970)........................... Ill

Beer v. United States, 425 U.S.
130 (1976).......................... 34

-IV-



Page
Bolden v. Pennsylvania State 

Police, C.A. No. 73-2604 
(E.D. Pa. June 21, 1 9 7 4 ) .......... 71

Boston Chapter, NAACP, Inc. v.
Beecher, 504 F.2d 1017 (1st 
Cir. 1974), cert, denied,
421 U.S. 910 (1975)................. 65

Bowe v. Colgate-Palmolive Co.,
416 F .2d 711 (7th Cir, 1969) 35,51,110

Bratt v. Western Airlines, 169 
F .2d 214 (9th Cir. 1948), 
cert, denied, 335 U.S. 886 
(19 ) .............................. 45

Bridgeport Guardians v.
Bridgeport Civil Service
Commission, 482 F.2d 1333
(2d Cir. 1973) ........... 20,63,64,65

Burbank v. General Electric 
Co., 329 F .2d 825 (9th Cir.
1964).................................45

Burrell v. Kaiser Aluminum &
Chemical Corp., Civ. No. 67-86 
(M.D. La., consent decree filed 
Feb. 24, 1 9 7 5 ) ......................21

Carter v. Gallagher, 452 F.2d 
327 (8th Cir.), cert, denied,
406 U.S. 950 (1972). . .20,63,64,65,66

Castaneda v. Partida, 430
U.S. 482 (1977)......................38

-v-



Page
Contractors Ass'n of Eastern 

Pennsylvania v. Secretary 
of Labor, 442 F.2d 159 (3d 
Cir.), cert, denied, 404 
U.S. 854 (1971). .57,61,66,67,68,75,87

Crockett v. Green, 534 F.2d
715 (7th Cir. 1976)................. 66

Culpepper v. Reynolds Metals
Co., 421 F .2d 888 (5th Cir. 1970). .51

Dent v. St. Louis-San Francisco 
Ry. Co., 406 F.2d 399 (5th 
Cir. 1 9 6 9 ) .......................... 51

Dothard v. Rawlinson, 433 U.S.
321 (1977)...................... 12,15

EEOC v. American Tel. & Tel. Co.,
556 F .2d 167 (3d Cir. 1977),
cert, denied, 57 L.Ed.2d 1161
(1978)..............................  71

EEOC v. Detroit Edison Co., 515 
F .2d 301 (6th Cir. 1975), 
vac'd and rem'd on other 
grounds, 431 U.S. 951 (1977) . . . .66

English v. Seaboard Coast Line 
R.R., 465 F .2d 43 (5th Cir.
1972).......................... 109,111

Erie Human Relations Commission 
v. Tullio, 493 F .2d 371 (3d 
Cir. 1 9 7 4 ) ..........................65

-vi-



Page
Ford Motor Co. v. Huffman, 345

U.S. 330 (1953).................  35,47
Franks v. Bowman Transportation

Co., 424 U.S. 747 (1976) . . .19,35,36
40,49,55

Fullilove v. Kreps, 584 F.2d 600
(2d Cir. 1 9 7 8 ) .....................  69

Furnco Construction Co. v.
Waters, 57 L.Ed.2d 957 (1978). 114,117

Griggs v. Duke Power Co., 401
U.S. 424 (1971)........... 12,58,98,117

Guerra v. Manchester Terminal 
Corp., 498 F .2d 641 (5th Cir.
1974).................................51

Hampton v. Mow Sun Wong, 426
U.S. 88 (1976)   99

Hayes v. Seaboard Coast Line 
R.R. , 3 C.C.H. EPD 1(8169 
(S.D. Ga. 1971).....................Ill

Howard v. Freedman, Civ. No.
74-234 (W.D.N.Y., May 12, 1975). . .71

Humphrey v. Moore, 375 U.S.
335 (1964)...................... 47,105

Hutchings v. United States 
Industries, Inc., 428 F.2d 
303 (5th Cir. 1970)..................51

-vxi-



Page
Kaspar Wireworks, Inc. v. Leico 

Engineering & Mach., Inc.f 
575 F . 2d 530 (5th Cir. 1978) . . .  .45

Lau v. Nichols, 414 U.S. 563 (1974). .98
Local 53, Asbestos Workers v.

Vogler, 407 F.2d 1047 (5th
Cir. 1969) ..........................  66

Lumbermen's Mutual Cas. Co. v.
Elbert, 348 U.S. 48 (1954) . . . .  107

McDonnell Douglas v. Green,
411 U.S. 792 (1973)...............  117

Moore v. Charlotte-Mecklenburg 
Board of Education, 402 U.S.
47 (1971)..........................  106

Morrow v. Crisler, 491 F.2d 1053 
(5th Cir.), cert, denied, 419 
U.S. 895 (1974)...................... 66

Morrow v. Dillard, 480 F.2d 1284
(5th Cir. 1978).................  20,64

Mullane v. Central Hanover Bank 
& Trust Co., 339 U.S. 306 
(1950)   111-112

Mullaney v. Wilbur, 421 U.S.
624 (1975)........................ 114

Muskrat v. United States, 219
U.S. 346 (1911)...................  106

-viii-



Page
NAACP v. Allen, 493 F.2d 614

(5th Cir. 1974)  ............. 66
Northeast Construction Co. v.

Romney, 485 F.2d 752 (D.C.
Cir. 1 9 7 3 ) .......................... 62

Oatis v. Crown Zellerbach Corp.,
398 F .2d 496 (5th Cir, 1968) . .

Oburn v. Shapp, 393 F.Supp. 561 
(E.D. Pa. 1975), aff'd, 521 
F .2d 142 (3d Cir. 1975), coll, 
chal. dism'd, 70 FRD 549 (E.D.
Pa. 1976), aff’d, 546 F.2d 418 
(3d Cir. 1976), cert, denied,
430 U.S. 968 (1977).............

Occidental Life Insurance Co. v.
EEOC, 432 U.S. 355 (1977). . . .

Parklane Hosiery Company, Inc. 
v. Shore, 47 U.S.L.W. 4079 
(Jan. 9, 1979) (U.S. No.
77-1305)....................... 44,105

Parson v. Kaiser Aluminum &
Chemical Corp., 575 F.2d
1374 (5th Cir. 1 9 7 8 ) ...........passim

Patterson v. Newspaper & Mail 
Deliverers' Union of New York,
514 F .2d 767 (2d Cir. 1975), 
cert, denied, 427 U.S. 911
(1976)....................... 36,54,71

Patterson v. New York, 432
U.S. 197 (1977)...................  114

. .52

71-72

50,82

-ix-



Page
Prate v. Freedman, 430 F.Supp.

1373 (W.D.N.Y. 1977), aff'd 
without op. (2d Cir., Oct.
17, 1977), cert, denied, 98
S.Ct. 2274 (1978)...................  71

Prate v. Freedman, 583 F.2d
42 (2d Cir. 1978).............

Provident Trademen Bank &
Trust Co. v. Patterson,
390 U.S. 102 (1968). . . . 107,108,109 

Regents of the University of
California v. Bakke, 57 L.
Ed.2d 750 (1978) ............. .passim

Rios v. Enterprise Association 
Steamfitters Local 638, 501 
F .2d 622 (2d Cir. 1974). . . .

Rossetti Contracting Co., Inc. 
v. Brennan, 508 F.2d 1039 
(7th Cir. 1975)...............

Sampson v. Radio Corp. of 
America, 434 F.2d 315 (2d 
Cir. 1 9 7 0 ) ............. . . .

Seaboard Shipping Corp. v. 
Jocharanne Tugboat Corp.,
461 F .2d 500 (2d Cir. 1972). . . . .  45

Sherill v. J.P. Stevens & Co., 
551 F.2d 308 (4th Cir. 1977) . . . .66

Shields v. Barrow, 17 How. 130 
(1854) ........................

-x-



Page
Southern Illinois Builders 

Association v. Ogilvie, 471 
F.2d 680 (7th Cir. 1 9 7 2 ) ...........66

Steele v. Louisville & Nashville
R.R., 323 U.S. 192 (1944). . . . 35,47

Sun Oil Co. v. Govoster, 474 F.2d
1048 (2d Cir. 1973)........ .. .45

Teamsters v. United States, 431
U.S. 324 (1977)........ 15,19,35,37,69

Triangle Industries, Inc. v.
Kennicott Copper Corp., 402
F.Supp. 210 (S.D.N.Y. 1975). . . .  .45

United Jewish Org. of Williamsburgh,
Inc. v. Carey, 430 U.S. 144
(1977).......................... 42,46

United States v. Allegheny-Ludlum 
Industries, Inc., 517 F.2d 826 
(5th Cir. 1975), cert, denied,
425 U.S. 944 (1976).22,36,52,71,72,113

United States v. Chicago, 549 
F .2d 415 (7th Cir. 1977), 
cert, denied, 434 U.S. 875 (1978). .66

United States v. International 
Union of Elevator Constructors,
538 F .2d 1012 (3d Cir. 1976) . . .  .57

United States v. Ironworkers 
Local 86, 443 F.2d 544 (9th 
Cir.), cert, denied, 404 U.S.
984 (1971) . .................... 66,88

-xi-



Page
United States v. Ironworkers Local 

86, 443 F .2d 544 (9th Cir.), 
cert, denied, 404 U.S. 984 (1971)
(1971).......................... 66,88

United States v. Johnson, 319
U.S. 302 (1943)...................  106

United States v. Local 38, IBEW 
428 F.2d 144 (6th Cir.), cert, 
denied, 400 U.S. 943 (1970).........66

United States v. Local 212, IBEW,
472 F .2d 634 (6th Cir. 1973) . . .  .66

United States v. Masonry
Contractors Association, 497 
F . 2d 871 (6th Cir. 1 9 7 4 ) ............ 66

United States v. New Orleans 
Public Service, Inc., 553 
F .2d (5th Cir. 1977) . .............. 61

United States v. N.L. Industries,
Inc., 479 F.2d 354 (8th Cir.
1973)................................. 66

United States v. Wood Lathers 
Local 46, 471 F.2d 408 (2d 
Cir.), cert, denied, 412 
U.S. 939 (1973)..................... 65

United States v. Wood, Wire &
Metal Lathers, Int'l Union,
471 F .2d 408 (2d Cir.), cert, 
denied, 412 U.S. 939 (1973).........72

-xxi-



Page

427 F.2d 476 (7th Cir. 1970) . . . 110
Western Union Telegraph Co. v.

Pennsylvania, 368 U.S. 71 (1961) . 107
In re Winship, 397 U.S. 358 (1969) . 114
Youngstown Sheet and Tube Co. v.

Sawyer, 343 U.S. 579 (1952). . 100,102

Waters v. Wisconsin Steel Works,
427 F.2d 476 (7th Cir. 1970) . . . 110

Western Union Telegraph Co. v.
Pennsylvania, 368 U.S. 71 (1961) . 107

In re Winship, 397 U.S. 358 (1969) . 114
Youngstown Sheet and Tube Co. v.

Sawyer, 343 U.S. 579 (1952). . 100,102

Statutes:
Pub.L. No. 95-480 (Oct. 18, 1978),

92 Stat. 1567...................  90,95
Public Works Employment Act of

1977, 42 U.S.C. §6705. .............. 68
Title VII of the Civil Rights 

Act of 1964, 42 U.S.C.
§§2000e , et seq..................passim

Executive Orders:
Executive Order 11246............. passim
Executive Order 12 067............. 96,98

-xiii



Page
Regulations:
Affirmative Action Programs for 

Government Contractors, 41 
C.F.R. Part 60-2  . . . . 1 7 , 2 3 , 6 1 , 6 3 , 9 6

Guidelines on Affirmative Action,
29 C.F.R. Part 1608.  . . . . . . . 6 3 , 97

Uniform Guidelines on Employee 
Selection Procedures, 29 
C.F.R. Part 1607 ................................... 59 ,96

Legislative History;
115 Cong. Rec. 16729-16733 (1969). . .77
115 Cong. Rec. 16799-16802 (1969). . .77
115 Cong. Rec. 39963 (1969). . . . .  .78
115 Cong. Rec. 39961 (1969). . . . 79,81
115 Cong. Rec. 39973 (1969)........... 79
115 Cong. Rec. 40013 (1969)..........[77
115 Cong. Rec. 40018-40019 (1969). . \ll
115 Cong. Rec. 40749 (1969)..........  81
115 Cong. Rec. 40907 (1969)........ .* 81
115 Cong. Rec. 40921 (1969)...........81
117 Cong. Rec. 31784 (1971)...........83
117 Cong. Rec. 3 1 9 8 1 ................. 83
117 Cong. Rec. 31984 ................ *83
117 Cong. Rec. 31975 ................ !s4
117 Cong. Rec. 32089 ... ............ ^85
117 Cong. Rec. 32111-32112 (1971). .’ .*85
118 Cong. Rec. 1662 (1972).......... 86
118 Cong. Rec. 1663 (1972).......... 86

-XIV'



Page
118 Cong. Rec. 1664-1676 (1972). . 87,88 
118 Cong. Rec. 1665 (1972) . . . .  87,88 
118 Cong. Rec. 1665-1675 (1972). . . .88 
118 Cong. Rec. 1675-1676 (1972). . . .88 
118 Cong. Rec. 4917-4918 (1972). . 88,89
124 Cong. Rec. 5371 (1978) . . . .  91,92
124 Cong. Rec. 5372 (1978)........... 92
124 Cong. Rec. 5374 (1978)........... 93
124 Cong. Rec. 5376 (1978)........... 93
124 Cong. Rec. 16280 (1978)........... 93
124 Cong. Rec. 16283(1978) . . . . .  .94
Report No. 95-1746, 95th Cong.,

2d Sess., 25 (Oct. 6, 1978)...........94

Books and Articles:
Cleary, Presuming and Pleading:

An Essay on Juristic Immaturity,
12 Stan.L.Rev. 5 (1959)........... 115

Comment, The Philadelphia Plan:
A Study in the Dynamics of 
Executive Power, 39 U.Chi.L.
Rev. 723 (1972).................  75,76

Hart, H. & Sachs, A., The Legal 
Process: Basic Problems in 
the Making and Application of 
Law, 183-85 (Unpub. Ed. 1958). . . 116

James, Burdens of Proof, 47
U.Va.L.Rev. 51 (1961).............. 114

-xv-



Page
Underwood, The Thumb on the Scale 

of Justice: Burdens of Persuasion 
in Criminal Cases, 86 Yale L.J.
1299 (1977)...................  114-115

-xvi-



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1978 
Nos. 78-432, 78-435, 78-436

UNITED STEELWORKERS OF AMERICA, 
AFL-CIO, et al.,

Petitioners,
-v. -

BRIAN F. WEBER, et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION, AND THE 

SOCIETY OF AMERICAN LAW TEACHERS 
BOARD OF GOVERNORS 

AMICI CURIAE

Interest of the Amici*

The American Civil Liberties Union 
for 59 years has devoted itself exclu­
sively to protecting the fundamental 
rights of the people of the United States.

* The parties have consented to the filing of 
this brief and their letters of consent have been 
filed with the Clerk of the Court pursuant to 
Rule 42(2) of the Rules of this Court.



For nearly a decade, the governing 
board of our 200,000-member national 
organization has vigorously debated the 
issue of "affirmative action"— particu­
larly when the need to eradicate the 
cumulative effects of systemic discrim­
ination against minorities results in 
the adoption of race conscious numerical 
measures.

The intensity and vigor of these 
discussions have heightened the ACLU's 
realization that the major civil liber­
ties issue still facing the United 
States is the elimination, root and 
branch, of all vestiges of racism. No 
other right surpasses the wholly justi­
fied demand of the nation's discrete and 
insular minorities for access to the
American mainstream from which they have 
so long been excluded. In recognition 
of this right, the ACLU has adopted the 
following statement of policy:

"The root concept of the principle 
of non-discrimination is that 
individuals should be treated 
individually, in accordance with 
their personal merits, achievements 
and potential, and not on the basis 
of the supposed attributes of any 
class or caste with which they

-2-



may be identified. However, when 
discrimination— and particularly 
when discrimination in employment 
and education— has been long and 
widely practiced against a 
particular class, it cannot be 
satisfactorily eliminated merely 
by the prospective adoption of 
neutral, ’color-blind' standards 
for selection among the applicants 
for available jobs or educational 
programs. Affirmative action is 
required to overcome the handicaps 
imposed by past discrimination of 
this sort; and, at the present time, 
affirmative action is especially 
demanded to increase the employment 
and the educational opportunities 
of racial minorities."

Pursuant to this policy, the ACLU 
supports, as an affirmative action 
measure, the use of "in-service training" 
which will "develop or upgrade the 
potential performance of under-represented 
groups in order to assure their retention 
and make the affirmative action program 
work in practice." The ACLU has further 
recognized that "in order to eradicate 
the effects of past discrimination and 
to increase the representation of sub­
stantially underrepresented groups," it 
is at times necessary to "support a 
requirement that a certain number of

-3-



persons within a group which has suffered 
discrimination be employed within a 
particular timetable." This is such a 
case. Accordingly, the ACLU urges this 
Court to reverse the decision of the 
United States Court of Appeals for the 
Fifth Circuit.

The Society of American Law Teachers 
is a professional organization, formed in 
1973, of approximately 500 professors of 
law at more than 120 law schools in the 
United States. Among its stated purposes 
is the encouragement of fuller access of 
racial minorities to the legal profession; 
since its inception the Society has been 
active in supporting the adoption and 
maintenance of special minority admissions 
programs at American law schools. Its 
position is that voluntary affirmative 
action programs are fully consistent with 
the requirements of the federal laws 
designed to eradicate racial discrimina­
tion. The Society believes that 
affirmance of the decision below would 
seriously jeopardize the efforts of all 
American institutions which are trying 
to end the historic exclusion of blacks

-4-



and other racial minorities from the 
American mainstream.

For these reasons, the Society of 
American Law Teachers joins in this brief 
urging this Court to reverse the decision 
of the United States Court of Appeals for 
the Fifth Circuit, and to uphold the 
legality of voluntary affirmative action.

-5-



STATEMENT OF THE CASE
Pursuant to their 1974 Labor Agree­

ment, petitioner Kaiser Aluminum & 
Chemical Corporation [hereinafter 
"Kaiser"] and petitioner United Steel­
workers of America [hereinafter 
"Steelworkers"] agreed to institute on- 
the-job training programs in skilled 
craft classifications for the benefit of 
incumbent minority and white employees.
In order to meet its affirmative action 
goal which it established pursuant to 
Executive Order 11246, Kaiser agreed with 
the Steelworkers that in the new on-the- 
job training programs "not less than one 
minority employee will enter for every 
nonminority employee entering until the 
goal is reached unless at a particular 
time there are insufficient available 
qualified minority candidates." 1974
Labor Agreement, Addendum to Art. 9. See 
563 F.2d at 222; 415 F .Supp. at 763.

The one-to-one entry ratio of this 
new training program was challenged as 
violative of Title VII by respondent 
Brian Weber, an incumbent unskilled white 
employee at Kaiser's plant in Gramercy,

-6-



Louisiana, who but for the 1974 Labor 
Agreement would have had no opportunity 
for employment in a skilled craft posi­
tion. The district court upheld respon­
dent Weber's challenge and enjoined 
petitioners from implementing their new 
training program with its one-to-one 
ratio. 415 F.2d 761 (E.D. La. 1976).
A majority of a panel of the court of 
appeals affirmed. 563 F.2d 216 (5th Cir. 
1977) (per Judges Gee and Fay; Judge 
Wisdom dissenting). Rehearing was denied. 
571 F .2d 337 (5th Cir. 1978).

In reaching their decisions, the 
courts below found that Kaiser, prior to 
1974, had maintained a nondiscrimination 
policy and in fact had not unlawfully 
discriminated against minorities in the 
past. 563 F .2d at 224; 415 F.Supp. at 
764. Given the attenuated trial in this 
case, and especially given the interests 
and potential liabilities of the respect­
ive parties, that finding is hardly 
surprising.—^ That finding, nonetheless,

1. This finding of no ]6ast discrimination 
against minority workers is not binding here 
because the courts below erred as a matter of 
law in applying Title VII law to Kaiser's past

-7-



does not alter the impact of other impor­
tant facts in this case: (1) that peti-

2 /tloners— reasonably could have believed 
that they had in the past discriminated 
unlawfully against minority workers; (2) 
that petitioners in fact were confronted 
with a prima facie case of unlawful 
discrimination against minority workers;
(3) that petitioners' employment statis­
tics manifested a severe deficiency in 
minority worker utilization; (4) that 
petitioners were confronted with possible 
liability in a minority or EEOC instituted 
lawsuit, and with possible loss of lucra­
tive government contracts through enforce­
ment of Executive Order 11246 by the 
Office of Federal Contract Compliance

employment practices. In any event, other 
findings fully support the proposition that peti­
tioners reasonably could have believed that they 
had discriminated unlawfully against minority 
workers in the past. See, pp. 9-16, infra.
2. Although the United States and the EEOC also 
are petitioners in this Court, they are not 
referred to in this brief. Our references to 
"petitioners" herein thus is intended to apply 
only to Kaiser and the Steelworkers.

-8-



Programs [hereinafter "OFCCP"]; (5) that
petitioners were well aware of the 
government negotiations with the steel 
industry which led to the Steel Industry 
Consent Decree; and (6) that petitioners, 
aware of these facts, negotiated their 
1974 Labor Agreement which denied no 
seniority expectations or job security 
to any incumbent white employees but 
which instead created new employment 
opportunities both for incumbent white 
employees and for incumbent minority 
employees.

Only through a review of this impor­
tant factual background can the propriety 
of petitioners' 1974 Labor Agreement be 
fairly analyzed.

A. Petitioners Reasonably Could Have
Believed That They Had Discriminated
Unlawfully Against Minority Workers
Kaiser opened its Gramercy plant in 

1958. 563 F.Supp. 224; 415 F.Supp. 764.
At that time, by law and tradition, nearly 
all employment opportunities in the South 
were rigidly segregated. Kaiser does not 
appear to have violated tradition: in a

-9-



minority-initiated Title VII case, a 
unanimous court of appeals panel found 
that at Kaiser's plant in nearby Chalmette, 
Louisiana, "the physical facilities of 
the plant were rigidly segregated" prior 
to the effective date of Title VII.
Parson v. Kaiser Aluminum & Chemical
Corp., 575 F .2d 1374, 1378 (5th Cir. 1978).

Although segregation did not require 
denial of all employment to minorities, 
it did relegate minorities to the lowest 
paying, least desirable jobs. Skilled 
craft jobs were high paying, desirable 
jobs rarely if ever filled by minorities.
At Kaiser's plant in Chalmette, minorities 
had been hired "only as laborers." Parson 
v. Kaiser Aluminum & Chemical Corp., 575 
F.2d 1374, 1378 (5th Cir. 1978).

Prior to the 1974 Labor Agreement, 
Kaiser did not hire skilled craft employees 
from among its incumbent unskilled work­
force. Instead, it hired experienced 
craft workers from outside its plants.
This was so at its Chalmette plant, Parson 
v ‘ Kaiser Aluminum & Chemical Corp., 575 
F.2d 1374, 1381 (5th Cir. 1978), and also 
at its Gramercy plant, 563 F.2d at 218,

-10-



231-232; 415 F.Supp. at 764.
In hiring skilled craft employees at

its Gramercy plant, Kaiser used a
purportedly neutral criterion which had a

3 /discriminatory effect. — Prior to the 
1974 Labor Agreement, Kaiser required 
craft applicants at its Gramercy plant to 
have prior craft experience. 563 F.2d at 
218, 224, 231-232; 415 F.Supp. at 764.
The discriminatory effect of this purport­
edly neutral practice resulted in a 
skilled craft workforce at Kaiser's' 
Gramercy plant which was only 2%-2 1/2% 
minority, 563 F.2d at 224; 415 F.Supp. at 
764, in a community with a relevant labor 
force which was 39% minority/ 563 F.2d 
at 222. Kaiser's maintenance of an 
identical prior craft experience require­
ment at its Chalmette plant had a

3. The record here does not reflect whether 
discriminatory written tests and diploma require­
ments were used by Kaiser to select its craft 
workers at its Gramercy plant prior to 1974. But 
Kaiser probably used the same criteria as it did 
at its Chalmette plant where Kaiser regularly used 
discriminatory, unvalidated, and hence unlawful 
written tests and diploma requirements. Parson 
v. Kaiser Aluminum & Chemical Corp., 575 F.2d 
1374, 1381 (5th Cir. 1978).

-11-



similarly severe discriminatory effect, 
a reality which led the Fifth Circuit to 
hold "that the [minority] plaintiff made 
a prima facie showing that the current 
system, with its prior experience require­
ment, is discriminatory in effect."
Parson v. Kaiser Aluminum & Chemical Corp., 
575 F.2d 1374, 1390 (5th Cir. 1978).

In view of these practices, Kaiser 
reasonably could have believed that it 
had discriminated unlawfully against 
minority workers. Griggs v. Duke Power 
Co., 401 U.S. 424 (1971); and Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975). 
"Those cases make clear that to establish 
a prima facie case of discrimination, a 
plaintiff need only show that the facially 
neutral standards in question select 
applicants for hire in a significantly 
discriminatory pattern." Dothard v. 
Rawlinson, 433 U.S. 321, 329 (1977).

Significantly, Kaiser's discrimina­
tory employment practices not only were 
known to the OFCCP but they were the 
subject of findings and recommendations 
by the OFCCP in 1971, and of a further 
report by the OFCCP in 1973.

-12-



In the 1973 report, the OFCCP found 
that Kiaser had engaged in discrimination 
against minority workers by waiving its 
prior craft experience requirement for 
whites but not for minorities. This 
finding served to confirm the OFCCP's 
findings and recommendations rendered two 
years earlier.

In 1971, after a full-scale compli­
ance review, the OFCCP rendered general 
findings of discrimination against Kaiser 
on the grounds that Kaiser's hiring of 
craft workers at the Gramercy plant 
discriminated against minorities in vio­
lation of the Executive Order. The OFCCP 
at that time recommended that Kaiser 
establish a training program in which 50%
of the craft trainees would be minority 

4/workers.—
4. Although the 1971 findings and recommendations 
and the 1973 report were not made a part of the 
record in the district court, they have been 
lodged with the Clerk of this Court by petitioners 
United States and EEOC in No. 78-436.

In any event, the district court found that 
one of petitioner's "prime motivations" for adopt­
ing the one-to-one training ratio was "satisfying 
the requirements of the OFCC." 415 F.Supp. at 
765; see also, 563 F .2d at 218.

-13-



B. Petitioners In Fact Were Confronted 
With A Prima Facie Case Of Unlawful 
Discrimination Against Minority 
Workers
Kaiser hired its Gramercy employees 

primarily from two parishes which together 
had a minority population of approximately 
43% at the time of trial. 563 F.2d at 222 
n.ll, 228; 415 F.Supp. at 764. The labor 
market in those parishes was estimated to 
be 39% minority. 563 F.2d at 222 n.ll,
228.

Kaiser's work force presented a 
totally different picture. At the time 
of trial, the Kaiser work force at its 
Gramercy plant was 14.8% minority. 563 
F.2d at 224, 228; 415 F.Supp. at 764.

Kaiser's skilled work force in its 
craft positions was even more severely 
underrepresentative. Prior to the 1974 
Labor Agreement, only 5 minority workers 
had been hired into those positions—  
resulting in a skilled work force which 
was only 2%-2 1/2% minority. 563 F.2d at 
224; 415 F.Supp. at 764. In fact, Kaiser's 
skilled work force may have been only 1.7% 
minority. 563 F.2d at 228.

-14-



These statistics alone, for which 
petitioners were fully accountable, were 
and remain sufficient to create a prima 
facie case of discrimination. As this 
Court explained in Teamsters v. United 
States, 431 U.S. 324 (1977):

"Statistics showing racial or 
ethnic imbalance are probative 
in a case such as this one only 
because such imbalance often is 
a telltale sign of purposeful 
discrimination; absent explana­
tion, it is ordinarily to be 
expected that nondiscriminatory 
hiring policies will in time 
result in a work force more or 
less representative of the 
racial and ethnic composition 
of the population in the commu­
nity from which employees are 
hired." 431 U.S. at 339 n.20.

As in Teamsters, the statistics here 
established a prima facie case of 
discrimination. 431 U.S. at 337-343.
See also, Dothard v. Rawlinson, 433 U.S. 
321, 329-330 (1977) (the relevant labor 
market which was 36.9% female compared 
with employer's work force which was 
only 12.9% female established a prima 
facie case of discrimination).

-15-



Aware of its statistics, coupled 
with its discriminatory prior experience 
requirement, Kaiser was sitting on a 
prima facie case of discrimination at 
its Gramercy plant no different from that 
at its Chalmette plant. Compare the 
statistical prima facie case in Parson v. 
Kaiser Aluminum & Chemical Corp., 575 
F .2d 1374, 1378, 1389-1390 (5th Cir.
1978) .

C. Petitioner’s Employment Statistics 
Manifested A Severe Deficiency In 
Minority Worker Utilization
As a government contractor, Kaiser 

is bound by the requirements of Executive 
Order 11246 and the rules and regulations 
promulgated thereunder. Even without 
regard to Kaiser's past practices and its 
prima facie case of discrimination,
Kaiser was required by §202 of Executive 
Order 11246 to "take affirmative action."

Evidence of affirmative action is 
manifested initially by the existence of 
an affirmative action program. As 
described in regulations promulgated by

-16-



the Secretary of Labor, an "affirmative 
action program is a set of specific and 
result oriented procedures." 41 C.F.R. 
§60-2.10. An essential part of an 
affirmative action program is the 
establishment of "goals and timetables" 
for positions in which the employer "is 
deficient in the utilization of minority 
groups and women." Id.

In order to establish their goals 
and timetables and their result oriented 
procedures to attain those goals and 
timetables, employers such as Kaiser are 
required to conduct a "utilization 
analysis," which includes both an analy­
sis of the employer's work force and an 
analysis of labor force availability.
41 C.F.R. §60-2.11. Underutilization 
exists when the utilization analysis 
shows that the employer has "fewer 
minorities or women in a particular job 
than would be expected by their availa­
bility." Id. Underutilization of 
minorities, the Secretary of Labor has 
pointed out, is especially likely to 
exist in skilled craft jobs. Id.

A utilization analysis for skilled
-17-



craft jobs at Kaiser's Gramercy plant was 
quite simple to perform--especially in 
1974 when the prior craft experience 
requirement was eliminated. A work force 
analysis would have revealed less than 
2 1/2% minority representation in Kaiser's 
skilled crafts; the availability analysis 
would have revealed 39% minority worker 
availability. 563 F.2d at 224, 228; 415 
F.Supp. at 764.

Given Kaiser's severe deficiency in 
its utilization of minority workers, it 
was required by Executive Order 11246 and 
the regulations thereunder to establish 
goals and timetables with specific result 
oriented procedures to attain its goals.

D . Petitioners Were Confronted With
Possible Liability In A Minority Or 
EEOC Initiated Lawsuit, And With 
Possible Loss Of Lucrative Govern­
ment Contracts Through Enforcement 
Of Executive Order 11246 By The OFCCP
Petitioners Kaiser and Steelworkers, 

with their reasonable belief that they 
had discriminated unlawfully against 
minority workers and with their prima 
facie case of unlawful discrimination,

-18-



were ready targets for a minority or EEOC 
initiated lawsuit under Title VII. Cf., 
Parson v. Kaiser Aluminum & Chemical Corp., 
575 F .2d 1374 (5th Cir. 1978). Given 
those facts and also given Kaiser's severe 
deficiency in utilization of minority 
workers, Kaiser also faced the very real 
possibility of OFCCP enforcement under 
Executive Order 11246.

Potential Title VII liability could 
hardly have been appealing to Kaiser and 
the Steelworkers. Rather than choosing 
to leave the seniority of their incumbent 
employees intact, they faced the possibi­
lity of a court-ordered restructuring of 
their seniority placement in order to 
provide rightful place seniority to all 
minorities who had been discriminated 
against. Teamsters v. United States,
431 U.S. 324 (1977); Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976). 
And despite any asserted absence of 
discriminatory intent, they also could 
be held liable for class-wide back pay. 
Albemarle Paper Co. v. Moody, 422 U.S.

-19-



405 (1975).-/
Kaiser's prospects under OFCCP 

enforcement of Executive Order 11246 were 
no more appealing. If Kaiser were found 
to be in noncompliance, the OFCCP under 
§209 (a) (5) of the Executive Order could 
"cancel, terminate, suspend, or cause to 
be cancelled, terminated or suspended" 
all of Kaiser's current government con­
tracts. If Kaiser were found to be a 
"nonresponsible" contractor, the OFCCP 
under §209(a)(6) of the Executive Order 
could require all federal agencies "to 
refrain from entering into contracts" 
with Kaiser.

These possibilities of Title VII 
liability and of OFCCP enforcement were

6. In addition, of course, Kaiser faced the 
possibility of court-ordered goals and hiring 
ratios. See, Bridgeport Guardians v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 (2d Cir. 
1973), and Carter v. Gallagher, 452 F.2d 327 
(8th Cir.), cert, denied, 406 U.S. 950 (1972), 
both cited with approval in Regents of the Uni­
versity of California v. Bakke, 57 L,Ed.2d 750,
778 (1978)(opinion of Powell, J.). See also, 
Morrow v. Dillard, 480 F.2d 1284 (5th Cir. 1978) .

-20-



not fanciful to Kaiser and the Steel­
workers. Two of Kaiser's Louisiana 
plants had already been sued by minority 
plaintiffs under Title V I I . A n d  the 
OFCCP had already made findings of
discrimination as to Kaiser's employment 

8 /practices.— in view of these actions, 
as the majority of the court of appeals 
panel found, the training ratio set forth 
in "the collective bargaining agreement 
was entered into to avoid future litiga­
tion and to comply with threats of the 
Office of Federal Contract Compliance 
Programs [OFCCP] conditioning federal 
contracts on appropriate affirmative 
action." 563 F.2d at 218. See also,
415 F.Supp. at 765.

7. The litigation against the Chalmette plant, 
commenced in 1967, is reviewed in Parson v. 
Kaiser Aluminum & Chemical Corp,, 575 F.2d 1374 
(5th Cir. 1978). The litigation against 
Kaiser's plant in Baton Rouge, also commenced in 
1967, was settled by a consent decree costing 
Kaiser $255,000 in class back pay, Burrell v. 
Kaiser Aluminum & Chemical Corp., Civ. No. 67-86 
(M.D. La., consent decree filed Feb. 24, 1975).

See note 4, supra, and accompanying text.

-21-



Government Negotiations With The
Steel Industry Which Led To The
Steel Industry Consent Decree
At the time that the Steelworkers 

union was negotiating its contract with 
Kaiser in late 1973 and early 1974, the 
union also was involved in the final 
stages of equal employment negotiations 
with nine major steel companies, the EEOC 
and the Department of Labor's OFCCP.
When those negotiations were successfully 
completed, the United States (on behalf 
of the EEOC and the Department of Labor) 
filed suit to enforce Title VII and 
Executive Order 11246 against the nine 
major steel companies and the Steelworkers 
with regard to the employment practices 
at approximately 250 steel plants. On 
the same day suit was filed, April 4,
1974, the parties filed and a district 
court approved two consent decrees. See 
Steel Industry Consent Decree, BNA Fair 
Employment Practices Manual ["FEP"], 
431:125-152 (1974), reviewed and approved 
in United States v. Allegheny-Ludlum 
Industries, Inc., 517 F.2d 826 (5th Cir. 
1975), cert, denied, 425 U.S. 944 (1976).

E . Petitioners Were Aware Of The

-22-



The Steel Industry Consent Decree con­
tained a standard disclaimer of liability. 
BNA FEP 4 3 1 : 1 2 5 - 1 2 6 . It required goals 
and timetables, and created a one-to-one, 
minority-to-white training ratio for each 
craft at each plant. BNA FEP 431:138- 
139.— ^ The price of enforced compliance

9. In the introduction to the Consent Decree, the 
companies and union "expressly deny" any "failure 
to comply" with Title VII and E.O. 11246. BNA FEP 
431:125. In the preamble, 1[B adds a similar dis­
claimer, stating that nothing in the decree "shall 
be construed to be, or shall be admissible in any 
proceeding as evidence of, an admission by defen­
dants" of Title VII or E.O. 11246 violations. BNA 
FEP 431:126.
10. In 1110 of the Decree, defendants agreed to 
implement goals and timetables for minorities and 
women in each trade and craft based upon a "utili­
zation analysis of the craft jobs in each Trade 
and Craft" conducted pursuant to the OFCCP regula­
tions in 41 C.F.R. Part 60-2 issued under Executive 
Order 11246. In order to meet the goals and time­
tables, defendants agreed in If 10 (d) to an "imple­
menting ratio of 50%...for each Trade and Craft 
grouping at each plant, to the extent that qualified 
applicants from such groups are available within 
the plant, until the goals therefor have been 
achieved." In what is known as a seniority over- 
ride, 1(10 (e) provided: "In order to meet the 
implementing ratio, seniority factors shall be 
applied separately to each group for whom time­
tables are established and to all other employees." 
BNA FEP 431:138-139.

-23-



did not come cheap: the Consent Decree 
established a back pay fund for minority 
employees totaling more than $30 million. 
BNA FEP 431:143.

F • Aware Of These Facts, Petitioners 
Negotiated Their 1974 Labor Agree­
ment Which Denied No Seniority 
Expectations Much Less Job Seniority 
To Incumbent White Employees But 
Which Instead Created New Employment 
Opportunities For Minority And White 
Incumbent Employees
In view of their past employment 

practices, in view of their prima facie 
case of unlawful discrimination against 
minority workers, in view of their defi­
ciency in minority worker utilization, in 
view of potential liability to minorities 
in Title VII litigation and of possible 
additional enforcement of the Executive 
Order by OFCCP, and in view of the Steel 
Industry Consent Decree— in view of all 
of these factors--petitioners Kaiser and 
Steelworkers negotiated their 1974 Labor 
Agreement.

Neither in that agreement or apart 
from that agreement did they restructure 
seniority expectations by providing 
rightful place seniority to minority

-24-



employees, nor did they establish a back 
pay fund. Instead, they took another 
very important step in achieving voluntary 
compliance with Title VII and Executive 
Order 11246.

Petitioners Kaiser and the Steel­
workers for the first time opened their 
craft training programs to incumbent 
employees. By this step, they sought to 
remedy their deficiency in minority worker 
utilization by establishing a one-to-one, 
minority-to-white training ratio. 563 
F.2d at 222; 415 F.Supp. at 763. These 
provisions, identical to those in the 
Steel Industry Consent Decree, compare,
BNA FEP 431:138-139, were "incorporated 
in the national collective bargaining 
agreement, governing fifteen Kaiser plants 
across the country. Very similar provi­
sions were included in the Union's con­
tracts with the other two major American 
aluminum producers, Reynolds Metals and 
ALCOA." 563 F.2d at 229.

The 1974 Labor Agreement may have 
disappointed some long-passed over 
minority workers. But Kaiser and the 
Steelworkers undoubtedly believed that

-25-



they had well represented all of their 
employees, minority and white alike.
They finally had provided an opportunity 
for minority entry into the skilled 
crafts. And they did so without upset­
ting seniority placement. "No white 
workers lost their jobs, none had 
expectations disappointed." 563 F.2d 
at 234. They were able to accomplish 
this through the creation of new train- 
ing programs which provided new opportu­
nities to minority and white incumbent 
employees. "None of the white or black 
employees affected by this proposal had 
any chance to receive craft training 
from Kaiser before the 1974 Agreement."ii/ 
563 F.2d at 234.

The 1974 Labor Agreement marked an 
additional accomplishment for Kaiser and 
the Steelworkers. Without the time and

11. During the one year that the new training 
opportunities existed at the Gramercy plant, 
before the program was enjoined by the district 
court, 12 incumbent employees (7 minority and 5 
white) who had no chance to enter the skilled 
craft positions prior to 1974 were accepted for 
skilled craft training. 563 F.2d at 222-223; 
415 F.Supp. at 764.

-26-



expense of another minority initiated 
lawsuit under Title VII, without the 
time and expense of an EEOC lawsuit 
under Title VII, without the time and 
expense of OFCCP enforcement proceedings 
under Executive Order 11246, and without 
the expenditure of judicial time and 
effort, Kaiser and the Steelworkers 
exemplified the ideals of pursuing 
voluntary compliance with the means and 
objectives of equal employment opportu­
nity. Kaiser complied with its very 
specific obligations under the Executive 
Order. And Kaiser and the Steelworkers, 
based at a minimum upon the one-to-one 
training ratio in the Steel Industry 
Consent Decree, believed that they were 
complying with Title VII.

-27-



SUMMARY OF ARGUMENT
The race conscious training program 

for skilled craft positions, adopted by 
petitioners Kaiser and the Steelworkers 
at the same time that they opened these 
skilled craft positions for the first 
time to incumbent employees such as 
respondent Weber, represents a reason­
able and lawful effort to remedy the 
near-total.exclusion of minority workers 
from the skilled crafts while also 
providing new employment opportunities 
to incumbent white workers. This race 
conscious remedial effort does not 
contravene but instead is fully consis­
tent with the language and objectives of 
Title VII and Executive Order 11246.

Despite superficial similarities to 
Regents of the University of California 
v. Bakke, 57 L.Ed.2d 750 (1978), this 
case has arisen on very different facts 
and in a quite distinct legal context.
In Bakke, (1) the race conscious program
was undertaken by a state entity bound 
by the Fourteenth Amendment; (2) imple­
mentation of the program defeated the

■2 8-



expectations of some white applicants 
who arguably were better qualified on 
paper than some of the minority appli­
cants; and (3) adoption of the program 
was premised upon remedying societal 
discrimination against minorities and 
not upon the user's reasonable belief 
that it itself had engaged in unlawful 
past discrimination against minorities. 
The issue here is posed in a quite 
dissimilar context. Here, (1) the race 
conscious program was established by 
private parties encouraged to undertake 
such programs by Title VII and Executive 
Order 11246; (2) implementation of the
program defeated no expectations of 
white workers, involved no claims that 
the white workers were more qualified 
than the minority workers, and in fact 
created new advancement opportunities 
for the white workers as well as for 
minority workers; and (3) adoption of 
the program was premised upon the users' 
reasonable belief that they had engaged 
in unlawful past discrimination against 
minorities.

-29-



A. Voluntary compliance with Title 
VII and Executive Order 11246 through the 
adoption of race conscious measures has 
been repeatedly recognized by the courts 
of appeals and by this Court as necessary 
"'to eliminate, as far as possible, the 
last vestiges of an unfortunate and 
ignominious page in this country's 
history.'" Albemarle Paper Co. v. Moody, 
422 U.S. 405, 417-418 (1975) (citation 
omitted). When an employer has a defi­
ciency in minority worker utilization, 
and especially when there are reasonable 
grounds to believe that the employer has 
discriminated against minority workers 
in the past, Title VII not only permits 
but encourages voluntary compliance 
through the adoption of race conscious 
numerical measures which provide minority 
worker entry to the work place. In 
these same circumstances, Executive 
Order 11246 explicitly encourages the 
adoption of such race conscious numeri­
cal measures. In view of the fact that 
" ooperation and voluntary compliance" 
are the "preferred means" of achieving

-30-



the remedial objectives of Title VII and 
the Executive Order, Alexander v. 
Gardner-Denver Co.. 415 U.S. 36, 44 
(1974), Title VII cannot be violated by 
a reasonably-based, race conscious 
numerical measure which is voluntarily 
adopted in order to accomplish those 
objectives.

B. The use of race conscious 
numerical measures, permissible under 
Title VII and explicitly encouraged 
under Executive Order 11246, has been 
ratified by Congress on three occasions 
in the past decade. (1) In 1969,
Congress debated the legality of the 
race conscious numerical measures in the 
Philadelphia Plan and ultimately endorsed 
those measures as appropriate under 
Executive Order 11246 and Title VII.
(2) In 1971-1972, during its considera­
tion of the Equal Employment Opportunity 
Act of 1972, Congress forthrightly 
rejected one amendment in the House and 
two amendments in the Senate that would 
have prohibited the EEOC and the OFCCP 
from requiring race conscious numerical

-31_



measures. (3) More recently, in 1978, 
Congress again rejected amendments which 
would have barred federal agencies from 
requiring the adoption of race conscious 
numerical measures. Congress' explicit 
approval of race conscious numerical 
measures cannot be undermined by this 
Court.

C. Even if this Court repudiates 
the objectives of Title VII and Executive 
Order 11246 and rejects Congress' express 
ratification of the use of race conscious 
numerical measures, the court below erred 
in attempting to resolve the legality of 
the remedial measure without a meaningful 
adversary hearing. If judicially deter­
mined past discrimination is a necessary 
prerequisite to a race conscious remedial 
plan, the presence or absence of such 
discrimination cannot be determined 
without an adversarial contest. Given 
the interests of all the parties in the 
district court of denying the existence 
of actual unlawful discrimination, 
procedural fairness and Rule 19(a) F.R. 
C.P. required the joinder of the affected

-32-



minority workers as necessary parties. 
Additionally, given the traditional 
allocation of burdens of proof, respon­
dent Weber, as plaintiff below, was 
required to prove the absence of unlaw­
ful discrimination against the minority 
workers. Neither procedure was followed 
by the district court. Thus, even under 
respondents' erroneous theory in this 
case, the district court's procedural 
errors require a reversal of the judg­
ment below.

-33-



ARGUMENT
A . Petitioners 1 Race Conscious Training 

Program Does Not Unfairly Discrimi-~ 
nate Against White Workers. Rather, 
It Serves The Moral And Legal End Of 
Remedying A Form Of Unjust Enrichment 
Caused By Reasonably Apprehended 
Racial Discrimination Against Minority 
Workers At Kaiser's Gramercy Plant
1. There Is An Interlocking Rela­

tionship Between Racial Discrim­
ination Against Minorities" 
Unjust Enrichment For Whites 
And Race Conscious Remedial Plans

This Court has recognized that judi­
cially imposed remedial plans aimed at 
eradicating the effects of unlawful racial 
discrimination by an employer may adversely 
affect white workers who did not partici­
pate directly in the discrimination.

12. A serious question exists in this case as to 
whether any white worker can be said to be 
adversely affected by the training program 
established by petitioners. Prior to the train­
ing program, no incumbent employee— black or 
white— was eligible for apprenticeship trade or 
craft training. Thus, the challenged program 
actually benefits the very incumbent white workers 
who challenge it. Gf., Beer v. United States,
425 U.S. 130 (1976) (reapportionment which 
incrementally improves status of black voters 
does not violate §5 of the Voting Rights Act). 
Moreover, it is clear that whatever seniority

-34-



E.g., Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976); Albemarle Paper Com­
pany v. Moody, 422 U.S. 405 (1975). See 
also, Teamsters v. United States, 431 
U.S. 324 (1977). In approving such

advantages incumbent white workers may have 
believed they possessed in gaining access to the 
training program, those advantages were subject 
to revision during the collective bargaining 
process.

Seniority rights are not vested in 
individual employees; rather, a collective 
bargaining representative may alter and even 
lessen seniority expectations of individual union 
members in order "to promote the long range 
social or economic welfare of those it repre­
sents. " Ford Motor Co. v. Huffman, 345 U.S. 330, 
342 (1953). As Mr. Justice Burton wrote for a 
unanimous Court, there is no requirement for "a 
bargaining representative to limit seniority 
clauses solely to the relative lengths of employ­
ment of the respective employees." Id.

While union bargaining representatives thus 
are free to alter seniority rights, they are duty- 
bound to represent not just the concerns of the 
white membership but also the interests of 
minority workers. Steele v. Louisville & Nash­
ville R.R., 323 U.S. 192, 203 (1944). That 
representation, of course, may include corrective 
action. "There is nothing in the law which 
preclude[s] [a] union from recognizing the 
injustice done to a substantial minority of its 
members and from moving to correct it." Bowe v. 
Colgate-Palmolive Co., 416 F.2d 711, 719 (7th 
Cir. 1969). Similarly, there is nothing in the 
law which prohibits a union from representing its 
minority walkers by negotiating an affirmative

_ 35-



remedies, this Court correctly assumed 
that the moral and legal legitimacy of a 
race conscious employment remedy rests 
upon the notion that it is designed to

action override altering seniority expectations.
E.g., United States v. A1legheny-Ludlum Indus­
tries, Inc., 517 F.2d 826 (5th Cir. 1975), cert. 
denied, 425 U.S. 944 (1976); Patterson v. Newspaper 
& Mail Deliverers1 Union of New York, 514 F .  2d 767 
(2d Cir. 1975) , cert, denied, 427 U.S. 911 (1976) .

When a union represents the interests of 
its black workers by negotiating an affirmative 
action override, the seniority expectations of 
some white workers undoubtedly will be affected. 
But changed expectations do not give rise to a 
viable complaint by a white worker. As the Court 
of Appeals for the Second Circuit recognized in 
Patterson v. Newspaper S Mail Deliverers' Union 
of New York, supra, the white worker "may well 
have been the modest beneficiary, vis-a-vis the 
minority work force, of a policy that discouraged 
minority persons from [obtaining employment]."
514 F.2d at 767. "In any event, it must be 
recognized that rights of the kind [that the 
white] workers here assert 'are not indefeasibly 
vested rights but mere expectations derived from 
a bargaining agreement and subject to modifica­
tion . ' " Id_. (citation omitted).

In Franks v. Bowman Transportation Co,, 424 
U.S. 747 (1976), the Court applied the foregoing 
principles in the context of our national policy 
of eliminating the effects of past discrimination.

"This Court has long held that employee 
expectations arising from a seniority 
system agreement may not be modified by 
statutes furthering a strong public

- 36-



redress the lingering effects of unlawful 
racial discrimination. Teamsters v.
United States, 431 U.S. 324 (1977). The 
effect of racial discrimination which a 
remedial plan may legitimately seek to 
erase is not, however, confined solely to 
an estimate of the pecuniary loss suffered 
by the victims. Rather, it includes the 
identification and equitable allocation 
of unjust enrichment attributable to 
racial discrimination.

Given our fundamental assumption 
that people of all races are created

policy interest... The Court has also 
held that a collective bargaining 
agreement may go further, enhancing 
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... And 
the ability of the union and the employer 
voluntarily to modify the seniority 
system to the end of ameliorating the 
effects of past racial discrimination, 
a national policy objective of 'the 
highest priority,' is certainly no less 
than in other areas of public policy 
interests." 424 U.S. at 778-779 
(citations omitted).

-37-



equal, but for extraneous factors— chiefly 
race prejudice— the distribution of desir­
able jobs in an employment setting should, 
over time, approximate the racial composi­
tion of the surrounding community. Cf., 
Castaneda v. Partida, 430 U.S. 482 (1977). 
It is an unfortunate reality of American 
life that race prejudice has systematically 
hindered minorities from gaining access 
to desirable jobs in a wide variety of 
employment settings, especially in the 
skilled trades. The historical exclusion 
of minorities from access to an equitable 
share of desirable jobs has had a two-fold 
effect. First, it has consigned many to 
a life of privation and poverty. Second, 
and more importantly for the purposes of 
this case, it has often conferred an 
involuntary benefit upon even the most 
"innocent" of whites since, although the 
number of desirable jobs remains roughly 
constant, the elimination of minority 
workers as effective competitors results 
in a higher proportionate availability of 
desirable jobs for each white applicant. 
Thus, race prejudice on the job confers 
an often involuntary benefit upon even

-38-



those white workers who deplore racial
discrimination 13/

13. The unjust enrichment may be described as 
follows:
Let: a = total number of potential competitors

of all races for desirable jobs in a 
given employment setting 

b = available number of desirable jobs 
c = individual allocation of desirable jobs 

which would result from allocation 
solely on basis of individual merit 

x = members of racial minority removed from 
effective competition for desirable jobs 
by racial discrimination 

y = individual allocation of desirable jobs 
which results from competition in 
absence of excluded minority applicants

b—  = ca
b

y-c = z
z = unjust enrichment factor

The unjust enrichment impact of race prejudice is 
most graphically illustrated by the example of 
Major League baseball. Prior to Jackie Robinson's 
emergence, the fixed number of jobs on the 16 
Major League rosters were held solely by whites 
because blacks were excluded from competing for 
them. As we now recognize, numerous black 
athletes would, if given the opportunity, have 
displaced wilte players from the rosters. The 
fact that the white players— even those wholly 
innocent of racial prejudice— retained jobs solely 
because blacks were excluded from competing for 
them is a graphic form of unjust enrichment.

-39-



The advantageous employment position 
enjoyed by a white worker which is ignored 
by a race conscious employment remedy is 
often just such an involuntary benefit 
caused by someone else's racial discrimi­
nation. As such, it is a legitimate tar­
get for a remedy which seeks to reconstruct 
the work force, over time, as if no racial 
discrimination had slowed its racial 
distribution. Cf., Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976). 
Thus, in order to be justified, a race 
conscious employment remedy should either
(1) seek to shift loss caused by racial

14/discrimination to the guilty party— ; or
(2) seek to identify and equitably allo­
cate the involuntary benefits (unjust 
enrichment) attributable to racial 
discrimination. Since no allegations 
exist that respondents here have them­
selves engaged in racial discrimination, 
the remedial numerical measure at issue 
in this case depends for its legitimacy 
upon a showing that it is aimed at iden-

14. The grant of back pay in a Title VII case is 
the classic example of a loss shifting remedy.

-40-



tifying and remedying a form of unjust 
enrichment attributable to reasonably 
apprehended racial discrimination.

At least three approaches exist to 
the problem. First, respondents* polar 
position argues that an employer and a 
union, confronted with allegations that 
their racial policies conferred an 
indirect benefit on white workers by 
increasing their access to craft jobs at 
the expense of minority workers, are 
powerless to evolve remedial plans aimed 
at redressing possible unjust enrichment 
--unless and until a court certifies that 
unlawful racial discrimination occurred 
at the plant in question.

The contrasting polar approach 
argues that Kaiser and the Steelworkers 
were free to recognize that racial dis­
crimination practiced by third parties 
throughout society--.including state and 
local governmental units in Louisiana-- 
conferred an indirect benefit upon white 
workers seeking access to craft jobs 
justifying a reasonable remedial attempt 
to identify and reallocate the unjust 
enrichment.

-41-



Finally, an intermediate position 
urged by Amici argues that where an 
employer and a union reasonably apprehend 
that they may have engaged in unlawful 
racial practices, they may establish good 
faith voluntary plans to remedy the 
effects of such reasonably apprehended 
racial discrimination without waiting for 
governmental permission or exposing them­
selves to retrospective liability. C_f., 
United Jewish Org. of Williamsburgh, Inc. 
v. Carey, 430 U.S. 144 (1977) (race con­
scious reapportionment valid because 
intended to redress effect of reasonably 
apprehended violation of §5 of Voting 
Rights Act).

2. Private Parties May Adopt 
Remedial Plans Aimed At 
Redressing The Effects Of 
Reasonably Apprehended Racial 
Discrimination In Employment 
Without Awaiting Governmental 
Permission Or Exposing Them­
selves To Retrospective 
Liability-
a. Law And Logic Encourage

Adoption Of Remedial Plans
So long as private parties are con­

fronted with a reasonable basis for
-42-



fearing that they may have engaged in 
unlawful racial discrimination in employ­
ment , they should be encouraged to adopt 
voluntary remedial plans designed to
remedy the effects of reasonably appre-

. . . 15/hended racial discrimination.—  
Respondents appear to argue that a stan­
dard of reasonable belief of past dis­
crimination as a justification for a 
private remedial plan is insufficiently 
high; they argue that only a judicial 
certification of the occurrence of 
unlawful past racial discrimination 
renders its existence sufficiently 
certain to justify a race conscious 
remedy. Thus, they argue, private 
parties wishing to evolve a remedy for 
the effects of past discrimination in 
which they reasonably fear they may have 
engaged must first be found guilty of 
unlawful discrimination in a judicial 
forum.

Any requirement for a judicial

15. The preference for voluntary compliance 
contained in Title VII and Executive Order 11246 
is discussed at pp. 49-55, infra.

-43-



finding of guilt in order to validate a 
private plan would all but preclude pri­
vate persons beset with a reasonable fear 
of having violated the law from embarking 
upon a course of voluntary remedial acti­
vity, since the judicial finding of guilt 
would collaterally estop the party from 
defending subsequent actions designed to 
impose financial liability for the past 
discrimination. Parklane Hosiery Company, 
Inc, v. Shore, 47 U.S.L.W. 4079 (Jan. 9, 
1979) (U.S. No. 77-1305). Respondents'
refusal to permit private persons to 
remedy the effects of reasonably appre­
hended racial discrimination without 
exposing themselves to massive liability 
runs counter to settled jurisprudential 
norms. In a wide variety of settings, 
when persons fear that they may have 
violated the law, our system encourages 
voluntary remedial action in a procedural 
context which does not expose the party 
to retrospective liability. Thus, cor­
porations accused of anti-trust viola­
tions are routinely encouraged to adopt 
remedial measures without admitting guilt 
or exposing themselves to retrospective

-44-



liability. E.g,, Burbank v. General 
Electric Co.. 329 F.2d 825, 834-835 (9th 
Cir. 1964); Triangle Industries, Inc, v. 
Kennicott Copper Corp., 402 F.Supp. 210 
(S.D.N.Y. 1975). Persons accused of 
violating the nation's securities laws 
are encouraged to engage in private 
remedial action without exposing them­
selves to massive liability. E.g., 
Allegheny Corp . v. Kirby , 333 F.2d 327 (2d 
Cir. 1964), aff1d by an equally divided 
court en banc, 340 F . 2d 311 (2d Cir. 1965) , 
cert, dismissed, 384 U.S. 28 (1966). 
Similarly, persons accused of patent 
infringement,— ^ tortious conduct,— ^ and 
admiralty law violations— ■ are routinely 
encouraged to engage in private remedial 
action without requiring an admission of 
culpability. It is, Amici submit, fully

16. E.g., Kaspar Wireworks, Inc, v. Leico Engi­
neering s Mach. Inc. , 575 F.2d 530 (5th Cir. 1978); 
Sampson v. Radio Corp. of America, 434 F.2d 315
(2d Cir. 1970).
17. E.g., Bratt v. Western Airlines, 169 F.2d
214 (9th Cir. 1948), cert, denied, 335 U.S. 886 
(19 ) .
18. Sun Oil Co. v. Govoster, 474 F.2d 1048 (2d 
Cir. 1973); Seaboard Shipping Corp. v. Jocharanne 
Tugboat Corp,, 461 F.2d 500 (2d Cir. 1972).

-45-



as important to encourage corporations to 
embark on a policy of remedying reasonably 
apprehended racial discrimination in 
employment as it is to encourage compliance 
with the nation's anti-trust, securities, 
patent, tort and admiralty laws. Just as 
it would be folly to require a judicial 
finding of guilt prior to permitting pri­
vate remedial actions in an anti-trust 
or securities context, so is it inconsis­
tent with our national commitment to the 
eradication of racial discrimination to 
lock persons onto the consequences of 
past discriminatory activity because the 
price of adopting a voluntary remedial 
plan is exposure to massive liability.
See, United Jewish Org. of Williamsburgh 
v. Carey, 430 U.S. 144 (1977) (good faith 
intent to avoid violating §5 of the Voting 
Rights Act justifies race conscious reap­
portionment) .

b. On The Facts Here, There 
Are No Risks In The Pri­
vate Adoption Of Remedial 
Plans

Respondents argue that permitting 
private parties to establish remedial

-46-



plans to remedy "reasonably apprehended" 
racial discrimination creates an unaccept­
ably high risk of unfair treatment of 
white workers. However, in the context 
of the present case, the risk of a bad 
faith private plan is non-existent.
First, the private plan at issue in this 
case was not promulgated unilaterally, 
but was the result of an arms' length 
negotiation between entities of equal 
bargaining capacity. Second, one of the 
parties to the negotiation— the Steel­
workers union— is charged with the duty 
of fair representation of all workers at 
the Gramercy plant— white and minority.
E. g .r Steele v. Louisville & Nashville 
R-R-i 323 U.S. 192 (1944); Ford Motor 
Co. v. Hoffman, 345 U.S. 330 (1953); 
Humphrey v. Moore, 375 U.S. 335 (1964). 
Third, a reasonable basis existed for 
fearing that unlawful racial discrimin 
nation may have taken place at both the 
Gramercy and Chalmette plants. Parson 
v- Kaiser Aluminum & Chemical Corp., 575
F. 2d 1374 (5th Cir. 1978). Where, as 
here, such safeguards are present, no 
basis exists for refusing to encourage

-47-



voluntary compliance with the law.
Where reasonable grounds exist to fear 
that past racial discrimination has in­
fected the hiring process and where the 
remedial plan is embodied in a bona fide 
collective bargaining agreement, suffi­
cient safeguards exist to encourage the 
private adoption of remedial plans without 
requiring a formal adjudication of guilt

3. Voluntary Adoption Of Race 
Conscious Measures Is 
Consistent With And 
Specifically Encouraged By 
Executive Order 11246 And 
Title VII

While voluntary compliance is 
necessary in all areas of law, voluntary 
compliance with the objectives of employ 
ment discrimination law has been 
especially stressed as necessary "'to 
eliminate, so far as possible, the last 
vestiges of an unfortunate and ignomini­
ous page in this country's history.'" 
Albemarle Paper Co. v. Moody, 422 U.S. 
405, 417-418 (1975) (citation omitted). 
Without voluntary compliance, we as a 
nation will be unable even to approach

-48-



our objective "of ameliorating the 
effects of past racial discrimination, a 
national policy objective of the 'highest 
priority.'" Franks v. Bowman Transpor­
tation Co., 424 U.S. 747, 779 (1976).

a - Executive Order 11246 
And Title VII Encourage 
Voluntary Compliance

The emphasis on voluntary compliance 
with Title VII and Executive Order 11246 
is subsumed within the structure of the 
statute and the Order. But carrot and 
stick incentives for compliance also are 
provided. Under Title VII, the "'spur 
or catalyst'" for voluntary compliance 
is "the reasonably certain prospect" of 
a class-wide back pay award against an 
employer or union under §706 (g), 42 U.S.
C. §2000e-5(g). Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 417-418 (1975) 
(citation omitted). Under the Executive 
Order, an even greater incentive to an 
employer is the likelihood that its 
lucrative government contracts may be 
"cancelled, terminated or suspended," 
and that it will be debarred from

- 49-



receiving future government contracts. 
See Executive Order 11246, §§ 209 (a) (5) & 
(6) .

Even without these specific incen- 
tives/sanctions, voluntary compliance 
nonetheless is an explicit and implicit 
objective--an objective most readily 
apparent from the statutory structure of 
Title VII. Section 706(b), 42 U.S.C. 
§2000e-5(b), requires the EEOC to 
"endeavor to eliminate" discrimination 
through "informal methods of conference, 
conciliation and persuasion." This 
statutory emphasis on informal methods 
has caused this Court to state on 
several occasions that "cooperation and 
voluntary compliance were selected as 
the preferred means for achieving 
[compliance with Title VII ]." (emphasis 
added); quoted with approval in Occiden­
tal Life Insurance Co. v. EEOC, 432 U.S. 
355, 367-368 (1977).

The courts of appeals (especially 
the U.S. Court of Appeals for the Fifth 
Circuit which has a considerable docket 
of employment discrimination cases) have

- 50-



been no less aware of this emphasis on 
voluntary compliance: Title VII encour­
ages "adjustment and settlement... short 
of litigation," Guerra v. Manchester 
Terminal Corn.. 498 F.2d 641, 650 (5th 
Cir. 1974) (per Judge Goldberg); Title 
VII places "great emphasis upon private 
settlement and the elimination of unfair 
practices without litigation on the 
ground that voluntary compliance is 
preferable to court action," Hutchings 
v. United States Industries, Inc., 428 
F .2d 303, 309 (5th Cir. 1970) (per Judge 
Ainsworth); "the central theme of Title 
VII is 'private settlement' as an 
effective end to employment discrimina- 
tion," Culpepper v. Reynolds Metals Co.. 
421 F .2d 888, 891 (5th Cir. 1970) (per 
Judge Tuttle); Title VII has as a 
"primary goal the securing of voluntary 
compliance with the law," Bowe v. 
Colgate-Palmolive Co.. 416 F.2d 711, 719 
(7th Cir. 1969) (per Judge Kerner); 
"voluntary compliance is preferable to 
court action," Dent v. St, Louis-San 
Francisco Rv. Co.. 406 F .2d 399, 402

-51-



(5th Cir. 1969) (per Judge Coleman); it 
should be "clear that there is great 
emphasis in Title VII on private settle­
ment and the elimination of unfair 
practices without litigation," Oatis v. 
Crown Zellerbach Corp., 398 F.2d 496,
498 (5th Cir. 1968) (per Judge Bell).

Aside from being an important legal 
objective, voluntary compliance has an 
important practical side: it reduces the 
need for expanding federal agency 
enforcement machinery and it of course 
reduces the expenditure of enormous 
amounts of agency and judicial time.
This is especially true where voluntary 
compliance incorporating broadly-based 
race conscious numerical measures is 
undertaken by a large employer, much 
less by an entire industry as was the 
case in the Steel Industry Consent 
Decree, BNA FEP 431:125-152 (1974), 
reviewed and approved in United States 
v • Alleqheny-Ludlum Industries, Inc.,
517 F .2d 826 (5th Cir. 1975), cert, 
denied, 425 U.S. 944 (1976). There, 
the court discussed in some detail the

- 52-



practical side of why Title VII "places 
a premium on the achievement of voluntary 
compliance" through the adoption of race 
conscious numerical measures. 517 F.2d 
at 846. One obvious practical reason 
for the emphasis on voluntary compliance, 
the court noted, is that,

"the EEOC's limited resources 
permit it to undertake serious 
conciliation or lawsuits in 
only a small fraction of the 
cases on its docket." 517 F.2d 
at 848.

Without considerable deference for 
voluntary compliance, our nation's

"losses which must be considered 
include the nation's investment 
in the resources consumed by 
the federal agencies ... as well 
as the chance justly to finalize 
a matter that otherwise would 
burden agencies and courts... 
for years to come." 517 F.2d 
at 851.

The burdens on the agencies and on the 
courts, without deference to voluntary 
compliance, indeed would be considerable. 
In fact, without the voluntary compliance 
achieved in the Steel Industry Consent

- 53-



Decree (involving nine major employers, 
one union, and 250 plants), the court 
estimated that full litigation of the 
matter would have required "ten years to 
try just the liability issues" followed 
by trial of the remedial issues involving 
"over twenty-eight years of trial time." 
517 F.2d at 851 n.28 (emphasis in ori­
ginal) .

Ultimately, voluntary compliance 
is the preferred method of enforcement, 
especially where the voluntary compli­
ance includes numerical measures 
providing minority entry into an 
employer's work force, for the simple 
reason that it furthers the objectives 
of Title VII and of Executive Order 
11246. As the court stated in Patterson 
v • Newspaper & Mail Deliverers' Union of 
New York, 514 F.2d 767 (2d Cir. 1975), 
cert, denied. 427 U.S. 911 (1976) (up­
holding a voluntary compliance plan with 
numerical goals and timetables):

"the clear policy in favor of 
encouraging settlements must... 
be taken into account particu­
larly in an area where voluntary

- 54-



compliance by the parties over 
an extended period will contri­
bute significantly toward 
ultimate achievement of Title 
VII's statutory goals." 514 
F .2d at 771.

b. Compliance With Executive 
Order 11246 And Title VII 
Includes Adoption Of Race 
Conscious Measures

Voluntary compliance directed toward 
"ameliorating the effects of past racial 
discrimination, a national policy objec­
tive of the 'highest p r i o r i t y , Franks 
v. Bowman Transportation Co,, 424 U.S. 
747, 779 (1976) (citations omitted), 
includes and often requires the adoption 
of race conscious numerical measures. 
These numerical measures, adopted under 
Title VII and Executive Order 11246, 
have been widely pursued and judicially 
approved: (1) when premised upon findings
of identifiable past discrimination; (2) 
when premised not upon identified dis­
crimination but rather only upon under­
utilization of minority workers; and (3) 
when adopted in good faith with express 
disclaimers of any past discrimination.

-55-



These prospective race conscious measures 
which provide work place entry to 
minority workers, are fully consistent 
with the remedial objectives of Title 
VII and Executive Order 11246.

By 1964, Congress was well aware of 
the vastly unequal economic and social 
conditions imposed upon minorities in 
the work place by our society's pervasive 
racism. By enacting Title VII in 1964, 
and by extending it in 1972, Congress 
broadly sanctioned remedial efforts to 
change those unequal conditions. While 
it is true that Congress in 1964 did not 
require employers and unions to adopt 
affirmative race conscious numerical 
measures, neither did Congress prohibit 
adoption of such measures^; eight years

17. Section 703(j), 42 U.S.C. §2000e-2(j), at 
various times has been asserted as a prohibition 
against the use of race conscious numerical 
measures. But §703 (j) on its face is not a 
prohibition but only a disclaimer that nothing 
in Title VII "shall require...preferential treat­
ment. . .on account of an imbalance." 42 U.S.C. 
§2000e-2(j) (emphasis added). The unanimous 
interpretation of §703 (j) by the courts of appeals

-56-



later, Congress did give its specific 
approval to the use of such numerical 
measures.-^ Being sidetracked here by 
the use of numerical measures, however, 
misses the point. For, what is signifi­
cant is Title VII's objective of remedy­
ing societal discrimination.

Title VII, as this Court has 
repeatedly made clear, prohibits not

has been that the section has no effect upon 
race conscious numerical measures, whether 
ordered to remedy past discrimination, e.g., 
United States v. International Union of Elevator 
Constructors, 538 F.2d 1012 (3d Cir. 1976) (and 
cases cited -herein), or whether adopted simply 
to remedy underutilization of minority workers, 
e.g., Contractors Ass'n of Eastern Pennsylvania 
v. Secretary of Labor, 442 F.2d 159 (3d Cir.), 
cert, denied, 404 U.S. 854 (1971) .

Nonetheless, §703(j) continues to be 
raised at various times. In fact, respondent 
Weber relied on §703(j) in the court of appeals 
below. His argument was rejected out of hand 
by the panel majority for the obvious reason 
that "the issue" was "not whether preferential 
treatment is required but whether it is forbid­
den . " 563 F.2d at 219.
18. Regardless of the meaning of §703 (j) in 
1964, Congress in 1971-1972 expressly adopted 
the use of race conscious numerical measures 
under Executive Order 11246 as not inconsistent 
with Title VII. This 1971-1972 legislative 
history of T'tle VII is set forth in some detail 
in Point B, infra.

-57-



only an employer1s own intentionally 
discriminatory practices but also employ­
ment practices which merely inhibit 
minority participation because of 
societal discrimination. For example, 
when an employer uses a written test, a 
diploma requirement, or a prior experi­
ence requirement which has a discrimina­
tory impact, the employer is merely 
perpetuating the inequalities created by 
centuries of discrimination. It is not 
the employer which necessarily denied 
the minority applicant test-taking 
ability, a diploma, or prior experience. 
Nonetheless, Title VII prohibits the 
employer's use of such criteria unless 
the employer can show that they are 
justified by a business necessity.
Griggs v. Duke Power Co., 401 U.S. 424 
(1971). This remedial burden is required 
regardless of the employer's culpability 
in order to remedy the continuing effects 
of pervasive societal discrimination. Id. 
And, when the business necessity burden 
cannot be met, as it most often cannot, 
the employer may continue its use of the

-58-



criteria only if it remedially adjusts 
the requirements so as to eliminate the 
discriminatory effect of the criteria. 
Albemarle Paper Co. v. Moody. 422 U.S. 
405, 435 (1975).^/ This remedial

19. The Court's approval of this remedy in 
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), 
was emphasized by Mr. Justice Brennan in Regents 
of the University of California v. Bakke, 57 L. 
Ed.2d 750 (1978):

"In Albemarle, we approved 
'differential validation' of employ­
ment tests. See 422 U.S., at 435.
That procedure requires that an 
employer must ensure that a test 
score of, for example, 50 for a 
minority job applicant means the 
same thing as a score of 50 for a 
nonminority applicant. By implica­
tion, were it determined that a test 
score of 50 for a minority corres­
ponded in 'potential for employment' 
to a 60 for whites, the test could 
not be used consistent with Title 
VII unless the employer hired 
minorities with scores of 50 even 
though he might not hire nonminor.ity 
applicants with scores above 50 but 
below 60. Thus, it is clear that 
employers, to ensure equal opportu­
nity, may have to adopt race-conscious 
hiring practices." 57 L.Ed.2d at 817 
n.37 (opinion of Brennan, J.).

See also, Uniform Guidelines on Employee Selection 
Procedures, 29 C.F.R. §1607.14B(8)(d).

-59-



action, again, is required not because
of the employer's culpability— although
there is a causal connection— but as a
remedy for the continuing effects of our

0(1 /pervasive past discrimination.— 7
The intent and effect of Executive 

Order 11246 in reaching and remedying 
societal discrimination is equally if 
not more apparent— for §202 of the Order

20. As Justice Powell pointed out in Regents of 
the University of California v. Bakke, 57 L.Ed. 
2d 750 (1978), the congressional findings sup­
porting the enactment of Title VII distinguish 
the remedial measure here from that at issue in 
Bakke:

"It !he presumption in Griggs—  
that disparate impact without any 
showing of business justification 
established the existence of dis­
crimination in violation of the 
statute— was based on legislative 
determinations, wholly absent here, 
that past discrimination had 
handicapped various minority groups 
to such an extent that disparate 
impact could be traced to identi­
fiable instances of past discrimi­
nation--- See, e.g., H.R. Rep.
No. 914, 88th Cong., 2d Sess., at 
26 (1963) ('Testimony concerning 
the fact of discrimination in 
employment is overwhelming')."
57 L.Ed.2d at 783 n.44 (opinion of 
Powell, J.).

-60-



both prohibits "discrimination" and 
requires "affirmative action," both of 
which have been interpreted by the 
Secretary of Labor to require race 
conscious goals and timetables where 
there is a deficiency in the utilization 
of minority workers. 41 C.F.R. Part 
60-2. The premise for these requirements 
is the same as the source for the Execu­
tive Order: the procurement authority 
given to the President by Congress in 
Titles 40 and 41 of the United States 
Code. Under this broad grant of author­
ity, the President properly concluded in 
issuing Executive Order 11246 that it 
was in the best interests of the United 
States to insure that its suppliers of 
goods and services did not indirectly or 
directly increase costs by perpetuating 
our exclusion of available minority 
workers from the active labor pool. See 
Contractors Ass'n of Eastern Pennsylvania 
v. Secretary of Labor, 442 F.2d 159, 170- 
171 (3d Cir.), cert. denied, 404 U.S. 854 
(1971); see also, United States v. New 
Orleans Public Service, Inc., 553 F.2d

-61-



459, 455-468 (5th Cir. 1977); Rossetti 
Contracting Company, Inc, v. Brennan,
508 F . 2d 1039, 1045 n.18 (7th Cir. 1975); 
Northeast Construction Company v. Romney, 
485 F .2d 752, 760-761 (D.C. Cir. 1973).

Because of the Title VII and Execu­
tive Order objectives of remedying our 
nation's pervasive discrimination against 
minorities, the remedial measures of 
necessity have included a wide variety 
of race conscious measures designed to 
bring the victims of our discrimination 
into the work place: e,q., monitoring 
and adjusting scores on purportedly 
neutral criteria to insure against 
racially discriminatory impact; engaging 
in minority-oriented recruitment; estab­
lishing training programs for minority 
trainees; and implementing numerical 
measures to insure minority participation 
in an employer's work force.

Not all of these race conscious 
measures are always necessary for 
voluntary compliance with Title VII and 
Executive Order 11246. Nonetheless, 
each may be appropriate depending, of

- 62-



course, upon the employer 1s past prac­
tices and deficiency in minority utili­
zation. See, 29 C.F.R. Part 1608 (EEOC 
Guidelines on Affirmative Action); 41 
C.F.R. Part 60-2 (Revised Order No. 4: 
Affirmative Action Programs for Govern­
ment Contractors).

Although they are the most contro­
versial of the remedies, race conscious 
numerical measures providing work place 
entry to victims of our nation's discrim­
ination have been widely approved as 
consistent with the remedial objectives 
of Title VII and Executive Order 11246.
As we noted earlier:

(1) Race conscious numerical 
measures frequently have been premised 
upon findings of identifiable past 
discrimination. In Regents of the Uni­
versity of California v. Bakke, 57 L.Ed. 
2d 750, 778 (1978) (opinion of Powell, 
J.), two of the cases cited with approval 
were Bridgeport Guardians v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 
(2d Cir. 1973), and Carter v. Gallagher, 
452 F.2d 327 (8th Cir.) (en banc), cert.

-63



denied, 406 U.S. 950 (1972) . In Bridge­
port, the court-ordered numerical measure 
established a minority hiring goal, 
required future minority applicants to 
be placed in a separate minority pool, 
required 50% of the next ten vacancies 
to be filled from the minority pool, 
required 75% of the next twenty vacancies 
to be filled from the minority pool, and 
required 50% of the vacancies thereafter 
to be filled from the minority pool until 
the goal was reached. In Carter, the 
court-ordered measure also established a 
minority hiring goal and required 33% of 
the future hires to be minority until 
the goal was attained. In both situa­
tions, the numerical measures provided 
work place entry to minority workers who 
were victims of societal discrimination 
but who had not necessarily been discrim­
inated against personally by the employ­
ers. See also, Morrow v. Dillard, 480 
F . 2d 1284 (5th Cir. 1978), a post-Bakke^^'

21. In Morrow v. Dillard, 480 F.2d 1284 (5th Cir. 
1978), the Fifth Circuit correctly viewed Bakke 
as not affecting court-ordered remedies:

-64-



decision approving a race conscious 
numerical measure similar to those in 
Bridgeport and Carter

"The Bakke decision should not be 
viewed as a contrary decision of law 
applicable to the issue of the con­
stitutionality of affirmative hiring 
relief, but as a decision reaffirming 
the equitable power of federal courts 
to remedy the effects of unconstitu­
tional acts through race-conscious 
means." 480 F.2d at 1284.

22. The courts of appeals in nine circuits have 
ordered or approved similar numerical measures 
providing work place entry to minority workers 
who were victims not of the employers' direct 
discrimination but of societal discrimination,

FIRST CIRCUIT: Associated General Contractors
of Mass., Inc, v. Altschuler, 490 F.2d 9 (1st 
Cir. 1973), cert, denied, 416 U.S. 957 (1974); 
Boston Chapter, NAACP, Inc, v. Beecher, 504 
F.2d 1017 (1st Cir. 1974), cert, denied, 421 
U.S. 910 (1975);
SECOND CIRCUIT: Rios v. Enterprise Association
Steamfitters Local 638, 501 F.2d 622 (2d Cir. 
1974); 'Bridgeport Guardians, Inc, v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 (2d Cir. 
1973); United States v. Wood Lathers-Local 46, 
471 F .2d 408 (2d Cir.), cert, denied, 412 U.S. 
939 (1973);
THIRD CIRCUIT: Erie Human Relations Commission
v. Tullio, 493 F.2d 371 (3d Cir. 1974);

-65-



(2) Race conscious numerical 
measures frequently have been premised 
not upon identified discrimination but
Contractors Association v. Secretary of Labor, . 
442 F.2d 159 (3d Cir.), cert, denied, 404 U.S.
854 (1971);
FOURTH CIRCUIT: Sherill v. J.P. Stevens & Co.,
551 F.2d 308 (4th Cir. 1977);
FIFTH CIRCUIT: NAACP v. Allen, 493 F.2d 614
(5th Cir. 1974); Morrow v. Crisler, 491 F.2d 
1053 (5th Cir.) (en banc), cert, denied, 419 
U.S. 895 (1974); Local 53, Asbestos Workers v. 
Vogler, 407 F.2d 1047 (5th Cir. 1969);
SIXTH CIRCUIT: EEOC v. Detroit Edison Co,, 515
F.2d 301 (6th Cir. 1975), vac1d and rem1d on 
other grounds, 431 U.S. 951 (1977); United 
States v. Masonry Contractors Association, 497 
F.2d 871 (6th Cir. 1974); United States v. Local 
212, IBEW, 472 F.2d 634 (6th Cir. 1973); Sims v. 
Local 65, Sheet Metal Workers, 489 F.2d 1023 
(6th Cir. 1973); United States v. Local 38,
IBEW, 428 F .2d 144 (6th Cir.), cert, denied, 400 
U.S. 943 (1970);
SEVENTH CIRCUIT: United States v. Chicago, 549
F.2d 415 (7th Cir. 1977), cert, denied, 434 U.S. 
875 (1978); Crockett v. Green, 534 F.2d 715 (7th 
Cir. 1976); Southern Illinois Builders Associa­
tion v. Oqilvie, 471 F.2d 680 (7th Cir. 1972);
EIGHTH CIRCUIT: United States v. N.L. Industries,
Inc., 479 F .2d 354 (8th Cir. 1973); Carter v. 
Gallagher, 452 F.2d 327 (8th Cir.) (en banc), 
cert, denied, 406 U.S. 950 (1972);
NINTH CIRCUIT: United States v. Ironworkers
Local 86, 443 F.2d 544 (9th Cir.), cert, denied, 
404 U.S. 984 (1971) .

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rather only upon underutilization of 
minority workers. In Regents of the 
University of California v. Bakke, 57 
L.Ed.2d'750, 778 (1978) (opinion of 
Powell, J.), two of the cases cited with 
approval were Associated General 
Contractors of Massachusetts v, Altschu­
ler, 490 F .2d 9 (1st Cir. 1973), cert. 
denied, 416 U.S. 957 (1974); and 
Contractors Association of Eastern Pa. 
v. Secretary of Labor, 442 F.2d 159 (3d 
Cir.), cert, denied, 404 U.S. 854 (1971). 
In both situations, the numerical 
measures administratively imposed upon 
employers provided work place entry to 
minority victims of societal discrimina­
tion. To a certain extent, of course, 
there had been past racial discrimina­
tion by the building trades, but the 
numerical measures were premised only 
upon underutilization,-^-^ and the 
measures in any event were imposed not 
on the building trades but on the 
employers.

23. Although there has been past discrimination 
in the building trades, the legality of adminis­
tratively imposed numerical measures providing



(3) Race conscious numerical 
measures frequently have been adopted

craft jobs for minority workers has been premised 
not upon findings of past discrimination but 
rather upon determinations of minority underrep­
resentation. In Contractors Association of 
Eastern Pa. v. Secretary of Labor, 442 F.2d 159 
(3d Cir.), cert, denied, 404 U.S. 854 (1971), 
the court held that statistical evidence "re­
vealing 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 the issuance 
of the order without regard to a finding as to 
the cause of the situation.... A finding as to 
the historical reason for the exclusion of 
available tradesmen from the labor pool is not 
essential for federal contractual remedial 
action." 442 F.2d at 177. A similar decision 
was reached in Associated General Contractors of 
Massachusetts. Inc, v. Altschuler, 490 F.2d 9 
(1st Cir. 1973), cert, denied, 416 U.S. 957 
(1974), where the court upheld a numerical 
hiring measure which had been imposed under a 
state executive order designed not to remedy 
past discrimination but only to redress minority 
underrepresentation. 490 F.2d at 13, 14 & 19. 
Gratuitously, if not as an afterthought, the 
court of appeals observed "that past racial 
discrimination in Boston's construction trades 
is in large part responsible for the present 
racial imbalance." 490 F.2d at 21.

Similar decisions have upheld the 10% set 
aside for minority business enterprises in 
§103(f)(2) of the Public Works Employment Act 
of 1977, 42 U.S.C. §6705(f)(2), despite the fact

-6 8-



with express disclaimers of any past
discrimination. In these situations, as
in the previous category, the numerical
measures brought into the employers' work
forces minority workers who were victims
of societal discrimination but not of any
specifically identified discrimination.
In Teamsters v. United States, 431 U.S.
324, 330 n.4 (1977), this Court, while
defining the parameters of retroactive
relief under Title VII, gave tacit
approval to a prospective numerical
measure establishing a minority hiring
goal and a one-to-one, minority-to-white

24/implementation ratio.—  Similar pros­
pective numerical measures, with similar

that the 10% set aside was premised not on find­
ings of past discrimination but only upon statis­
tical evidence of minority enterprise underrep­
resentation. For example, in the first post- 
Bakke decision on the 10% set aside, the Court 
of Appeals for the Second Circuit upheld the 10% 
set aside as constitutional while observing that 
"the absence of such a finding of past discrim­
ination in the legislative history is not 
determinative." Fullilove v. Kreps, 584 F.2d 
600, 606 (2d Cir. 1978).
24. The Teamsters Court commented upon the 
appropriateness of agreeing to prospective 
compliance under Title VII:

-69-



goals and ratios, were voluntarily

"The federal courts have freely 
exercised their broad equitable dis­
cretion to devise prospective relief 
designed to assure that employers found 
to be in violation of §707(a) of Title 
VII eliminate their discriminatory 
practices and the effect therefrom.
See, e.g., cases cited in n.51, infra.
In this case prospective relief was 
incorporated in the parties' consent 
decree. See, supra, at 330-1, n.4."
431 U.S. at 361 n.47.

The voluntarily adopted consent decree referred 
to by the Court included a broad numerical 
measure providing work place entry to minority 
workers:

"The decree further provided 
that job vacancies at any company 
terminal would be filled first 1 [b]y 
those persons who may be found by the 
court, if any, to be individual or 
class discriminatees suffering the 
present effects of past discrimination 
because of race or national origin 
prohibited by Title VII of the Civil 
Rights Act of 1964.1 Any remaining 
vacancies could be filled by 'any 
other persons,' but the company obli­
gated itself to hire one Negro or 
Spanish-surnamed person for every 
white person hired at any terminal 
until the percentage of minority 
workers at that terminal equalled 
the percentage of minority group 
members in the population of the 
metropolitan area surrounding the 
terminal." 431 U.S. at 330-331 n.4.

- 70-



adopted and later upheld in EEOC v. 
American Tel. & Tel. Co.. 556 F.2d 167 
(3d Cir. 1977), cert, denied. 57 L.Ed.2d 
1161 (1978); United States v. Alleghenv- 
Ludlum Industries, Inc., 517 F.2d 826 
(5th Cir. 1975), cert. denied, 425 U.S. 
944 (1976)? Patterson v . Newspaper &
Mail Deliverers Union of New York. 514 
F .2d 767 (2d Cir. 1975), cert. denied, 
427 U.S. 911 (1976) '/

25. For additional prospective numerical 
measures contained in voluntary agreements, 
see, e.g.:

Howard v. Freedman, Civ. No. 74-234 (W.D. 
N.Y., May 12, 1975) (consent decree establishing 
a 25% minority hiring goal and a hiring ratio of 
two minority hires for every three white hires), 
collateral challenge by whites rejected, Prate 
v. Freedman, 430 F.Supp. 1373 (W.D.N.Y. 1977), 
aff'd without opinion, (2d Cir., Oct. 17, 1977), 
cert, denied, 98 S.Ct. 2274 (1978); see also, 
Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) 
(attorneys fees awarded to minority defendant- 
intervenors because the collateral challenge 
was vexatious and unreasonable).

Bolden v. Pennsylvania State Police, C.A. 
No. 73-2604 (E.D.Pa. June 21, 1974) (consent 
decree establishing a 9.2% minority hiring goal 
and a hiring ratio of one minority hire for 
every two white hires), preliminary injunction 
on collateral challenge by whites denied, Oburn 
v. Shapp, 393 F.Supp. 561 (E.D. Pa. 1975),

-71-



In each of the foregoing voluntary 
agreements, prospective numerical 
measures were deemed necessary for 
prospective Title VII compliance 
although past discrimination was 
expressly denied in each instance. 
Illustrative is the Steel Industry 
Consent Decree, which contained two 
express disclaimers of past discrimina­
tion— ^ and which received the judicial 
recognition in Alleqheny-Ludlum that, 
"[h]ere, of course, we have no judicial 
finding of unlawful employment discrimi-

aff'd, 521 F.2d 142 (3d Cir. 1975), collateral 
challenge dismissed, 70 F.R.D. 549 (E.D. Pa. 
1976), aff'd , 546 F.2d 418 (3d Cir. 1976), 
cert, denied, 430 U.S. 968 (1977).

United States v. Wood, Wire & Metal 
Lathers, Int'l Union, 471 F.2d 408 (2d Cir.), 
cert, denied, 412 U.S. 939 (1973) (consent 
decree pursuant to which the union was required 
initially to issue work permits to 100 minority 
workers, and thereafter for each of the next 
four years to issue at least 250 work permits 
on a one-to-one ratio alternatively to one 
minority worker and to one white worker).

26. See p. 23, supra.

-72-



nation." 517 F.2d at 881 (emphasis in 
original).

Title VII and Executive Order 11246 
place a premium on voluntary compliance 
with their explicit and implicit remedial 
objectives. As court after court has 
concluded, prospective race conscious 
numerical measures while not necessarily 
required for voluntary compliance cer­
tainly are a considerable portion of the 
voluntary compliance encouraged by and 
lawful under Title VII and the Executive 
Order.

-73



B • Voluntary Adoption of Race Conscious
Measures Under Executive Order 11246 
And Under Title VII Has Been Approved 
Repeatedly~By Congress
The significant objectives of Title 

VII and Executive Order 11246, of encour- 
aging voluntary adoption of race conscious 
numerical measures which provide work 
place entry to minority workers, form an 
integral part of Title VII and the Execu­
tive Order. As apparent as these objec­
tives are on the face of and from the 
uniform interpretation of Title VII and 
the Executive Order, equally significant 
is Congress' express ratification of the 
use of race conscious numerical measures 
under Title VII and the Executive Order. 
This ratification— which occurred not 
just once but on three separate occasions 
in 1969, in 1971-1972, and in 1978—  
conclusively establishes the legality of
voluntary race conscious numerical 27/ , „measures—  and further establishes the

27. Far less legislative history has in the past 
been relied on to interpret provisions of Title 
VII. For example, in Albemarle Paper Co. v. 
Moody, 422 U.S. 405 (1975), this Court agreed 
with the unanimity of courts of appeals' deci­
sions holding that back pay "may be awarded on a

-74 -



absence of any conflict between Title VII 
and the Executive Order.

1. In 1969, Congress Ratified The 
Use Of Race Conscious Measures 
Under Executive Order 11246

Shortly after the Philadelphia Plan, 
with its race conscious numerical goals 
and timetables, was imposed upon construc­
tion contractors in Philadelphia by the
Department of Labor under Executive Order 

28/11246,—  debate arose between the Executive 
Branch and Congress about the legality of

class basis under Title VII without exhaustion of 
administrative procedures by the unnamed class 
members." 422 U.S. at 414 n.8. In reaching this 
decision, the Court reviewed the 1972 legislative 
history of Title VII which revealed that the House 
bill had sought to limit back pay awards only to 
individuals who had filed charges, that the Senate 
bill contained no such limitation, and that the 
Senate version prevailed in the House-Senate confer­
ence and was enacted into law. Id. Based upon this 
legislative history, the Albemarle Court held that 
back pay could be awarded to unnamed members of the 
class. As Justice Stewart stated, writing for the 
Court: "The Congress plainly ratified this con­
struction of the Act in the course of enacting the 
Equal Employment Opportunity Act of 1972." Id.
28.For a discussion of the Philadelphia Plan, see 
Contractors Ass'n of Eastern Pennsylvania v. Secretary 
of Labor, 442 F.2d 159 (3d Cir. ) , cert, denied, 404 U.S. 
854 (1971). ; see also, Comment, The Philadelphia Plan: 
A Study in the Dynamics of Executive Power, 39U.Chi.L. 
Rev. 723 (1972) . -75-



the Plan. As a result of congressional 
actions flowing from that debate, 
Congress ratified the use of race 
conscious goals and timetables.

Administrative debate on this issue 
was initiated when the Comptroller 
General, objecting to the goals and 
timetables of the Philadelphia Plan, 
issued an opinion finding the Plan to be 
in violation of Title VII and refusing 
to approve expenditures on construction 
projects covered by it. 4 9 Comp. Gen.
59 (1969). Immediately thereafter, the 
Attorney General controverted the view 
held by the Comptroller General, issued 
an opinion declaring the Plan to be 
legal, and advised the Secretary of 
Labor to disregard the Comptroller 
General's opinion. 42 Op. Att'y Gen. No. 
37 (Sept. 27, 1969).

The Comptroller General responded 
by urging the Senate Subcommittee on 
Deficiencies and Supplementals to include 
in a pending supplemental appropriations 
bill a limitation on the use of federal 
funds for contractors required to meet 
any specific goals established for

-76-



minority workers. 115 Cong. Rec. 40018- 
40019 (1969). At the request of Senator 
Fannin, the Subcommittee followed the 
Comptroller General's suggestion and 
attached the following rider:

"No part of the funds appropri­
ated or otherwise made available 
by this or any other act shall 
be available to finance, either 
directly or through any federal 
aid or grant, any contract or 
agreement which the Comptroller 
General of the United States 
holds to be in contravention of 
any federal statute." 115 Cong.
Rec. 40013 (1969).
During this same period, Senator 

Ervin, as Chairman of the Senate Subcom­
mittee on Separation of Powers, held 
hearings to determine if the revised 
Philadelphia Plan violated the separation 
of powers by contravening the intent of 
Congress in the Civil Rights Act of 1964. 
The testimony before Ervin's subcommittee, 
principally that of Comptroller General 
Staats, later was introduced into the 
Congressional Record during the Senate 
debate on the Fannin rider. 115 Cong.
Rec. 16799-16802 (1969). See also, 115

-77



Cong. Rec. 16729-16733 (1969).
Senate debate on the Fannin rider 

revolved around two issues. Several 
senators were of the view that the 
primary issue was maintaining the 
independence of the Comptroller General's 
office free from Executive Branch inter­
ference. See, e.g., Remarks of Senator 
Allott at 115 Cong. Rec. 39963 (1969). 
Other senators believed that the only 
issue was the legality of race conscious 
goals and timetables. To Senator Hruska, 
for example, the intent of Congress in 
debating the Fannin rider was unmistak­
able:

"The fact is that not only 
the Philadelphia Plan is involved. 
A similar series of contracts is 
being negotiated and very likely 
will soon be in effect in Boston 
and some seven, eight cities. Mr. 
President, that presents quite a 
problem. Being aware of that 
problem and having the question 
before us as to where this author­
ity and those contracts are 
entered into, then the question 
will be raised when the time 
comes to debate the legality of 
these plans. Did not the Congress 
acquiesce in a practice along that 
line...the Congress knew what was

-78-



going on and yet raised no 
objection. In view of these 
considerations, I think that 
this bill is a legitimate 
vehicle for saying this is the 
time and place to confront the 
issue." 115 Cong. Rec. 39961 
(1969).
Any ambiguity as to whether the 

Senate was addressing the dispute between 
the Comptroller General and the Attorney 
General was removed when the Senate 
rejected amendments to the Fannin rider 
that would have limited its effect only 
to resolving that dispute. 115 Cong.
Rec. 39973 (1969). With the issue then 
focused solely on the legality of race 
conscious goals and timetables, the 
Senate passed the Fannin rider 74-0 with 
26 abstentions.

When the bill, with the Fannin rider 
attached, reached the House, most of the 
debate focused on the use of race con- 
cious goals and timetables. Among the 
opponents of the Fannin rider in the 
House was Representative Gerald Ford.
In his remarks, he vigorously supported 
the legality of the goals and timetables 
as authorized by earlier civil rights 
legislation:

-79-



"In the early 1950's and in the 
1960's the Congress passed far- 
reaching civil rights legislation 
involving social rights... protect­
ing the rights of minorities— open 
housing and other rather sweeping 
legislation to protect people 
against discrimination because of 
race, creed, and color.

"Now let me say this: All of 
those social rights are important, 
but if you do not have a job, it 
does not do you much good in some 
of these cases. If you do not have 
a job to earn the money to buy a 
house, then open housing legisla­
tion does not do you one bit of 
good. If you do not have a job to 
earn a living for your family, it 
does not do you any good in many 
of these other areas, many of the 
other areas where Congress has 
given protection against discrim­
ination.

"This rider prevents minority 
groups from getting a job in a 
meaningful way. This rider pre­
cludes the opportunity for job 
equality under Federal contracts. 
Make no mistake about that....
An 'aye' vote is going to mean you 
vote to perpetuate job discrimina­
tion in Federal contracts. A 'nay' 
vote means that individuals will 
have the protection of the Federal 
Government in getting jobs. Minor­
ity groups will have an opportunity 
to earn a living so that they can 
enjoy the fruits of social legisla­
tion which the Congress has passed

-80



in the last two decades." 115
Cong. Rec. 40907 (1969).

After vigorous debate, the House deleted 
the rider by a vote of 208 to 156. 115
Cong. Rec. 40921 (1969). Upon reconsi­
deration in the Senate, the Senate by a 
vote of 39-29 also voted to delete the 
Fannin rider. 115 Cong. Rec. 40749 
(1969) .

Although both the Senate and House 
debates on the Fannin rider were somewhat 
confused because of the separation of 
powers issue, there is no doubt that 
Congress was well aware of the race 
conscious goals and timetables in the 
Philadelphia Plan. As Senator Hruska 
emphasized: "Congress knew what was
going on and yet raised no objection."
115 Cong. Rec. 39961 (1969).

2. In 1971-1972, Congress Again 
Ratified The Use Of Race 
Conscious Measures Under 
Executive Order 11246 And 
Incorporated The Order Into 
Title VII~

The next debates in Congress on the 
appropriateness of race conscious numeri­

-81-



cal measures occurred in 1971-1972 during 
Congress' consideration of the Equal 
Employment Opportunity Act of 1972, the 
bill which extended and considerably 
strengthened Title VII. As this Court 
pointed out in Occidental Life Insurance 
Co. v. EEOC, 432 U.S. 355 (1977), the 
"dominant Title VII battle in the 92nd 
Congress was over what kind of additional 
enforcement power should be granted to 
the EEOC." 432 U.S. at 361. Since part 
of that battle concerned the potential 
transfer of Executive Order enforcement 
powers to the EEOC, there was consider­
able debate on the appropriateness of 
race conscious numerical measures. As a 
result of Congress' focus on this issue, 
Congress reaffirmed the legality of race 
conscious numerical measures not only 
under Executive Order 11246 but also 
under Title VII.

Debate in the House on H.R. 1746 
centered upon an amendment offered by 
Representative Dent which would have 
prohibited the EEOC, with its proposed 
Executive Order enforcement powers,
"from imposing or requiring a quota or

-82-



preferential treatment with respect to 
numbers of employees of any race, color, 
religion, sex or national origin." 117 
Cong. Rec. 31784, 31981, 31984 (1971).

In a colloquy with Representative 
Pucinski, Representative Dent explained 
the purposes of his amendment:

Mr. PUCINSKI. Mr. Chairman, I take 
this time to ask the chairman of the 
subcommittee a question for the 
purpose of establishing some legis­
lative history here.

He will offer an amendment 
which will provide that the Commis­
sion shall be prohibited from 
requiring a quota for preferential 
treatment with respect to the 
numbers of employees or percentages 
of employees of any class, color, 
religion, sex, or national origin.

I am puzzled and troubled with 
the word "quota," because in the 
Philadelphia Plan the administration 
had very stubbornly insisted, and 
there was extensive debate on the 
floor of the House here, that they 
were not using quotas in Philadel­
phia but they were using "goals." 
What I want to know is whether or 
not the use of the word "quota" here 
in this amendment applies to "goals" 
or any other phraseology which in 
effect would require an employer to 
employ a certain amount of people 
of various racial and ethnic cate­
gories mentioned here.

-83



Mr. DENT. The gentleman asked 
me the question yesterday, and I 
looked up the word "goals" and I 
cannot find where goals has any 
specific meaning that would lend it 
to any plan which would say a cer­
tain number or quota. The word 
"quota" is a very plain word.

Mr. PUCINSKI. Does the prohi­
bition against "quota" in this 
amendment apply to "goals" or to any 
other method or scheme used by the 
administrators of this act?

Mr. DENT. I would say the word 
"quota" and the prohibition of 
quotas in the Commissions' adminis­
tration of the Federal contract 
compliance program means exactly 
what it is irtended to mean, that 
under any condition this Commission 
cannot establish a set number or 
quota of workers in any category 
that must be present.

Mr. PUCINSKI. If they plead 
as they did in the case of the 
Philadelphia plan that they were 
not establishing quotas but merely 
establishing goals, this would be 
interpreted as meaning they are in 
violation of this act.

Mr. DENT. That is right, if 
what they are establishing is a 
quota or preferential treatment.
117 Cong. Rec. 31975 (1971).

-84-



Following further debate, Representative 
Erlenborn introduced a substitute amend­
ment maintaining the status quo. Repre­
sentative Dent objected:

"The Erlenborn amendment leaves 
things exactly as they are.

"We say in my amendment that it 
was the intent of Cong~ess that 
there should be no quotas and that 
there should be no preferential 
treatment. In our amendments we 
specifically prohibit the use of 
quotas. We prohibit the establish­
ment of preferential treatment."
117 Cong. Rec. 32089 (1971).

The Erlenborn substitute was adopted and 
the Dent amendment rejected. 117 Cong. 
Rec. 32111-32112 (1971).

Debate and action in the Senate, 
even more conclusive than that in the 
House, centered upon two proposed amend­
ments offered by Senator Ervin to S.2515. 
Both amendments, which would have gutted 
the permissible use of numerical measures, 
were rejected. The first amendment 
offered by Senator Ervin stated:

"No department, agency, or 
officer of the United States shall 
require an employer to practice 
discrimination in reverse by

-85-



employing persons of a particular 
race, or a particular religion, or 
a particular national origin, or a 
particular sex in either fixed or 
variable numbers, proportions, 
percentages, quotas, goals, or 
ranges. If any department, agency, 
officer, or employee of the United 
States violates or attempts or 
threatens to violate the provisions 
of the preceding sentence, the 
employer or employee aggrieved by 
the violation, or attempted or 
threatened violation, may bring 
a civil action in the United 
States District Court in the 
District in which he resides or 
in which the violation occurred, 
or is attempted or threatened, or 
which the enterprise affected is 
located, and the District Court 
shall grant him such relief by 
way of temporary interlocutory 
or permanent injunctions as may 
be necessary to redress the con­
sequences of the violation, or to 
prevent the attempted or threatened 
violation." 118 Cong. Rec. 1662 
(1972).

On its face, Senator Ervin's first amend­
ment was intended to bar the use of 
numerical measures in providing work 
place entry to minority workers. In his 
words, "it forbids discrimination in 
reverse." 118 Cong. Rec. 1663 (1972).

-86-



Among the opponents of Senator 
Ervin's first amendment was Senator 
Javits, who spoke at length in favor of 
the Philadelphia plan and in favor of 
race conscious numerical measures in 
general. 118 Cong. Rec. 1664-1676 (1972). 
In the course of his remarks, he summar­
ized his opposition to the first Ervin 
amendment as follows:

"I believe that the amendment does 
two things, both of which should be 
equally rejected.
"First, it would undercut the whole 
concept of affirmative action as 
developed under Executive Order 
11246 and thus preclude Philadelphia- 
type plans.
"Second, the amendment, in addition 
to 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 discrimination in employment, 
and thereby further dismantle the 
efforts to correct these injustices." 
118 Cong. Rec. 1665 (1972).

In support of his position, Senator Javits 
spoke approvingly of the numerical measures 
upheld in Contractors Ass'n of Eastern Pa. 
v. Secretary of Labor, 442 F.2d 159 (3d

87-



Cir.), cert, denied, 404 U.S. 854 (1971),
and in United States v. Ironworkers Local 
86, 443 F.2d 544 (9th Cir.), cert, denied, 
404 U.S. 984 (1971), see 118 Cong. Rec. 
1664-1665 (1972), and inserted into the 
Congressional Record copies of the courts 
of appeals' decisions in those cases, see 
118 Cong. Rec. 1665-1675 (1972). Signifi­
cantly, Senator Javits also spoke 
approvingly of the use of race conscious 
numerical hiring measures adopted volun­
tarily by employers in consent decrees, 
see 118 Cong. Rec. 1675 (1972), and 
inserted into the Congressional Record a 
copy of a report describing and summariz­
ing two voluntarily adopted race conscious 
numerical measures, see 118 Cong. Rec. 
1675-1676 (1972).

On a vote of 22 yeas, 44 nays, 34 
not voting, the first Ervin amendment 
was defeated. 118 Cong. Rec. 1676 (1972).

Undaunted, Senator Ervin next intro­
duced a similar amendment. His second 
amendment proposed to amend §703 (j) of 
the Act, 42 U.S.C. §2000e-2(j), to pro­
hibit all federal agencies from requiring 
the adoption of numerical measures. 118

-88



Cong. Rec. 4917-4918 (1972). As Senator 
Ervin explained:

"In short, this [amendment] would 
make it unlawful for the EEOC, the 
Office of Federal Contract Compli­
ance, or any other federal agency 
or department in seeking to prevent 
so-called discrimination in employ­
ment from practicing discrimination 
in reverse such as is being prac­
ticed every day by the EEOC and 
also by the Office of Federal 
Contract Compliance." 118 Cong.
Rec. 4917 (1972).

Senator Javits objected to the amendment 
on the grounds that the Senate had already 
decided the issue: "we voted on that
here; we debated it and we decided it."
118 Cong. Rec. 4918 (1972). In response, 
Senator Ervin admitted that the "same 
question is involved." 118 Cong. Rec.
4918 (1972). Nonetheless, Senator Ervin 
added: "I sincerely hope that the Senate
will agree to the amendment." 118 Cong. 
Rec. 4917 (1972). It didn't. Senator 
Ervin's second amendment was defeated 
even more convincingly than his first 
amendment: 30 yeas, 60 nays, 10 not 
voting. 118 Cong. Rec. 4918 (1972).

-89-



3. In 1978, Congress Yet Again 
Ratified The Use Of Race 
Conscious Measures Under 
Executive Order 11246

In 1978, during and subsequent to 
this Court's deliberations in Bakke, 
Congress again debated the appropriate­
ness of race conscious numerical measures. 
Again, Congress ratified the use of such 
numerical measures.

The legislative vehicle in 1978 was 
an appropriations bill for HEW and for 
the Department of Labor. Under different 
amendments offered in the House and the 
Senate, those agencies would have been 
prohibited from using their appropria­
tions under the bill in a manner which 
would require any individual or entity to 
adopt certain race conscious numerical 
measures.

Although both amendments were 
adopted, both thereafter were deleted by 
the House-Senate Conference— with the 
result that Congress enacted the appro­
priations bill, Pub.L.No. 95-480 (Oct.
18, 1978), 92 Stat. 1567, with no 
restrictions on the continued use of 
race conscious numerical measures.

-90



The House amendment, introduced by 
Representatives Walker and Levitas, was 
directed at prohibiting HEW and the 
Department of Labor from requiring the 
adoption of most numerical measures:

"No part of any appropriation 
contained in this Act may be obli­
gated or expended in connection 
with the issuance, implementation, 
or enforcement of any rule, regula­
tion, standard, guideline, recom­
mendation, or order which includes 
any ratio, quota, or other numerical 
requirement related to race, creed, 
color, national origin, or sex, and 
which requires any individual or 
entity to take any action with 
respect to (1) the hiring or promotion 
policies or practices of such individ­
ual or entity, or (2) the admissions 
policies or practices of such individ­
ual or entity." 124 Cong.Rec. 5371 (1978)

Despite the breadth of the amendment's 
language, its supporters focused on the 
use of quotas. According to Representa­
tive Walker, "the purpose of this amend­
ment is to prohibit funding for any quota 
system within the Department of Health, 
Education, and Welfare and the Department 
of Labor so that practices of reverse 
discrimination can be stopped." 124

-91-



Cong. Rec. 5371 (1978). In a colloquy 
with Representative Levitas, Representa­
tive Walker indicated that the amendment 
would affect other numerical measures 
but not goals and timetables:

"Mr. LEVITAS. My question is, Is 
it quite clear that this amendment 
would not prohibit the use of 
affirmative action programs that 
do not rely upon or utilize numeri­
cal quotas, numerical ratios, or 
other numerical requirements, but 
could- use such things as goals or 
timetables?
"Mr. WALKER. I think that is very 
clear in this amendment." 124 Cong. 
Rec. 5372 (1978).

As the debate in the House proceeded, 
there was understandable confusion about 
which numerical measures would be prohi­
bited and which would not. Despite this 
confusion, the amendment was bitterly 
opposed by a number of representatives. 
Speaking in opposition, Representative 
Mitchell stated that minorities would not 
be able to move

"from our present holding plateau 
level unless we have some affirma­
tive action that has some targets, 
some timetables. It has to have

-92-



a basis in numbers." 124 Cong.
Rec. 5374 (1978).

Representative Fenwick echoed this 
concern:

"What we have been trying to do 
is to make sure that our fellow 
citizens are given for once a 
fair chance." 124 Cong. Rec.
5376 (1978).

After further debate, the amendment was 
passed 232-177.

The amendment in the Senate was 
offered by Senator Hayakawa on behalf of 
Senator Helms. Although they were aware 
of the breadth of the House amendment, 
Senators Hayakawa and Helms directed 
their amendment not at the Department of 
Labor but only at HEW. The Hayakawa-Helms 
amendment also differed from the amendment 
in the House in that it prohibited HEW 
only from requiring a "quota...with 
respect to the admissions policies or 
practices of any institution of higher 
education." 124 Cong. Rec. 16280 (1978). 
In extended remarks, the two Senators 
explained that this amendment in fact 
was directed only at HEW requirements

-93-



for fixed and rigid quotas in educational 
admissions in higher education. 124 Cong. 
Rec. 16280-16283 (1978). With very little 
debate, the amendment was adopted on a 
voice vote. 124 Cong. Rec. 16283 (1978).

The amendments, however, did not 
survive further congressional scrutiny. 
Both amendments were deleted from the 
appropriations bill by the House-Senate 
Conference. See Report No. 95-1746,
95th Cong., 2d Sess., 25 (Oct. 6, 1978). 
Specifically, the House-Senate Conference 
Committee:

"Delete[d] language proposed by the 
House which would have prohibited 
the use of funds in the bill in 
connection with the issuance, imple­
mentation, or enforcement of any 
rule, regulation, standard, guide­
line, recommendation, or order which 
includes any ratio, quota, or other 
numerical requirement related to 
race, creed, color, national origin, 
sex, and which requires any indivi­
dual or entity to take any action 
with respect to (1) the hiring or 
promotion policies or practices of 
such individual or entity, or (2) 
the admissions policies or practices 
of such individual or entity." Id.

The House-Senate Conference Committee 
also:

-94-



"Delete[d] language proposed by the 
Senate which would have prohibited 
the use of funds in the bill in 
connection with the issuance, 
implementation, or enforcement of 
any rule, regulation, standard, 
guideline, recommendation, or order 
which includes any quota related to 
race, creed, color, national origin, 
or sex, and which requires any 
individual or entity to take any 
action with respect to the admis­
sions policies or practices of any 
institution of higher education."
Id.

With no language restricting the ability 
of HEW or the Department of Labor to 
require the adoption of race conscious 
numerical measures, the appropriations 
bill was then enacted into law by Congress. 
Pub.L.No. 95-480 (Oct. 18, 1978), 92 Stat. 
1567.

4. Based Upon This Legislative
History, Federal Agencies Have 
Affirmatively Sanctioned The 
Voluntary Use Of Race Conscious 
Measures

Pursuant to authority delegated to 
them, and based upon the 1969 and 1971- 
1972 legislative history reviewed above, 
federal agencies in the discharge of

95-



their responsibilities have issued 
regulations and guidelines uniformly 
encouraging voluntary compliance through 
the adoption of race conscious numerical 
measures. Three sets of regulations and 
guidelines have particular applicability 
to private employers.

(1) 41 C.F.R. Part 60-2, the 
Department of Labor pursuant to §201 of 
Executive Order 11246 has set forth its 
regulations on Affirmative Action Pro­
grams for Government Contractors, also 
known as Revised Order No. 4.

(2) In 29 C.F.R. Part 1607, the 
EEOC pursuant to §713 of its Act, 42 
U.S.C. §2000e-12, has set forth its 
Uniform Guidelines on Employee Selection 
Procedures which in §1607.13B and 
§1607.17 incorporate the federal Policy 
Statement on Affirmative Action The

29. This Policy Statement on Affirmative Action 
was first issued at 41 Fed. Reg. 38814 (Sept.
13, 1976), by the member agencies of the federal 
Equal Employment Opportunity Coordinating Council, 
an umbrella Council created in 1972 by §715 of 
the Act, 42 U.S.C. §2000e-14. On July 1, 1978, 
all functions of the Council were transferred to 
the EEOC and the Council was abolished. See 
Executive Order 12067, 43 Fed. Reg. 28967 (July

-96-



identical Guidelines and Policy Statement 
of the Department of Labor are set forth 
at 41 C.F.R. Part 60--3; of the Department 
of Justice are set forth at 28 C.F.R. Part 
50.14; and of the Civil Service Commission 
are set forth at 5 C.F.R. Part 300.103(c).

(3) In 29 C.F.R. Part 1608, the EEOC 
pursuant to §713 of its Act, 42 U.S.C. 
§2000e-12, has set forth its Affirmative 
Action Guidelines.

Each of the foregoing three sets of 
regulations and guidelines authorizes and 
encourages nearly identical procedures 
for the adoption of race conscious numer­
ical measures: each encourages employers 
to determine whether they are deficient 
in the utilization of minority workers; 
and each encourages voluntary adoption 
of race conscious numerical measures to 
overcome any utilization deficiencies 
especially where an employer has reason

5, 1978), implementing Presidential Reorganization 
Plan No. 1, 43 Fed. Reg. 19807 (May 9, 1978). 
Because the functions of the Council terminated, 
the EEOC and the other agencies thereafter reissued 
the Policy Statement on Affirmative Action, 43 
Fed. Reg. 38290 (Aug. 25, 1978).

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to believe that its employment practices 
have had a racially exclusionary effect 
in the past.

Agency regulations and guidelines 
interpreting remedial legislation, of 
course, are ordinarily entitled to great 
weight. E .g., Lau v. Nichols, 414 U.S. 
563, 571 (1974) (concurring opinion of 
Stewart, J.); Griggs v. Duke Power Co., 
401 U.S. 424, 431 (1971). Yet, here 
there are two reasons to pay even greater 
deference to these regulations and guide­
lines. First, the latter two sets of 
guidelines were issued not only pursuant 
to Title VII but also pursuant to Execu­
tive Order 12067, 43 Fed. Reg. 28967 

30/(July 5, 1978),— - in which the President 
expressly directed the EEOC on behalf of 
all federal agencies to "develop uniform 
standards, guidelines and policies 
defining the nature of employment dis­
crimination" and expressly directed that 
all "agencies shall comply with all final 
rules, regulations, policies, procedures 
or orders of the" EEOC. In view of this

30. See note 29, supra.
-98-



express Presidential authorization, the 
guidelines are entitled to tremendous 
deference. See, Hampton v. Mow Sun Wong, 
426 U.S. 88, 103 (1976).

A second and equally compelling 
reason to pay even greater deference to 
these regulations and guidelines, see 
Regents of the University of California 
v. Bakke, 57 L.Ed.2d 804-806, 823 (1978) 
(opinion of Brennan, J.), is that they 
are consistent both with the intent of 
Title VII and the Executive Order, and 
with the repeated congressional ratifi­
cation of race conscious numerical 
measures.

5. There Is No Conflict Between 
Executive Order 11246 And 
Title VII

Neither Congress, in its many 
deliberations over race conscious numeri­
cal measures under Title VII and Executive 
Order 11246, nor the many federal agencies 
which have issued affirmative action 
regulations and guidelines under Title VII 
and Executive Order 11246 have been able 
to discover any conflict between Title VII

-99-



and Executive Order 11246. There in 
fact is no conflict.

Nonetheless, a majority of the 
court of appeals below somehow discerned 
a conflict and thereupon held that the 
race conscious requirements of Executive 
Order 11246 "must fall before Title 
VII's direct congressional prohibition" 
against discrimination. 563 F.2d at 216.

Although the majority below, having 
found a conflict, correctly looked to 
Justice Jackson's concurring opinion in 
Youngstown Sheet and Tube Co. v. Sawyer, 
343 U.S. 579, 634-660 (1952), the majority 
below erred first by failing to understand 
that there was no conflict, second by not 
recognizing the express sources of Presi­
dential power here, third by refusing to 
review Congress' repeated approval of 
race conscious numerical measures under 
Title VII and the Executive Order, and 
finally by misapplying Justice Jackson's 
analytical framework set forth in Youngs­
town .

In his concurring opinion in Youngs­
town, Justice Jackson established three 
categories for determining the validity

-100-



of Presidential powers which conflict 
with those of Congress:

"1. When the President acts 
pursuant to an express or implied 
authorization of Congress, his 
authority is at its maximum, for it 
includes all that he possesses in 
his own right plus all that Congress 
can delegate. In these circumstances 
... [Presidential action] would be 
supported by the strongest of pre­
sumptions and the widest latitude of 
judicial interpretation, and the 
burden of persuasion would rest 
heavily upon any who might attack it.

"2. When the President acts in 
absence of either a congressional 
grant or denial of authority... there 
is a zone of twilight in which he and 
Congress may have concurrent authori­
ty, or in which its distribution is 
uncertain. Therefore, Congressional 
inertia, indifference or quiescence 
may sometimes, at least as a practi­
cal matter, enable, if not invite, 
measures on independent presidential 
responsibility.

"3. When the President takes 
measures incompatible with the ex­
pressed or implied will of Congress, 
his power is at its lowest ebb...
[and any] claim to a power at once 
so conclusive and preclusive must 
be scrutinized with caution." 343 
U.S. at 635-638.

-101-



In Youngstown, Justice Jackson placed 
President Truman's Executive Order seizure 
of the steel mills in category three 
because, as a majority of the Court 
recognized, Congress on a number of 
occasions prior to 1952 considered and 
explicitly rejected proposals which 
would have given the President power to 
seize the mills. 343 U.S. at 585-589.
The majority below, based only upon a 
wooden understanding of Justice Jackson's 
analysis, placed Executive Order 11246 
also in category three. 562 F.2d at 216.

Not understood by the majority 
below, Executive Order 11246 is based upon 
the procurement powers expressly author­
ized by Congress in Titles 40 and 41 of 
the United States Code. See discussion 
at pp.61-62, supra. And not recognized 
by the majority below, the use of race 
conscious numerical measures has been 
repeatedly ratified by Congress. See 
discussion at pp.74-95, supra. Thus, 
even if there were any discernible con­
flict between Title VII and the Executive 
Order here, Executive Order 11246 would 
be placed in Justice Jackson's first

-102-



category where it "would be supported by 
the strongest of presumptions and the 
widest latitude of judicial interpreta­
tion." 343 U.S. at 636.

The error of the majority below, 
however, was even more fundamental. As 
we have explained in Point A, supra, 
there can be no conflict at all because 
both Title VII and the Executive Order 
are directed toward the same end of 
voluntary compliance through the adoption 
of race conscious numerical measures 
providing work place entry to minority 
workers.

-103-



c. Even Under The Erroneous Theory Of 
The Case Urged By Respondents, The 
District Court Erred In Failing To 
Join A Representative Of The 
Affected Black Employees As A 
Necessary Party Under Rule 19(a)
And In Failing To Allocate Properly 
The Burdens Of Proof
Respondents' theory, that a finding 

of unlawful discrimination against minor­
ity workers is a pre-condition to approval 
of a privately established race conscious 
remedial measure, pre-supposes the poten­
tial for a genuine adversary judicial 
hearing on the issue of the existence 
(or non-existence) of on-site racial 
discrimination. Given the parties before 
the district court in this case, such an 
adversary hearing was an impossibility.

Respondents, of course, had no 
interest in arguing that racial discrim­
ination in hiring or promotion existed 
at the Gramercy plant. Kaiser, mindful 
of its potential liability under Title 
VII, certainly had no interest in pre­
senting evidence of racial discrimina-

1 1 / Thetion at its Gramercy plant.— '
31. A finding that racial discrimination had 
occurred at the Gramercy plant would have

104-



Steelworkers, which, ordinarily would be 
expected to represent the interests of 
the affected minority workers, was 
similarly inhibited from establishing 
the existence of racial discrimination 
at the Gramercy plant since proof of 
racial discrimination would have exposed 
the Steelworkers to Title VII liability 
and would have raised questions concern­
ing a possible breach of the duty of 
fair representation. E.g., Humphrey v. 
Moore, 375 U.S. 335 (1964). Thus, each 
participant before the district court 
possessed a strong pecuniary interest in 
denying that racial discrimination had 
occurred. Not surprisingly, therefore, 
the parties before the district court—  
although divided on the issue of whether 
a finding of racial discrimination was 
necessary to validate the plan--were in 
comfortable agreement that no racial

collaterally estopped Kaiser in any subsequent 
Title VII action seeking back pay. Parklane 
Hosiery Company, Inc. v. Shore, 47 U.S.L.W. 4079 
(Jan. 9, 1979) (No. 77-^1305) . Kaiser was already under 
attack for allegedly discriminating at its nearby 
Chalmette plant. Parson v. Kaiser Aluminum s 
Chemical Corp., 575 F.2d 1374 (5th Cir. 1978).

-105-



discrimination had taken place. The 
district court placed its imprimatur on 
this exculpatory consensus by entering a 
finding that no racial discrimination 
had occurred at Kaiser's Gramercy plant. 
Such a procedure does not satisfy minimum 
procedural standards of fairness and cer­
tainly cannot provide the basis for 
setting aside a private plan aimed at 
eradicating the effects of reasonably 
apprehended racial discrimination.

First, given the non-adversary 
posture of the parties on the question 
of racial discrimination, no case or 
controversy existed on the issue. E.g., 
Moore v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 47 (1971); United 
States v. Johnson, 319 U.S. 302 (1943). 
See generally, Muskrat v. United States, 
219 U.S. 346 (1911) .22-/

32. The lack of a case or controversy on the 
question of racial discrimination strips the 
district court of power to enter a finding as to 
its existence. While Amici do not suggest that 
Kaiser and the Steelworkers acted in bad faith, 
toleration of non-adversary fact-finding on the 
question of racial discrimination virtually 
invites collusive litigation. For example, an 
employer facing potential Title VII difficulties

-106-



Second, even if a bare case or 
controversy was presented, settled prin­
ciples of judicial administration require 
the joinder of affected black workers as
necessary parties-defendants under Rule

3 3/19(a).—  E.g., Provident Tradesmen Bank 
& Trust Co. v. Patterson, 390 U.S. 102 
(1968); Lumberman's Mutual Cas. Co. v. 
Elbert, 348 U.S. 48 (1954); Western Union 
Telegraph Co. v. Pennsylvania, 368 U.S.
71 (1961). See generally, Shields v. 
Barrow, 17 How. 130, 139 (1854).

might be tempted to promulgate a voluntary plan, 
never intending to enforce it, and await challenge 
by adversely affected white workers. Since, as 
in the district court in this case, no party to 
such a challenge would be motivated to offer proof 
that discrimination had occurred, the court would, 
as did the district judge below, enter a finding 
of non-discrimination. The employer would then be 
in a position to use the findings as stare decisis 
if not collateral estoppel, against minority work­
ers alleging Title VII liability.
33. Once joined as necessary parties under Rule 
19(a), consideration could be given to certifying 
the joined black workers as class representatives 
under Rule 23. In the absence of retained counsel, 
court appointed counsel for the class would be 
possible.

-107



Rule 19(a) provides that an avail- 
akle person "shall be joined as a party" 
if he claims an interest relating to the 
subject of the action which, as a prac— 
tical matter, might be seriously impaired 
by the disposition of the action. Rule 
19(a) (2) (i) FRCP.— Minority employees 
at Kaiser's Gramercy plant clearly fall 
within such a description of a Rule 19(a) 
"necessary" party. E.g., Provident

34. Rule 19(a) states:
Persons to be Joined if Feasible. A person 

who is subject to service of process and whose 
joinder will not deprive the court of jurisdic­
tion over the subject matter of the action shall 
be joined as a party in the action if (1) in his 
absence complete relief cannot be accorded among 
those already parties, or (2) he claims an inter­
est relating to the subject of the action and is 
so situated that the disposition of the action 
in his absence may (i) as a practical matter im­
pair or impede his ability to protect that inter­
est or (ii) leave any of the persons already 
Par -̂'’-e® subject to a substantial risk of incurring 
double, multiple, or otherwise inconsistent obli­
gations by reason of his claimed interest. If he 
has not been so joined, the court shall order 
that he be made a party. If he should join as a 
plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary 
plaintiff. If the joined party objects to venue 
and his joinder would render the venue of the 
action improper, he shall be dismissed from the 
action." Rule 19(a) F.R.C.P.

-10 8-



Tradesman Bank & Trust Co. v. Patterson, 
390 U.S. 102 (196 8) Accordingly, the
district court was under an obligation to 
order joinder of the affected minority 
workers under Rule 19(a). English v. 
Seaboard Coast Line R.R., 465 F.2d 43 
(5th Cir. 1972). Of course, the failure 
of the parties before the district court 
to insist upon joinder cannot relieve 
that court from its obligation to order 
the joinder of available "necessary" 
parties whose interests were not ade­
quately represented by the parties 
actually before the court. As Mr. Justice 
Harlan noted in discussing Rule 19 in 
Provident Tradesmen:

"When necessary... a court of
appeals should, on its own

35. Given the amenability of minority employees 
at the Gramercy plant to service of process and 
given the non-diversity jurisdictional base of 
respondents' complaint, the "availability" of the 
minority employees under the first sentence of 
Rule 19 (a) is not open to question. It is, there­
fore, not necessary to consider whether the af­
fected minority employees would be "indispensible" 
parties under Rule 19(b). Provident Tradesmen 
Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968).

-109-



initiative, take steps to protect 
the absent party, who of course 
had no opportunity to plead and 
prove his interest below." 390 
U.S. at 111.
Amici do not suggest that in an or­

dinary Title VII case, employees whose 
interests are potentially adversely 
affected must be joined as necessary 
parties. In such ordinary Title VII 
contexts, the named defendants— typically 
the employer and the union— will generally 
represent the interests of the potentially 
affected employees in an adequate manner. 
See generally, Waters v. Wisconsin Steel 
Works, 427 F.2d 476 (7th Cir. 1970). In 
ordinary Title VII contexts, the duty of 
fair representation owed by a union to 
all employees— minority and white— may 
be relied upon to render the union an 
adequate surrogate for potentially af­
fected employees. Bowe v. Colgate-Pal­
molive Co., 416 F .2d 711 (7th Cir. 1969). 
Unlike an ordinary Title VII case, how­
ever, the union in this case was 
confronted with an insurmountable 
conflict of interest. In order to serve 
the interest of the absent minority

-110-



workers, the union would have been 
required to introduce evidence of past 
racial discrimination at the Gramercy 
plant— evidence which would have exposed 
the union treasury to potential Title VII 
liability. When, as here, a union's 
pecuniary interests are in direct con­
flict with the interests of absent 
employees, the union cannot be relied 
upon to act as the surrogate for the 
absent employees. English v. Seaboard 
Coast Line Railroad, 465 F.2d 43 (5th Cir.
1972) ; Hayes v. Seaboard Coast Line R.R.,
3 C.C.H. E.P.D. 1(8169 (S.D. Ga. 1971); 
Banks v. Seaboard Coast Line R.R., 51 
F.R.D. 304 (N.D. Ga. 1970). Cf., Airline 
Stewards and Stewardesses Ass'n v. Ameri­
can Airlines, Inc,, 490 F.2d 636 (7th Cir.
1973) .—  Thus, at a minimum, the judg-

36. Given the clear applicability of Rule 19(a), 
it does not appear necessary to consider whether 
notions of procedural due process could be vio­
lated by permitting the issue of racial discrim­
ination to be litigated in the absence of the 
only affected party with an interest in proving 
it. However, decisions of this Court make clear 
that notice and an opportunity to participate in 
the hearing are fundamental elements of procedural 
due process of law. E.g., Mullane v. Central

-111



ment below must be vacated and the case 
remanded for a hearing at which potentially 
affected minority workers must be joined 
as parties-defendants.

Since, even under respondent's view 
of the case, additional proceedings would 
be necessary in the district court, it is 
appropriate to consider the proper proce­
dures which the district court should 
follow on remand.

First, the district court should 
consider whether the minority workers 
joined under Rule 19(a) should be treated 
as the representatives of a Rule 23 class 
or whether each affected worker should 
be individually joined. Second, the 
district court should assure that the 
joined minority employees are adequately

Hanover Bank & Trust Co., 339 U.S. 306 (1950). 
Indeed, the fact that notions of due process 
would almost certainly prevent the district 
court's findings on racial discrimination from 
being given preclusive effect create the very 
real possibility that both Kaiser and the union 
will be subjected to inconsistent adjudication 
on the issue. Such a possibility is yet another 
basis for invoking Rule 19. See Rule 19 (a)(2) 
(ii) F.R.C.P.

-112-



represented by competent counsel.
Third, the district court should 

provide the joined minority employees 
with an opportunity to assert cross­
claims for relief pursuant to Rule 13(g) 
against Kaiser and the Steelworkers as 
co-defendants.

Fourth, the district court should 
encourage the settlement of any such 
cross-claims in accordance with the long 
standing policy of the Fifth Circuit.
• 9* / United States v. Allegheny-Ludlum 

Industries, Inc., 517 F.2d 826 (5th Cir. 
1975), cert, denied, 425 U.S. 944 (1976). 
Any such bona fide settlement could be 
incorporated in .a consent decree termi­
nating the Rule 13(g) cross-claims.
Such a consent decree should constitute 
sufficient judicial validation of the 
existence of racial discrimination to 
satisfy even respondents.

Finally, if settlement of the cross­
claims proves impossible, the parties 
would proceed to trial on the issue of 
racial discrimination. Since respondents 
here are plaintiffs below seeking to set 
aside the status quo (consisting of the

-113-



privately established plan), orthodox 
evidentiary analysis allocates the 
persuasion and production burdens on the 
issue of racial discrimination to them. 
Where a plaintiff (either the government 
or a private party) seeks to compel an 
unwilling defendant to alter his status 
quo in favor of a race conscious remedy, 
the plaintiff appropriately bears the 
burden of proof on the facts needed to 
establish the claim. Furnco Construction 
Co. v. Waters, 57 L.Ed.2d 957 (1978).
Where, as here, a plaintiff seeks to set 
aside an existing privately established 
plan, he should bear a similar burden of 
proof. See generally, James, Burdens of 
Proof, 47 U.Va.L.Rev. 51 (1961).
Moreover, modern analysis suggests that 
a court's decision as to the allocation 
and size of the burden of proof is, often, 
an attempt to deflect error in accordance 
with strongly held social policies. E .g., 
Mullaney v. Wilbur, 421 U.S. 624 (1975); 
Patterson v. New York, 432 U.S. 197 
(1977); In re Winship, 397 U.S. 358 (1969). 
See generally, Underwood, The Thumb on 
the Scale of Justice: Burdens of Persuasion

114-



in Criminal Cases, 86 Yale L.J. 1299 
(1977); Cleary, Presuming and Pleading;
An Essay on Juristic Immaturity, 12 
Stan.L.Rev. 5 (1959). Two strong social 
policies coalesce in imposing the burden 
of proof on persons seeking to set aside 
privately adopted plans aimed at remedy­
ing reasonably apprehended racial discrim­
ination. First, racial discrimination is 
and has been for 25 years, this nation's 
most pressing social problem. The docket 
of this Court over the past generation 
bears witness to our nation's struggle 
against bigotry and racism— a struggle 
which, while not yet successful, is, 
nevertheless, a source of some pride.
Where reasonable grounds exist for per­
sons to believe that racial discrimina­
tion has occurred, it is consistent with 
our national commitment to eradicating 
racial discrimination against vulnerable 
minorities to require persons seeking to 
frustrate remedial action to demonstrate 
that no such remedial action is necessary. 
Second, as Amici have noted at pp. 42-55, 
supra, a core principle of American 
jurisprudence is the encouragement of

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"private ordering." See generally, H.
Hart & A. Sachs, The Legal Process: Basic 
Problems in the Making and Application of 
Law, 183-185 (Unpub. Ed. 1958). Thus, 
when private parties seek in good faith 
to assist in resolving a pressing social 
problem, we should be loathe to reject 
their private established remedial plans. 
Where, as here, persons have in good faith 
used "private ordering" in the struggle 
to remedy the effects of reasonably appre­
hended past racial discrimination, the 
burden of proof should lie with persons 
seeking to set aside the plan. Put 
bluntly, error should be deflected in 
favor of good faith private attempts to 
cope with reasonably apprehended racial 
discrimination.

Finally, even if the burden of proof 
on the issue of racial discrimination is 
deemed to rest with the joined minority 
employees, the evidence demonstrates the 
clear existence of an unrebutted prima 
facie case of discrimination at the 
Gramercy plant. See pp. 9-16, supra. 
Suffice it to say that the evidence 
concerning the Gramercy plant would

116-



parallel the evidence found by the Fifth 
Circuit to constitute a prixna facie case 
of discrimination at the nearby Chalmette 
plant. Parson v. Kaiser Aluminum & Chem­
ical Corp., 575 F .2d 1374 (5th Cir. 1978). 
In accordance with standard Title VII 
practice, the establishment of a prima 
facie case would shift the production 
burden to Kaiser, the union and the 
respondents to rebut the prima facie case 
with evidence demonstrating a non-racial 
explanation for the apparently discrimi­
natory pattern. E.g., Griggs v. Duke 
Power Co., 401 U.S. 424 (1971); McDonnell 
Douglas v. Green, 411 U.S. 792 (1973) .
If the prima facie case were successfully 
rebutted, traditional Title VII practice 
requires that the persuasion burden remain 
with the minority employees. Furnco Con­
struction Corp. v. Waters, 57 L.Ed.2d 
957 (1978).

Whatever the wisdom of imposing the 
persuasion burden on Title VII plaintiffs 
in an ordinary case, Amici believe that 
the persuasion burden should be borne by 
persons seeking to set aside a good faith 
private remedial plan. It is unnecessary

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to resolve the question at this stage of 
the case, since the parties have not 
shown an ability to rebut the prima facie 
case.

Thus, on remand, unless the case is 
settled, Kaiser and the Steelworkers, at 
a minimum, would be obliged to rebut a 
prima facie case of discrimination, 
rather than presenting no evidence, as 
they did below.

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CONCLUSION
For the reasons set forth in Points 

A and B, the judgment below should be 
reversed. If the judgment is not reversed, 
it nonetheless should be vacated and 
remanded for the reasons set forth in 
Point C.
Dated: New York, New York

January 25, 1979

Respectfully submitted,
E. RICHARD LARSON 
BURT NEUBORNE 
BRUCE J. ENNIS 
American Civil Liberties 
Union Foundation 
22 East 40th Street 
New York, New York 10016
FRANK ASKIN
Rutgers University Law 
School

180 University Avenue 
Newark, New Jersey 07102

Attorneys* for Amici 
Curiae

* we wish to express our appreciation to Paul 
Landau of Hofstra Law School for his assistance 
with this brief.

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