Weber v. Kaiser Aluminum & Chemical Corporation and United Steelworkers of America, AFL-CIO Supplemental Brief Amici Curiae

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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

KAISER ALUMINUM & CHEMICAL CORPORATION 
AND UNITED STEELWORKERS OF AMERICA,

On Appeal from the United States 
District Court for the Eastern 

District of Louisiana

SUPPLEMENTAL BRIEF FOR THE UNITED STATES AND 
THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION AS AMICI CURIAE

Plaintiff-Appellee

AFL-CIO
Defendants-Appellants.

ABNER SIBAL General Counsel
DREW S. DAYS III Assistant Attorney Gene

JOSEPH T. EDDINS “ Associate General Counsel GERALD J. GALLINGHOUSE 
United States AttorneyBEATRICE ROSENBERG 

LUTZ A. PRAGER 
AttorneysEqual Employment Opportunity 
Commission

CARIN A. CLAUSE 
Solicitor of Labor

ROBERT T. MOORE

JAMES D. HENRY 
LOUIS G. FERRAND, JR. 
GARY M. BUFF

RICHARD S. UGELCW 
Attorneys
Department of Justice

Attorneys
Department of Labor



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 76-3266

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

Plaintiff-Appellee,
v.

KAISER ALUMINUM & CHEMICAL CORPORATION 
AND UNITED STEELWORKERS OF AMERICA, 

AFL-CIO,
Defendants-Appellants.

On Appeal from the United States 
District Court for the Eastern 

District of Louisiana

SUPPLEMENTAL BRIEF FOR THE UNITED STATES AND 
THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION AS AMICI CURIAE

INTRODUCTION
At the oral argument in this cause, held on March 28,

1977, the Court invited further discussion by briefs of the 
relevance of United Jewish Organizations of Williamsburgh, Inc. 
v. Carey, 45 U.S.L.W. 4221 (March 1, 1971), to the issues raised 
herein. This supplemental brief is filed on behalf of the 
United States and the Equal Employment Opportunity Commission in 
response to that invitation. We would also like to take this



1977), and the recent decision of the Court of Appeals for the 
Third Circuit in E. E.0.C. v. American Telephone & Telegraph,
Co., et al., No. 76-2217, No. 76-2281, No. 76-2285 (April 22,
1977) which we believe to be relevant.

DISCUSSION
In United Jewish Organizations, the Supreme Court sustained 

the constitutionality of a race conscious reapportionment plan 
enacted by the New York State Legislature in order to render cer­
tain legislative districts of the State acceptable to the Attorney 
General of the United States under Section 5 of the Voting Rights 
Act, of 1965, as amended, 42 U.S.C. §1973.

One of the geographic areas affected by this reapportionment 
was the Williamsburgh section of Brooklyn (Kings County, New York), 
in which a community of some 30,000 Hasidic Jews resided. Prior 
to reapportionment, the entire Hasidic community was situated 
in one assembly and one senate district. To achieve a nonwhite 
population goal of 65% in certain districts, the reapportion­
ment plan divided the Hasidic community by placing a portion

_ vof it into each of two assembly and two senate districts. The
plaintiffs challenged the redistricting on the grounds that it

opportunity to bring to the Court's attention the Supreme Court
decision in Califano v. Webster, 45 U.S.L.W. 3630 (March 21,

1/ 65% was the non-white population figure which the Attorney
General indicated would bring the legislative districting of 
Kings County into compliance with the Voting Rights Act.

2



diluted the value of their vote for the sole purpose of achiev­
ing a racial quota, which it was alleged, violated the Fourteenth 
Amendment. The Supreme Court rejected this challenge.

There are important similarities between United Jewish 
Organizations and the instant case. Each involves the volun­
tary action by a defendant to comply with efforts of the 
executive branch to remedy the present effects of discrimi­
nation by implementing race conscious affirmative relief.
In United Jewish Organizations, the Court noted that the appli­
cation of Section 5 of the Voting Rights Act was not dependent 
upon proof of past discrimination by the state. 45 U.S.L.W. 
at 4225-26.

Moreover, in both United Jewish Organizations and the pre­
sent case, the affirmative remedy adopted included a specific 
numerical goal which was representative of the population 
characteristics of the relevant community. Finally, as the 
Supreme Court noted, the use of numerical goals to achieve 
specific objectives in the context of the Voting Rights Act 
has been ratified by the Congress and sanctioned by the 
courts. 45 U.S.L.W. at 4225. Likewise, the use of numerical 
goals as an important element of affirmative actions plans 
under Executive Order 11246, as amended, has also been rati­
fied by the Congress and sanctioned by the courts (see pages 
19-30 of our principal brief).

3



The Supreme Court in Califano v. Webster, supra, recently-
sustained a statute which granted females reaching age 62 prior 
to 1972 an economic advantage over males in the computation of 
social security entitlements. The Supreme Court referred to 
the historic job discrimination which put women at an economic 
disadvantage and held that the Congress may, as it did, enact 
remedial legislation to compensate women for economic disabili­
ties suffered by them as a result of that societal discrimination.

As we have emphasized in our principal brief, we believe 
that the United States has a compelling interest in redressing 
historic job discrimination by the use of remedial programs.
The Congressional use of social secuirity benefits to compen­
sate "... women for past economic discrimination" is but one 
example. 45 U.S.L.W. at 3630. The remedial policies embodied 
in Executive Order 11246 and other employment discrimination 
programs serve the equally important government objective of 
remedying the effects of society's disparate treatment of 
minorities and females.

Lastly, we attach for the Court's consideration the 
slip opinion in E.E.O.C. v. American Telephone & Telegraph,
Co., et al., supra. We believe that this decision is rele­
vant to the discussion in our principal brief regarding the

4



differences between relief under Title VII and affirmative 
action under the Executive Order program (see slip op. pp. 
15-16).

ABNER SIBAL 
General Counsel

JOSEPH T. EDDINS 
Associate General Counsel
BEATRICE ROSENBERG 
LUTZ A. PRAGER 
Attorneys
Equal Employment Opportunity 
Commission

CARIN A. CLAUSS 
Solicitor of Labor

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

DREW S. DAYS III 
Assistant Attorney General

GERALD J. GALLINGHOUSE 
United States Attorney

RICHARD S. UGELOW 
Attorneys
Department of Justice



CERTIFICATE OF SERVICE

I, Robert T. Moore, hereby certify that a copy of the 
the foregoing Supplemental Brief of the United States and 
the Equal Employment Opportunity Commission was on this 27th 
day of April, 1977, mailed, first class, postage prepaid, 
to the following counsel of record:
Michael Gottesman, Esquire Bredhoff, Cushman, Gottesman 
& Cohen
1000 Connecticut Avenue, N.W. 
Washington, DC 20036
Robert J. Allen, Jr., Esquire 
Legal Department 
Kaiser Aluminum & Chemical 
Corporation 
300 Lakeside DRive Oakland, CA 94612
Cloyd R. Mellott, Esquire 
Eckert, Seamans, Cherin & 
Mellot
600 Grant Street 
Pittsburgh, PA 15219
Burt A. Braverman, Esquire 
Cole, Zylstra & Raywid 
2011 Eye Street, N.W. 
Washington, DC 20006
John W. Finley, Jr., Esquire 
Brashich and Finley 
501 Madison Avenue 
New York, NY 10022
Arnold Forster, Esquire 
315 Lexington Avenue 
New York, NY 10016

Michael R. Fontham, Esquire Stone, Pigman, Walther,
Whittmann & Hutchinson 
1000 Whitney Bank Building 
New Orleans, LA 70130
Frank W. Middleton, Jr., Esquire 
Taylor, Porter, Brooks & Phillips P.O. Box 2471 
Baton Rouge, LA 70821
Jerome A. Cooper, Esquire 
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, AL 35203
Joseph P. Fischer, Esquire 
Law Department 
ALCOA Building 
Pittsburgh, PA 15219
Austin Graff, Esquire 
6601 West Broad Street 
Richmond, VA 23261
Gene E. Voigts, Esquire 
Shook, Hardy & Bacon 
Mercantile Tower Building 
1101 Walnut Street 
Kansas City, MO 64106

ROBERT T. MOORE 
Attorney
U.S. Department of Justice 
Washington, DC 20530



UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

NOS. 76-2217, 76-2231 and 76-2285

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, JAMES D. HODGSON, 
Secretary of Labor, United States Department of Labor and 
UNITED STATES OF AMERICA

vs.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, NEW ENGLAND 
TELEPHONE AND TELEGRAPH COMPANY, THE SOUTHERN NEW ENGLAND 
TELEPHONE COMPANY, NEW YORK TELEPHONE COMPANY, NEW JERSEY 
BELL TELEPHONE COMPANY, THE BELL TELEPHONE COMPANY OF 
PENNSYLVANIA AND THE DIAMOND STATE TELEPHONE COMPANY,
THE* 0-ESAPEAKE AND POTOMAC TELEPHONE COMPANY, THE 
CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND,
THE CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA,POTOMAC TELEPHONE COMPANY OF WESl 

BELL TELEPHONE AND TELEGRAPH COMPANY, 
TELEPHONE’COMPANY, THE OHIO BELL

'ATI BELL INC., MICHIGAN BELL •BELL
COMPANY CINCINNa.

THE CHESAPEAKE AND 
VT.RGINIA, SOUTHERN 
SOUTH CENTRAL
TELEPHONE COMPANY, INDIANA BE CL TELEPHONE COMPANY^, 
INCORPORATED WISCONSIN TELEPHONE COMPANY, ILLINOIS 
BELL TELEPHONE COMPANY, NORTHWESTERN BELL TELEPHONE 
COMPANY, SOUTHWESTERN BELL TELEPHONE COMPANY, THE 
MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, 
PACIFIC NORTHWEST BELL TELEPHONE COMPANY, THE PACIFIC 
TELEPHONE AND TELEGRAPH COMPANY AND B^LL rELEPHONii 
COMPANY OF NEVADA
COMMUNICATIONS WORKERS OF AMERICA AFL-CIO (CWA) 
(intervening defts.)
TELEPHONE COORDINATING COUNCIL TCC-1 (national^Bell 
Council), IBEW ("IBEW"Council) and THE ALLIANCE OF 
INDEPENDENT TELEPHONE UNIONS - intervening defts.

COMMUNICATIONS WORKERS OF AMERICA, 
Appellant in No. 76-2217

THE TELEPHONE COORDINATING COUNCIL, TCC-1, 
IBEW - Appellant in No. 76-2281
ALLIANCE OF INDEPENDENT TELEPHONE UNIONS, 

Appellant in No. 76-2285



Of Counsel:
JAMES A. DeBOIS

AMERICAN TELEPHONE L 
TELEGRAPH COMPANY 
195 Broadway
New York, New York j.0036

BERNARD G. SEGAL 
BARRY SIMON

SCHNADER, HARRISON, SEGAL 
6c LOUTb
1719 Packard. Building 
Philadelphia, Pa. 19102

Of Counsel:
CHARLES V. KOONS 
MATTHEW A. KANE 

KANE 6c KOONS 
1100 - 17th St. N.W. 
Washington, D.C. 20036

THOMPSON POWERS 
JANE MeGREW 
MORGAN D. HODGSON 

SYEPTOE 6c JOHNSON 
1250 Connecticut Avenue, N.W. 
Washington, D.C. 20036 

Attorneys for American Telephone 
6c Telegraph Company, et al.

RICHARD H. MARKONJ.TZ 
MIRIAM L. GAFNI 
MARKOWITZ ; 6c KIRSCHNER 
1500 Walnut Street 
Philadelphia, Pa. 19106 

Attorneys for Communications 
Workers of America

ELI HU I. LEI FEE.
SHERMAN, DUNN, COHEN 6c LEiFER 
1125 Fifteenth Street, N.W.
Suite 801
Washington, D.C. 20005
LOUIS H. WILDERMAN 
MERANZE, KATZ, SPEAR & WILDERMAN 
21st Floor, Lewis Tower Building 
15th and Locust
Philadelphia, Pennsylvania 19102 

Attorneys for IBEW Council



ABRAHAM WEINER 
^AUL M . LEVINS ON
MAYER, WEINER <S LEVINSON 
19 West 44th Street 
Nev7 York, New York 10036 

Attorneys for Allrance oj- 
Independent Telephone Unions

4



GIBBONS, Circuit Judge
This is an appeal by three labor unions: the Communica- 

cions Workers of America (CWA), the Telephone Coordinating Council 
TCC-1, International Brotherhood of Electrical Workers (I3EW), 

and the Alliance of Independent Telephone Unions (Alliance) 
(hereinafter referred to collectively as the intervening 
defendants). The order below denied their motions to modity 
a consent decree, dismissed the motion of CWA for a preliminary 
injunction against continued implementation of an affirmative 
action override provided for by Che decree, and granted the 
motion of the plaintiffs and the original defendants for the 
entry of a supplemental injunctive order. The plaintiffs are the 
Equal Employment Opportunity Commission (EEOC), the Secretary ot 
labor, and the United States. Their complaint, filed on January 

18, 1973, charged violations of the Fair Labor Standards Act, 
of Title VII of the Civil Rights Act or 1964, and of Executive 
Order 11246. The defendant is the American Telepp.one and 

Telegraph Company (AT&T) , appearing-' for itself and on behalf 
of its associated telephone companies in the Bell System. On 
the same day that the complaint was fried AT&T answered, deny u p  
the violations alleged. However, it simultaneously approved and

1



consented to a decree which embodied and was designed to 
enforce a negotiated agreement under which AT&T undertook to 
implement a model affirmative action program. That program . 
was designed to overcome the effects of past employment dis­
crimination in the Bell System with respect to women, blacks, 
and other minorities. The intervening defendants contend that 
the consent decree, as originally agreed to and as supplemented, 
conflicts with provisions of collective bargaining agreements
, f-spn and AT&T and otherwise unlawfully invades rightsbetween Lnem ana eicc-L, ^

c- r onoetitive seniority in transferof their members respecting competi.iv
1

and promotion. hTe aa.firm.
I. The Consent Decree

in November 1970, AT&T filed with the Federal Communica­
tions Commission (FCC) a proposed tariff which would increase 
interstate telephone rates. Before that filing was acted on,

t  The decision a p p e a l e d ^
Opportunity Commission . 1 * prior history of this pro-
419 F.Supp. 1022 (E.D.Pa. 1976). ? Employment Opportunitytreated litigation may be gl*aned ^omjCquaL 506 F .2d 735
Commission v. American Telephon^ & J  in part 356 F.Supp.
(3d Cir. 1974) affirmin&j£^a£  — T ^ T ^ Z ^ n l z e d  that CWA would
1105 (E.D. Pa. 1973). In that case we ^ â rotect its existing 
have standing to intervene as a dei^ eafter CWA, IBEW and Alliance 
collective bargaining agreement . . e e as defendants formoved for and were granted leave to ^terven 
the purpose of seeking modification of the consent

-  2 -

H-v. -CC-» W>T *> M1 ' i .r-̂L.1 ' l-'  ̂ wv • - - - —— ->• ~-- • - - •' *..
... ___ ‘4  . . y  . . t  /.V -t  r:  *v  * '* » * * • >



EEOC filed with the FCC a petition requesting that the increase

be denied because AT&T's operating companies were engaged in 
systemwide discrimination against women and minorities. The 
FCC initiated a special proceeding to consider the charges, 
holding 60 days of hearings in 1971 and 1972. A number of 
organizations intervened in support of the EEOC. While the 
hearings progressed, settlement negotiations took place between 

AT&T and the government parties, w m c n  eventually led 
termination of the FCC special proceeding and the entry of the 
Consent Decree. Although the Alliance of Independent Telephone 
Unions did not participate in negotiating the Consent Decree, tea

A rvTA invited to do so but remainedIBEW did participate, and CWA was rnvitec uo
deliberately aloof. 365 F.Supp. at 1108, 1109.

The Bell System is one of the largest employers in the

United States. Traditionally, its operating companies have 
been organized along departmental lines. The plant department 
has been responsible for installation'and maintenance of physical 
facilities such as central office equipment, transmission lines, 

and subscriber telephones. The traffic department has been 
responsible for putting calls through, operator assistance, 
information, and related services. The commercial department 

has handled subscriber sales and Dilling. The accou 
department has performed the bookkeeping and accounting runctions

3



Until at least the late 1960's, Bell System hiring practices 
generally followed departmental lines. The plant department, 
in which craft jobs predominated, was traditionally a male 
preserve, while female employees were generally employed as 
operators, bookkeepers, or in other clerical occupations in 
the traffic and commercial departments. Pay scales at both 

entry and higher levels in the plant department were, and 
remain,higher than for employees with comparable length of 
service in the other departments. Transfers from the traffic 
or commercial departments were possible, but there was a general 
policy of slotting a transferred employee in at the next higher 
pay rate than that last enjoyed in the previous position.
Since traffic and commercial employees had lower starting 
rates and lower rates at each step of the wage progression 
schedule, that policy resulted in a transferee to the plant- 
department receiving a lower rate of pay than would an employee 
performing the same job who had been hired on the same date, 
but who had started in the plant department. These hiring 
practices resulted in a concentration of males and females m  

certain classifications. Moreover there was an imbalance 
between the racial and ethnic composition of the work forces, 
of many operating companies and the racial ^nd e<_hnic makeup

4



their available labor markers. The intervening defendants 
do not dispute that past patterns and practices were dis­
criminatory, nor do they dispute that the present work force 
in many Bell System departments still reflects those past 

patterns and practices.
The Consent Decree directs the Bell System Companies 

to establish goals and intermediate targets to promote the 

full utilization of all race, sex, and ethnic groups in 
each of fifteen job classifications. The intermediate targets, 

set annually, reflect the representation of such groups in the 
external labor market in relevant pools for each operating 
company’s work force. The intermediate targets are the 
major prospective remedies in the Consent Decree. When any 
Bell Company is unable to achieve or maintain its intermediate 
target,-applying normal selection standards, it is required by 
the decree to depart from those standards in selecting candidates 
for promotional opportunities. Ityeust then pass over candidates 

with greater seniority or better qualifications in favor of 
members of the underrepresented group who are at least ’"oasically

. - ffiVmflrive action override, the greater qualified.” Without tars afrrrmatrv
time in title of incumbent members of the over-represented race, 

sex, or ethnic group would inevitably reduce the opportunity

for advancement of the under-represented groups and would perpetuat

5



the effects of the former discrimination. The' affirmative action 
override applies, however, only to minority promotional oppor­
tunity. A promotion under the override does not result in any 
increase in competitive seniority for purposes of layoff or 
rehire, as to which the collective bargaining agreements 

control.2 The life of the decree is sin; years, ending on 
January 17, 1979. It provides that AT&T may bargain collectively 
with collective bargaining representatives for alternative pro­

visions which would also comply with federal law. No such 
alternative provisions have been presented to. the district court.

II. The Supplemental Order .
In an interim report on compliance with the Consent 

Decree it appeared that in a number of specific categories 
the Bell Companies fell short of attaining intermediate targets 
promulgated for 1973. The government plaintiffs and AT&T jointly 
moved for the entry of a supplemental order aimed .at remedying

2 The consent decree, Part A § 1II-C ter_Met credited service shall be used ior deter 
to in in®6 layoff and related force adjustments and 
recall to jobs where nonmanagement female and 
minority employees would otherwise be laid orf, 
Effected or not recalled. Collective bargaining 
agreements or Bell Company practices snail govern 
the confines of the group of employees being 
sidered. Provided, however, vacancies created 
bv layoff and related torce adjustments shall 
not be considered vacancies for purpose 
fer and promotion under thrs Section.

6



thase deficiencies and assuring future achievement of 
targets and goals. The supplemental order provides that 
unmet targets' shall be carried forward in certain establish­
ments and job classifications. For a two month period ending 
on October 24, 1976 some Bell Companies were required to make 
all placements in affected job classifications from groups 

as to which their targets had not been met. The supplemental 
order also provides for the creation or a Bell System Affirma­
tive Action Fund and its expenditure on projects which will 
advance the objects of the decree. It also articulates tne 
understanding of the parties that while the original Consent 

Decree was not intended to supplant the collective bar­
gaining agreements, to the extent that any provisions of the 
latter would prevent the achievement of the affirmative action 
targets and goals, the decree controlled. The^carry-forward 
provisions of the supplemental order do hot enlarge the Bell 
companies' total affirmative action obligations under the

Consent Decree, nor do they extend its life.

III. Bell System Promotional Seniority 
Since the only alleged conflict between the collective 

bargaining agreements and the Consent Decree and supplemental

order relates to promotional seniority, our sta-trn0
r , ^aoinpd-for promotional practices point is a description of bargained for P _______________



The contracts between AT&T and each of the intervening defendants 
are not identical. As to each intervening defendant there are 

also variations, in contracts v i *  specific operating com­
panies, negotiated locally to reflect local conditions and 
practices. However, a common feature of all tne agreements is 
that seniority for all purposes is determined by "net credited 
service" in any department in the Bell System. It is also com­
mon to provide that in selecting employees for promotion, other 
factors being equal, the Company will promote the employee with 
the greatest net credited service. However, it is clear that 
the company has not bargained to the union any role in the 
determination of employee qualifications. Soma ag cent 
to "the employee whom Company rinds is best qualified, 
speak of "ability, aptitude, attendance, physical fitness 
the job, and proximity to the assignment." Some agreements even 
qualify the seniority-equal qualification language by language 
to the effect that "[Nothing in this paragraph shall be con­
strued to prevent Company from promoting employees for unusually 
meritorious service or exceptional ability. nlmough their 
approach to the alleged conflict between the Consent Decree and

8



i *

their collective bargaining agreements is not identical the 
intervening defendants agree -that the bargained-for promotional 

system is a merit selection system. Management determines the 
employee best qualified in its judgment, but seniority decides
the issue where two employees are considered by management to

, Th^ effect or the affirmative action be equally qualified. ihe ei^ecc

« . . . « . « -  - ■  “  < r ° "  a

«... “ “  ‘
under pre-decree practice. The decree provides for selecting,

f nprqonS those who in the judgment from the under-utilized group of persons,
. . r- j »' Although the briefs of the<- ''basically qualified. AiUlUU5of management are oasicao-^y h

„ ..V,- issue of competitive seniority, tb intervening defendants stress the xssu
.. T tjM  ch under the contracts woulc roal dispute is less over seniority, which

• eases of equal qualification, as overo-ily be determinative in cases
. Rifled" oriterioh. The continued the departure from the "best qualified

operation of that criterion would,^of course, significantly

confine promotions within departmental lines, as ha, b
p3st practice, since experience in the department will always
be a significant factor in an employee's qualification level.

,T rT hlS agreed, in the instances _. i l. ronsent Decree AT&T has a0x. >Bv executing the vonsem
il which the affirmative action override applies, to limit its

- 9 -

T



bargained-for management prerogative or determining the 
employee best qualified for promotion, so long as it promotes 
a basically qualified applicant from an under-represented group.

The unions urge that it may not do so without illegally 
breaching their collective bargaining agreements and the 

rights of some of the employees they represent.
The Union Contentions

Claiming standing as representatives of their members 

and by virtue of the conflict between the affirmative action 
override and the collective bargaining agreements, the inter­
i o r  unions attack the Consent Decree on a number of grounds.

Some of those grounds transcend tne issue of purport
conflict between the decree and the collective bargaining 
agreements. They recognize that in making tneir Droad 0au= 

challenge they may oe acting inconsistently with 
interests of some of the persons whom they represent in the 
collective bargaining process, but joint W  that this potential

• • . the collective bargaining relationship,conflict is innerent in tne l u u
See Caoweil Co. v .. W ^ ^ n ^ d d i r i ^ t u n . i t ^ a n i g a t i o n .

420 U.S. 50 (1975). Since the anions object to tne claimed m
, decree and the promotional seniorityconsistency between the aecree anu f

provisions of their contracts, they have standing to assert all 

grounds of invalidity of the decree which would result in the
10



elimination of that conflict. Moreover they are appropriate 
representatives of their members within the standing test of 
c<.~. n „ h  v. Morton. 405 U.S. 727 (1972). Thus we will con-

. f statutory and constitutional challenges,s icier eacn or tnerr staiutui^
ant-rv of the decree was an abuse as well as the contention that entry

of the district court's discretion.
A. The Consent Decree and Third Party Interests 
The unions contended in the district court, and contend 

somewhat less vigorously here, that it was improper in a Consent 

Decree to award relief affecting third party rights. That 
objection is meritless. To the extent that third party rights 
in which the unions are interested have been affected, they were 
allowed to intervene and be heard hr this case. They do not 
dispute the factual predicate of the decree, the prior patterns 

and practices of discrimination. If this were a litigated 
judgment the fact that they and their members did'not cause 
the discrimination would not prevent relief affecting tnrrd 

parties. franks v. Bowman Transth-£°-,424 U.S. 747, 778
(1975). At best, in a fully litigated case, they would be 
entitled to be heard only on the appropriateness of the 
remedy. They have been heard on that aspect or the case.
Class actions frequently affect the interests of persons 
who are before the court only by virtue of the opting out

-  11 "



. • * tj Civ P 23(c) . We have approved theprovisions of Fed. K. trv. . v )

settlement of those actions even over the objection of class 
members who think additional r'elief should have been granted. E ^ . ,

V. Pittsburgh Pla t e j n a s ^ .  494 F.2d 799 (3d Cir.), 

cert, denied. 419 U.S. 900 (1974); Acs Heating & Plumbi£S. 
v. Crane Company. 453 F.2d 30 (3d Cir. 1971).
These cases hold that approval of such a settlement,

arrived at after negotiations between the defendant and the
* ,4 t i i-.a s£d. only If ths courtclass rcprcsonC3.tIvo, will -

abused its discretion in approving it. There is, of course, 
a difference between approving a settlement benefiting a 
plaintiff class whose representative negotiated it, and 
approving a settlement imposing burdens on an unrepresented 
class of defendants. The recognition of that difference 

was the very reason why in E H u a l & g o l o f f i ^ ^
.... .. V American Teleoho j ^ & J S ^ ^ E k ^ B ^ .
506 F.2d at 741-42, we held that C17A could move to intervene
as a defendant. Following intervention the unions were per-

_ mnvince the court that the relie^ mitted a full opportunity lo conv_nce
, j /-'—ot- eauired to remedy .-heAT-ST had agreed to went beyond tnat a equ
jp r u p case before us is, for all practica violation. The posture of the case o

-  12 -

—--,— -7 '■■'T'1■ r* •: mzi: *. '• VJmrt.v z. ur*: • .* ♦* ■* v



purposes, that of a fully litigated decree.
B. The § 703 Contention 

Advancing essentially-the same argument that we 

expressly rejected in United States v. Inc'1 .Union .of 

Elevator Const.. 533 F.2d 1012, 1019 (3d Cir. 1976), the 
intervening defendants urge that §s 703(a), 703(h) and 703(j) 

of Title VII, 42 U.S.C. §5 2000e-2(a),(h),(j), prohibit the 
district court from providing for an affirmative action plan 
containing interim targets and goals, and prohibit an affirma­
tive action override. As we noted in Elevator Constructors, 
that argument is foreclosed by j ^ o h s j J ^ owTian Transp. Co.., 
supra, 424 U.S. at 757-62. Even the Justices who wrote separately 

in Franks acknowledged that 5 703 is not a statutory limitation 
upon the remedial authority conferred on the district courts by

5 706(g), 42 U.S.C. § 2000s-5(g).
C. The § 706(g) Contentions ' •

The intervening defendants jaiso urge several separate 
challenges to the decree, based on their interpretation of i 706(g). 

The first of these is that the section prohibits quota remedies, 

and that the interim targets and goals of the Consent Decree 
amount to such a remedy. That challenge is also foreclosed 
by Elevator Constructors, supra, and we will not repeat the 

analysis of the legislative history of the 1972 amendments

13



3
to Title VII upon which w« « U « d  in rejecting it.

The unions contend that Elevator Constructors is ars-
• u vt fi,,f it d<d not deal with competitive senioritytin^uishable in that n  u-u°  ̂- . 

out only with new hires. In one sense that is true, for the
case dealt with a remedy in an industry where employers relied
upon a hiring hall and a transitory work force. But the blunt
fact is that the union membership quota remedy we approved in
r1o„.for Constructors did involve competitive seniority with

respect to referrals from a hiring hall. 53S,F.2d at 1017-18.
More significant than our decision in the hiring hall context,

however, is the Supreme Court's holding in Tranks v f B.q g aa
TransO, Co., suora, Chat- a change in competitive seniority rs

, , s , Tjr, orP not free to reconsidera permissible § 706(g) remedy. We are not
. r „ _ . ™  wa do not think if is appropriatelythe issue. Even rr we

a ■ this case since the decree actually preserves presented rn thrs case, oiul - . .,
- • i. _ ond only - modiries tiVislayoff and rehire competitive senro

method of selection for promotion W  transfer. It affects 
cot all seniority rights, but only some. And among two equally 
basically qualified under-represented group applicants, for 
example, the seniority provisions would still operate, even with

respect to promotion and transzer.
3 538 F.2d 1012, 1019-20

14



The unions’ najor challenge Co the decree, however, 
is that in all our prior Title VII remedy cases, and in those 

in the Supreme Court as well,'the remedy provided relief only 
in favor of identifiable victims of specific past discrimination. 

They contend that § 706(g) proscribes any decree, even in a 
class action, which would permit relief to a minority group

member who could not so identify himself.
The intervenor defendants misread our prior authority. 

Nothing in the decree which we approved in Elevators Constructors 

limited its applicability to blacks who had applied and been 
rejected for membership in the union. The decree ran to the 
benefit of the class of persons found to have been underutilized 

by virtue of a discriminatory pattern or practice. Moreover, 
the contention ignores the fact that in this case the Unit 
States sued to enforce Executive Order No. 11246.. _ In Contractors 
Ass'n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cix. 
1971), we held that the Executive 6rder was a valid effort by 
the government to assure utilization of all segments of society 
in the available labor pool for government contractors, entirely 

apart from Title VII. Certainly that broader governmental 
interest is sufficient in itself to justify relief directed at

15



classes rather than individual victims of d i s c r e t i o n .  It 
is undisputed that the Bell System is a major governmental

contractor. -
W e could rest on Flavor or Constructors and Contractors.

_ i ] a n a ■ni'ccscsnts in this Circuit. How of Eastern ?a. as conuroxlxng preceaen
. _p Seens Hkely that review will be sought in the ever, since il seens — ^ J

• ,-ur we discuss the merits ofSupreme Court it is appropriate that we ai
the unions' contention that 5 706(g) proscribes class relief 
to classes which may contain persons who are not identifiable

victims of specific discrimination..
Befofe doing so, we note that even if we were to

accept the unions' position on § 706(g), 1:his decr3e v'OUld 
have a large scope of valid operation. The chief charge 
is that for years Bell System hiring practices steered 
certain classes of persons into certain departments. Any 
member of the affected class who became a Bell System employee 

during the time the practices operated w'as affected by them, 
at least to the extent that he or she was not informed that 
emoloyment opportunities might exist in other departments, 
we do not think that Congress, in enacting Title VII, intended 

that § 706(g) remedies be available only to those .uiowl 
enough and militant enough to have demanded and been refused

- 16 -

„ . ’ T " y  H ... c • w . 1 s .  .
- w _ * r ££. a... 7 .. t  V *



what was not in fact available. All who became employees 
while the Challenged employment practices operated were 
individual victims of the practice. Thus the unions' 
objection only'goes to the possibility that some minority 
group members,hired after the offending practices ceased, 
might be able to take advantage of the affirmative action 
override. Ho record was made in the district court, by the 
intervening defendants or anyone else, to establrsh whetner 
there is a significant number of such parsons. Recognizing 
that there are thousands of class members who could validly 
be protected, even on the unions' construction of § 705(g), 
we would find it extremely difficult to set aside the decree 
in the absence of such a record. The district court in framing 
a remedy could certainly balance the possibility that some 
recent hires who were not affected by the offending prior 
practices might be advantaged against the practicality that 
the decree had to be simple enoughvin operation to achieve its 

main purpose. Thus, we would not reverse even if we agreed 
with the intervening defendants', interpretation of § 706(g).

That interpretation rests upon the last sentence of

that subsection:

17



,l0 order of the court shell require the admission 
reinstatement of an individual as a member o.

"union or the hiring, reinstatement, or pro- 
n H n . Q C an individual as an employee, or the 

oav^ent to hLm of any bade pay, if such individual 
was11 refused admission, suspended, or expelled,jr 
was refused employment or advancemen dis_
pended or discharged for_any re,sson sex>
or National % £ £ T  £  vSlation o l  section 2000.- 
3(a) of this title.

The unions urge that any relief going beyond class members 
who can show that they, rather than the class to which they
belong,have been discriminated against is proscribed.

must be'read in light The last sentence an 3 706(gj muse u
r ,.,,p rest of the section. That of the settled construction 01- 1

settled construction is that once a Pri,a facie showing is 
made that an employer has engaged in a practice w m e n  violates

Title VII,the burden shifts to it to^prove that there is a
t i--nn The last sentence of § 706(g) benign justification or explanation.

snysVecisely that. Obviously, an employer can.meet an individual

V • „ rhar although that individual was a member charge by showing that aitnou0a
_ _ _ -t-Vvip'f or a drunk.,. , pices he was also a ttnsi.,of the disadvantaged cia^s nc

, ' e qiirh a reason denied employmentor an incompetent, and was for suen a
— ■----7 . T.,rM Union of Elevator Const., 538Unitea States v. pg-g) see pranks v. Bowman
F .2d 1012, 1017 & n.8 (3a Cir 19• •> • -gj Albemarle Paper to.

< « , . . .
Green, 441 U.S. 792, 302 (1973).

18



or promotion. But the sentence does not speak at all to the 
showing that must be made by individual suitors, or class 
representatives on behalf of elass members, or the EEOC on 
behalf of class members.' The sentence merely preserves the 
employer's defense that the non-hire, discharge, or non-promotion 

.as for a cause other than discrimination. Nothing in the Consent 
Decree prevents AT6cT from asserting that defense with respect 
to individual applicants for promotion, and it is difficult to

see what interest the unions have in it.
The sparse legislative history available on the bills 

which became Title VII confirm our interpretation of the sentence.-
In H.R. 7152,what is now § 706(g) appeared as § 707(e). A section-

- * -i r-i T4 t? No 914. 88th Cong. 1stby-section analyses contained _n H.R. x P*

Sess. (1964) , states of the latter.
"bio order of the court m a y _ ^ ’oire_tjge admission 

Fii^Ttemant of an individual as a memoer 
of the union or the hiring, reinstatement, o.

was
refused admission, suspended, or separated,^or 
^TTiflised employment or advancement^., or was 
suspended or discharged Joj ^EO ,
Legislative History of Titles Vil and ^
Civil'Rights Act of 1964 (hereinafter 
to as "Legislative History ), P* 20-9 ( •?
supplied).

- 19 -

.  k k  T *  J
»-■  err. :• ! t



"For cause H.R. 7152h dearly refers to an employer's derense. 

went directly to the floor of.the Senate, where major changes 
were made. Hone, however, substantively affected § 707(e) 
except that sex was included among the proscribed bases of 
discrimination, and the section was renumbered to § 706(g). 
Confirming the Senate's understanding that the last sentence 
merely preserved the employers' defense is the comparative 
analysis of the Senate and House bills printed in the Con-

gressional Record-on June 9, 1964: 
House Version

11. No order of court shall re­
quire the admission or reinstate­
ment of an individual_to a labor 
organization or the hiring, ̂ t a in 
statement, promotion of an indiv­
idual by an employer if the laoor 
organization or employer took 
action for any reason other than 
discrimination on account of race: 
color, religion, or national 
origin.

Senate Version
11. Same, except "sex" was 

included. (This had oeen unin­
tentionally omitted in House biu. 
Also, court action in this regar 
was prohibited where an indiv­
idual opposed, made a charge, 
testified, assisted,^or parti­
cipated in an. investigation, 
hearing or proceeding of an un­
lawful employment practice o- ai 
employer, employment agency, or 
labor organization.

Legislative History at 3027.
The intervening defendants rely on what they consider

to be contrary indications in an explanatory memorandum on 
§ 707(e) by Senators Clark and Case. Legislative History at 
3044. He place no reliance on this ambiguous reference, since 

the section-by-section analysis quoted above is a o,ore authoritativ
n n



indication of congressional understanding. We also note that in 
considering the 1972 amendments to Title VII, Congress rejected 

the Ervin no-quota amendment to the 1972 Act. It did so af^er 
.specific discussion ,of United States v. Ironworkers Local .86, 443 

F.2d 544 (9th Cir.), cert, denied. 404 U.S. 9S4 (1971). T'ne 
"ironworkers remedy, like that in our Elevator Constructors case, * *
supra, included a new membership provision not limited to iden­
tifiable victims of specific past discrimination. As we pointed 
out in the latter case, the solid rejection of the Ervin amendment 
confirmed the prior understanding by Congress that an affirmative 
action quota remedy in favor of a class is permissible. 538 F.2d

* at 1019-20. We are reinforced in our conclusion that class relief, 
without regard to the victim status of every class member, is 
appropriate by the firm consensus in the courts of appeals upon 
the lawfulness of class-based hiring preferences and membership

5
goals.

5 £ e. United States v. Elevator Constructors^Local 5, 
supra; Rios'v.’stearafitters Local 638, 5 0 1 FM2d 622 (2d Cir 97’); 
United States v. Hood Lathers Local 46, 471 r.2d 408 (2d Car ), 
cert, denied, 412 U.'S. 939 (1973); United States v. N.L Indus ;nc., 
470_F.2dl54 (8th Cir. 1973); NAACP v. Eeec.ner, 50a F.2d 1017 (1st 
Cir 1974) cert, denied, 421 U.S. 910 (1975); United States v. 13EW 
Local 38, 428 F.2d 144 (6th Cir.), c^._d£niedi 400 U.S. 943(1970); 
Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cer£. 419 U.S
895 (1974); Southern Illinois Builders Ass n v. Ogilvie 471 F.- 
(7th Cir. 1972); United States v. Ironworkers „ocal 86, >4. F._ 5
qth Cix 1 cert denied, 404 U.S. 984 (1971); Patterson v. American 

Tobacc^Coh^ 4 3 1 ^ 5 7  (4th Cir.), cert, denied, 45 U.S.L.W. 3350
(U.S. Nov. 2, 1976)(Nos. 76-46, 76-56). Cf. Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 414 n.8 (1976):

1St®
1

21 -



r.je find meritless the proposal that we distinguish, 

for purposes of the availability of class action relief, between 
nev7 hires and those already employed. Noth m g  m  the language 
of the last sentence of § 706(g), upon which the intervening 
defendants base their individualized remedies argument, suggests 
such a distinction. Class action relief is equally available 
to both new hires and employees. The only distinction between 
the two classes is that in considering a seniority or promotion 
remedy, a court of equity must take into account expectations 
of other incumbent employees. But those incumbent employees 
will be affected identically by a remedy in favor of identifiable 
victims of specific discrimination as by a remedy which includes 

employee members not so identifiable. The impact on meumoent

5 (continued) , .The petitioners also contend that no packpay can be
awarded to those unnamed parties in the plaintifr class
who have not themselves filed charges with the ^EOC We
reject this contention. The Courts of Appeals^that have
confronted the issue are unanimous in_recognizing that
backpay may be awarded on a class basis under Tiuie y5 * * * * * 11 
without exhaustion of administrative procedures by the _ 
unnamed class members. See, e.g., Rosen ,v. Public Seuice 
Electric 0 Gas Co., 409 F.2d 775, 780 (CA 3 1969 , and 
477 F.2d 90, 95-96 (CA3 1973); Robinson v. Lorillard Corp. 
444 F 2d 791, 802 (CA 4 1971); United States v. Georgia 
Power * Co., 474 F.2d 906, 919-921 (CA5 1973); Head v 
Timken Roller Bearing Co., supra, at 876; Bowe v. Colgate- 
Palmolive Co., 416 F.2d 711, 719-721 (CA7 1969); United 
States v. N.L. Industries, Inc. 479 *.2d 354,^378-379 
(CAS 1973). The Congress plainly ratified this construc­
tion of the Act in the course of enacting the Equal employ 
ment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103



employees goes to the scope rather than the availability of
6

class relief.
Summarizing, none of the interveners’interpretations 

of § 706(g), urged upon us as prohibitions against the inter­

mediate targets, the employment goals, or the affirmative

action override, persuade us.
D. Abuse of Discretion

We turn then to the contention that even assuming 
the existence of statutory authority,the district court abused 
its discretion in refusing to grant the unions' motions to modify 
the Consent Decree, and in entering the Supplemental Order. As 
with equitable remedies generally, the scope of relief is a matter 
entrusted in the first instance to the trial court. As tua Supreme

Court has made plain, however
" that discretion imports not the courts
■‘"inclination, but . . . its judgment; an.d its
judgment is to be guided by sound legal prrn- 
cioles Discretion is yes ted.not for pur-
poses if •'limit[ing] appellate review of trial 
courts or . . invit[ing] inconsistency and
caprici * but rather to allow the most complete
achievement of the objectives o£ ™  ^
is attainable under the facts and circumstances 
of the specific case. 422 U.S at 421 Ac­
cordingly the District Court's denial o- any

~  see e.g., Ostapowiczv. Johnson, 541 F.2d 394 (3d Cir. 
1976), cert, denied, 45 U.S.L9. 3463 1974)! Com-
r ^ r t h “ HCe“ i D?2d 1029 (3d'cir. 1973) (per curiam) ( £
banc); Kirkland v. New York State Dept. of Correction tpt p ’ (tt.S .

■ O d  420, 430 (2d Cir. 1975), cert, denied, 45 U.S.L.J. 3ZA9 fu 
October 5, 1976).



form of seniority remedy must be reviewed rn 
terms of its effect on the attainment of the 
Art's obiectives under the circumstances pre­
sented by this record." Franks v, bowman Treasg, 
Co , suoL, 42^ U.S. at 770-71.

in Franks, thf Court reviewed the denial rather than the award 
of relief, but it is equally relevant to the scope of appellate 

review of the award of relief as well. As we pointed out in 
Part IV A,supra this case comes to us after actual litigation 

by the intervening defendants over Lne scope of reli 

it is closer, procedurally, to IsajSLV.,, gotten, suora, than 
to Brvan v. Pittsburgh Plate Glass Co ,̂ supra,, and noo_r .

bouse Electric Cprpu, 680 F.2d 240, 247-50 (3d Cir.
1973), in which we reviewed settlements objected to by plaintiff 
class members. But whether we apply the standard of appellate 
review for litigated Title VII cases or that for review of settle­
ments , considerable deference must be accorded the decision of

the trial judge as to remedy.
The intervening defendants ydo not dispute tha p 

hiring practices violated the law, that the makeup of the work 
force in many Bell System departments reflects the present 
effects of those past practices, or that continuance of the 
"best qualified" criterion for promotion,by rewarding experience 

in a given department,would tend to perpetuate those effects.

- 24 -

rm r c  t--: .. -



j re,.CPpt in their general attacks against Nor have they urged (e^c_p„ -
-r*-ion targets and goals) tnat -3--ting the all affirmative ^caon -ara

rv-representation in the available targets and goals to minority -ep.
-,JC force ,as'error. They do contend that other means of at­
taining those goals might have been resorted to, and might be

. preserves for the unions theequally effective. But tne decree pres .
■ ^^lectwely for such alternative mean* . opportunity to bargain collectively _ ,

_ careful consideration to all the union s The district court gave Carerui cons
objections, and struck an appropriate balance between the integrity 
o£ the collective bargaining process and the necessity for eefectiv 

relief. The affirmative action override was not applied across 
the board, but only when necessary to bring particular worm units 
into compliance. The intermediate targets and the goals remain 
subject to oeriodic review and adjustment. The decree is short
lived. It makes no intrusion- upon competitive seniority for ^

. .-e'-inres we cannot say that the layoffs or rehires. In the circumscanoes w .

court abused its discretion. 4

E. Constitutional Challenges 
Finally, the intervening defendants cnallen0

decree on the ground that any court-imposed remedy requiring a
_ cp-v race or national.i ap'f'Ttieci "’ll terms or -*■> quota, target or goal de^inec _n

-p +-Va’P fifth amendment., j „ „r(V,PcS clause of tne inuiorigin violates the due process
- 25 r

i T -rrr« r  t » V .‘S-w’wT



If. its broadest reach, this argument is that any class action 
remedy for discrimination against minor-ities is unconstitutional, 

for any such remedy cf necessity dennes the prot-c.ed 
„c are not asked to go quite that far. The unions do not object 
to the provisions of the deer*; prohibiting employment district- 
ination in the'future. Their objection is to the provisions 
for overcoming the effects of past practices. We have rejected 
the same constitutional arguments against affirmative action

r erne dies in the past. United Spates v. i n ^ ----------------

Const., supra, 538 F.2d at 1018; Erie Human Relations Coma’n v ^

Tullio, supra; Contractors Ass’n qf_Eastem  Pa.-v. Secretary 
of Labor, supra, 442 F.2d at 176. See Oburn v. Shapn, 521 F.2d 
142, 149 (3d Cir. 1975)(Garth, J.). The intervening defendants would 
have us distinguish these cases because they didrot involve compet­
itive seniority, and thus did not involve contractual interests of 
other employees. We pointed out above that Elevatpr_Constractors 
did involve competitive seniority. But in any event the proposed 
distinction is unavailing. Franks v. BowmanTrang^^Co^ sugra, 
holds that the contractual interest of an employee in competitive 

seniority must yield to an appropriate Title VII remedy.

26



See 424 U.S. at 778. Federal statutory remedies need not be

color blind or sex unconscious.
He recognize that the remedy adopted by the district ,

court can operate to the disadvantage of members of groups 
which have-not previously been discriminated against compared 
to members of sex or racial groups previously subject to dis­
crimination who have not themselves been discriminated against. 

The remedy thus constitutes federal action which classifies 
by membership in a sex or racial group, and must be held invalid 
under the equal protection guarantee inherent in the due process 
clause of the Fifth Amendment unless it can be shown that the 
interest in making the classification is sufficiently great.

The standard applied by the Court in evaluating that 

interest has differed somewhat for sex as opposed to racial 
classifications. Racial classifications are subject to strict 

scrutiny: the federal "purpose or interest" must be 'both con­
stitutionally permissible and substantial,^ and the use 
classification" must be"’necessary . . to the accomplishment'
~ 7 i cn* or, strengthened by the Supreme Court'sOur conclusion is s t ^ „  o£ Will^m.sburgh,
recant decision w 4221 (U.S. March I, 1977). There,
In% V - that'racial quotas could permissibly be usee
tne ieetsia^ve^apportionment pursuant to a constl-to efiecL^^i:s .at p Fhe claims of discrimination oytutional peueral statut . , reapportionment
petitioners were unavailing where the ™ * f ^ * * *  taation. 
was designed to remedy the ef_ect j. P- 424 u>s_ at 775
See also Franks v. Bowman Transp •> - ' ^  446 F>2d 652,

United States v. Beth^ t̂ cC°r^ [ F 2d 1236,663 (2d Cir. 1971); Vogler v. McCarty, Inc.,
1238-39 (5th Cir. 1971).

27



of [Che] purpose or the safeguarding of [the] interest." In 
re Griffiths, 413 U.S. 717, 721-2 (1973)(footnotes omitted).
On the other hand, "classifications by gender must serve •

i

important governmental objectives and must be su d stantially
related to achievement of those objectives." Craig v. Boren,
45 U.S.L.W. 4057, 4059 (U.S. December 20, 1976). The present
classifications are permissible in the case of race, and are

thus permissible a fortiori with respect to sex.
federal interest in the present case is that of

remedying the effect of a particular pattern of employment
discrimination upon the balance or sex and racial groups
would otherwise have obtained -- an interest distinct from
that of seeing that each individual is not di.sadvantaged by
discrimination, since it centers on the distribution of benefits
among groups. This purpose is "substantial" within the meaning

8
of In re Griffiths, supra, where the Supreme^Court said that
"a State does have a substantial interest in the qualifications
of those admitted to the practice of law . . 413 U.S. at 725.

8~The Court said in footnote 9 of its opinion that: '̂ The 
state interest required has been characterized as overriding, 
[McLaughlin v. Florida, 379 U.S. 1S4, 196 (1964)]; Loving Y- 
Virginia, 388 U.S. 1, 11 (1967); 'compelling,' Graham v. Richardson^ 
[403 U.S. 365 , 375 (1971) ];' important, 1 Dunn v .. B_l_umstein, 405 U.S. 
330, 343 (1972), or "substantial," ibid. We^attribute no particular 
significance to these variations in diction.

28



The governmental interest in having all groups fairly repre­
sented in employment is^at least as substantial, and since that 

interest is substantial the adverse effect on third parties 
is not a constitutional^ violation. Moreover, the same exclusic 
of such members could conceivably result from remedies afforded 
to individual victims of discrimination. This remedy operates 
no differently. Furthermore, as we noted above, the affrrmativ 
action override is necessary to the practical accomplishment of 

the remedial goal.
It will doubtless be possible to detail, and thus to 

employ remedies other than quotas, for many individual instance 
of discrimination. But it is also true that much discriminatic 
cannot be proved through evidence of individual cases, even tnc 
a prima facie case can be made out on the basis of statrstrcal 
other evidence. It will, for example, be nearly impossible to 
show that individuals were deterred from applying for hiring o: 
promotion, or from attempting to meet the.prerequisites for 
advancement, because of their well-founded belief that a partic 
employer would not deal fairly with members of their particular 
sex or racial group. Moreover, even apart from problems of

9 See findings in House Judiciary Committee Report on
• i j < — 1? ■p n p T e^islative History of TitleH.R. 7152, reprinted m  E.E.O.C., he ^ia

VII and XI of Civil Rights Act of 19o4 at 2018.
- 29 -

. * -  'f t / *  • ■



proof, goals and quotas are necessary to counteract the effects
of discriminatory practices because some victims or discriminate:

no longer seek the job benefits which they were discriminatorily
denied. '.In such cases, quotas are needed to counteract the erfec
of discriminatory practices upon the balance or sex and racral

groups that would otherwise have obtained.
The use of employment goals and quotas admittedly involve

tensions with the equal protection guarantee inherent in the due 
process clause of the Fifth Amendment. But the remedy granted 
by the district court is permissible because it seems reasonably 
calculated to counteract the detrimental effects a particular, 

identifiable pattern of discriminatron has had upon.t..- P ?
Of achieving a society in which the distribution of jobs to 
basically qualified members of sex and racial groups is not

affected by discr initiation.
The judgment appealed from will be affrrned.

TO THE CLERK OF THE COURT
please file the foregoing opinion,

Circuit Judge

30