United Steel Workers of America v. Webber Brief Amici Curiae
Public Court Documents
January 31, 1979
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Brief Collection, LDF Court Filings. United Steel Workers of America v. Webber Brief Amici Curiae, 1979. 9ed7bae8-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/25bfbe84-bb1c-4ecd-a859-662a61aaf1df/united-steel-workers-of-america-v-webber-brief-amici-curiae. Accessed June 15, 2025.
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IN THE
GImtrf of % States
October Term, 1978
No. 78-432
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,
Petitioner,
v.
BRIAN F. WEBER, e t a l .
No. 78-435
KAISER ALUMINUM & CHEMICAL CORPORATION,
Petitioner,
v.
BRIAN F. WEBER, e t a l .
No. 78-436
UNITED STATES OF AMERICA
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioners,v.
BRIAN F. WEBER, e t a l .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., NATIONAL URBAN LEAGUE
AND HOWARD UNIVERSITY AS AMICI CURIAE
YERNON E. JORDAN, JR.
500 E. 62nd Street
New York, New York 10021
WILEY A. BRANTON
THEODORE A. MILES
Howard University Law School
2935 Upton St., N.W.
Washington, D.C. 20005
January 1979.
JACK GREENBERG
JAMES M. NABRIT, I II
ERIC SCHNAPPER
LOWELL JOHNSTON
PATRICK O. PATTERSON
KRISTINE S. KNAPLUND
CLYDE E. MURPHY
10 Columbus Circle
Suite 2030
New York, New York 10019
BARRY L. GOLDSTEIN
806 15th St., N.W.
Suite 940
Washington, D.C. 20005
Attorneys for Amici Curiae
INDEX
Page
Table of Authorit ies ...................... iii
1Interest of Amici ........................ .
Summary of Argument ........................ 6
ARGUMENT
I. Title VII Permits Employers and
Unions to Take Voluntary Race-
Conscious Affirmative Action .... 9
A. Legislative History: 1964 .... 9
B. Judicial and Executive
Interpretation: 1964-1972 .... 18
C. Legislative History: 1972 .... 21
D. EEOC Guidelines on Affirmative
Action ...................... 24
II. A Standard Permitting Employers
and Unions to Take Race-Conscious
Affirmative Action When They Have
a Reasonable Basis To Do So, Is
Consistent with Title VII and the
Constitution..................... 28
A. An Employer or Union May
Take Race-Conscious Affirma
tive Action Where It Acts Upon
a Reasonable Basis that such
Action Is Appropriate ....... 28
- 1
Page
3. An Action to Enforce the Fifth
Circuit's Construction of
Title VII Would Not Present
a "Case or Controversy" ....... 41
C. The Fifth Circuit Has Given
Title VII an Unconstitutional
Construction .................. 49
III. This Affirmative Action Plan Is
Permissible Under Title VII....... 56
A. The Plan Was Properly
Instituted ................... 56
B. The Plan Was Properly
Designed ............. 107
CONCLUSION .................................. 122
ii
TABLE OF AUTHORITIES
Cases:
PAGE
Adams v. Richardson, 351 F.Supp.
636 (D.C. 1972) ................. 95
Albemarle Paper Company v. Moody,
422 U.S.C. 405 (1975) ........... Passim
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ........... 12,30
Associated General Contractors of
Mass., Inc. v. Altshuler,
361 F.Supp. 1293 (D.
Mass.), aff'd■, 490 F .2d 9
(1st Cir.)., cert denied,
416 U.S 957 (1974) ............. 107,115
Baker v. Carr, 369 U.S 186
(1962) .......................... 43-44
Barlow v. Collins, 397 U.S.
159 (1970) ..................... 44
Beauharnais v. Illinois, 343 U.S.
250 (1952) .................. . . .. 62
Bolling v. Sharpe, 347 U.S. 497
(1954) .......................... 50
Boston Chapter, NAACP, Inc. v.
Beecher, 504 F.2d 1017 (1st
Cir.), cert denied, 421 U.S.
910 (1975)
- iii -
23,114
TABLE OF AUTHORITIES
PAGE
Bridgeport Guardians, Inc. v.
Bridgeport Civil Service
Commission, 482 F.2d 1333
(2nd Cir. 1973), cert denied,
421 U.S. 991 (1975) ............. 115
Brown v. Board of Education, 347
U.S. 438 (1954) ................. 93
Burrell v. Kaiser Aluminum & Chemical
Corp. , Civ. Action No. 67-86
(M.D. La. ) ...................... 33
Burrell v. Kaiser Aluminum &
Chemical Corp., 408 F.2d
339 (5th Cir. 1969), re'g, 287
F. 2d 289 (E.D. La. 1968) ......... 33
Carey v. Piphus, 55 L.Ed.2d 252
(1978) .......................... 49
Castaneda v. Partida, 430 U.S. 482
(1977) .......................... 76
Chandler v. Roudebush, 425 U.S.
840 (1976) ...................... 34
Chicago, etc. R.R. v. Wellman, 143
U.S. 339 (1892) ................. 47
Commonwealth of Pennsylvania v.
Local 542, Operating Engineers,
Civil Action No. 71-2698, (E.D.
Penn. Nov. 30, 1978) ............ 89
IV
TABLE OF AUTHORITIES
Contractors Association v. Secretary
of Labor, 442 F.2d 159 (3rd Cir.)
cert denied, 404 U.S. 854
(1971) .......................... 21,107
Crockett v. Green, 534 F.2d 715
(7th Cir. 1976) ................. 115
Dothard v. Rawlinson, 433 U.S. 321
(1977) .......................... 36,64,80,83
EEOC v. A.T.& T.’ Co., 556 F.2d
167 (3rd Cir.), cert, denied,
57 L.ed 2d 1161 ( 1978) .......... 115
EEOC v. Detroit Edison Co., 515
F.2d 301 (6th Cir.), vac and .... 49
rem on other grounds, 431
U.S. 951 ( 1977) ................. 115
Emporium Capwell Co. v. Western
Addition Community Organi
zation, 420 U.S. 50 (1975) ...... 120
Erie Human Relations Commission
v. Tullio, 493 F .2d 371
(3rd Cir. 1974) ................. 115
Franks v. Bowman Transportation
Co., 747 (1976) ................. 2,17,49,120
Furnco Construction Corp. v.
Waters, 57 L.Ed 2d 957 (1978).... 81
PAGE
v -
TABLE OF AUTHORITIES
PAGE
Gaston County v. United States,
395 U.S 285 (1969) .............. 54-55
General Electric Co. v. Gilbert,
429 U.S 125 (1976) .............. 26
Griggs v. Duke Power Company, 401
U.S. 424 (1971) ................. Passim
Hazelwood School District v. United
States, 433 U.S. 299
(1977) ..................... ..... 36,65,76
Hernandez v. Texas, 347 U.S 475
(1954) .......................... 50
Hunter v. Erickson, 393 U.S 385
(1969) .......................... 50-51
International Brotherhood of
Teamsters v. United States,
431 U.S. 324 (1977) . ............. 36,48-49,65
James v. Stockham Valves and
Fittings Co., 559 F.2d
310 (5th Cir.), cert denied,
434 U.S. 1034 (1978) ........... 99
Keyes v. School District No. 1,
413 U.S 189 (973) ............... 62
Local 53, Asbestos Workers v.
Vogler, 407 F.2d 1047
(5th Cir. 1969) .................. 18
vi
TABLE OF AUTHORITIES
Lord v. Veazie, 8 How. 251
(1850) .......................... 47
Marchetti v. United States, 390
U.S. 39 (1968) .................. 48
McDaniel v. Barresi, 402 U.S.
39 (1971) .................. 32
McDonnell Douglas Corp. v. Green,
411 U.S. 792 ( 1973) ............. 11,34
Moore v. East Cleveland, 431 U.S.
494 ( 1977) ...................... 62
Moose Lodge No. 197 v. Irvis,
407 U.S. 163 (1972) ............. 54
Morrow v. Crisler, 491 F.2d 1053
(5th Cir.) (en banc), cert denied,
419 U.S 895 ( 1974) .............. 115
N.A.A.C.P v. Allen, 493 F.2d 614 (5th
Cir. 1974) ...................... 115
N.A.A.C.P. v. Button, 371 U.S 415
(1963) .......................... 55
National League of Cities v.
Usery, 426 U.S 833 (1976) ....... 55
NLRB v. Jones & Laughlin Steel Corp.,
301 U.S 1 ( 1937) ................ 119
PAGE
- vii -
TABLE OF AUTHORITIES
North Carolina State Board of
Education v. Swann, 402 U.S. 43
(1971) .......................... 49,51
Parson v. Kaiser Aluminum & Chemical
Corp., 575 F.2d 1374 (5th Cir.
1978) ........................... 32,71,79
Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 (5th Cir. 1974 ) --- 99
Railway Mail Association v. Corse,
326 U.S 88 (1945) ............. 51
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) .......... 115
Robinson v. Union Carbide Corp.,
538 F.2d 652 (5th Cir. 1976) .... 100
Rowe v. General Motors Corp., 457
F.2d 348 (5th Cir. 1972) ........ 81
Roe v. Wade, 410 U.S. 113 (1973) ..... 62
Sierra Club v. Morton, 405
U.S. 727 (1972) ................ 44
PAGE
- viii -
TABLE OF AUTHORITIES
PAGE
Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S.
26 ( 1976) ....................... 45
Sims v. Local 65 Sheet Metal Workers,
489 F.2d 1023 (6th Cir. 1973) --- 15
Skidmore v. Swift & Co,, 323 U.S. 26
134 (1944) ......................
Southern Illinois Builders Association
v. Ogilvie, 471 F,2d 680 (7th
Cir. 972) ....................... 21,115
Stevenson v. International Paper Co.,
516 F.2d 103 (5th Cir. 1975) .... 100
Swift & Co. v. Hocking Valley R.R.
Co., 243 U.S 281 (1917) ........ 46
United Jewish Organization v.
Carey, 430 U.S. 144 ( 1977)....... 105
United States v. Allegheny-Ludlum
Industries, Inc., 517 F.2d
826 (5th Cir.), cert. denied,
425 U.S 944 (1976) .............. 116
United States v. Allegheny-
Ludlum Industries, Inc.,
63 F.R.D. 1 (N.D. Ala. 1973) .... 117
United States v. Bethlehem Steel
Corp., 446 F .2d 652 (2nd Cir.),
(1971) .......................... 100
United States v. Carolene
Products, 304 U.S 144 (1938) ......... 62
IX
TABLE OF AUTHORITIES
PAGE
United States v. City of Chicago,
549 F.2d 415 (7th Cir.),
cert, denied, 434 U.S 875
(1878) .......................... 115
United States v. Ironworkers Local 86,
315 F.Supp. 1202 (W.D. Wash. 1979),
aff*d, 443 F .2d 544 (9th Cir.).
cert. denied, 404 U.S 981 (1971).. 19
United States v. Johnson, 319 U.S.
302 (1943) .......... 1 .......... 47-48
United States v. Local 38, IBEW, 428
F.2d 144 (6th Cir.) cert denied
400 U.S. 943 ( 1970) ............. 18
United States v. Local 212 IBEW, 472
F. 2d 634 (6th Cir. 1973) ........ 23,115
United States v. Masonry Contractors
Association, 497 F.2d 871 (6th
Cir. 1974) ............. 115
United States v. N.L. Industries, Inc.,
479 F.2d 354 (8th Cir. 1973) .... 12,115
United States v. Sheet Metal Workers
Local 36, 416 F.2d 123 (8th
Cir. 1969) ...................... 19
United States v. Wood Lathers Local
46, 471 F.2d 408 (2d Cir. ),
cert, denied, 412 U.S 939
(1973) ...................... H 5
United States Steelworkers of
America v. American Mfg. Co.,
363 U.S 564 (1960) .............. 119
x
TABLE OF AUTHORITIES
Village of Arlington Heights v.
Metropolitan Housing Develop
ment Corp., 429 U.S 252
(1972) .............. 88
Washington v. Davis, 426 U.S 229
(1976) ......................... 88
Watkins v. Scott Paper Co., 530
F.2d 1159 (5th Cir 1976), cert.
denied, 429 U.S 861 ( 1976) ...... 72
PAGE
Warth v. Seldin, 422 U.S 490
(1975) .......................... 45
Constitutional Provisions, Statutes,
Executive Orders and Regulations:
United States Constitution, Fifth
Amendment ....................... 51
United States Constitution,
Fourteenth Amendment ............ 51
Equal Employment Opportunity Act of
1972, Pub. L. No. 92-261 ........ 21
Fugitive Slave Act, 11 Stat.
462, §7 ......................... 52
42 U.S.C. §2Q00e, et seq., Title
VII of the Civil Rights
of 1964 (as amended 1972 ) ...... 13-15
La. Rev. Stat. Ann. 51996(c) ......... 56
xi
TABLE OF AUTHORITIES
Executive Order No. 10,925, 3 C.F.R.
PAGE
443 (1959-63 Comp.) ............. 106
Executive Order No. 11,246,30 Fed.
Reg. 12319, as amended, 32
Fed. Reg. 14303.................. Passim
41 C.F.R. 60-2 (Revised Order
No. 4) .......................... 104
Equal Employment Opportunity
Commission Uniform Guidelines on
Employee Selection Procedures,
43 Fed. Reg. 38290, 29 C.F.R.
Part 1607 (1978) ................. 28,84-86
Equal Employment Opportunity Com
mission Guidelines on Affirmative
Action, 44 Fed. Reg. 4422,
29 C.F.R. Part 1608 (1978) ....... Passim
Equal Employment Opportunity
Coordinating Council, Policy
Statement on Affirmative Action
Programs for State and Local
Governments, 41 F.R. 38
81976) .......................... 28
Executive Decisions and Opinions:
EEOC Decision 74-196,10 FEP Cases
269 (April 2, 1974) ............. 27
EEOC Decision 75-268,10 FEP Cases 1502,
(May 30, 1975) ....... 28
Xll
TABLE OF AUTHORITIES
Office of the Solicitor, U.S. Department
of Labor, Legal Memorandum, in Hearings
on The Philadelphia Plan and S.931 Before
the Subcomm. on Separation of Powers of
the Senate Comm, on the Judiciary, 91st
Cong., 1st Sess. 225 (1969) ..... 20
42 Opinion of Attorney General
No. 37 (Sept. 22, 1969) ......... 20
Legislative History:
110 Cong. Rec. 6549 (1964) ............ 16
110 Cong. Rec. 7214 (1964) ............ 14,16
110 Cong. Rec. 9881 (1964) ............ 14-16
110 Cong. Rec. 9882 (1964) ............ 15-16
110 Cong. Rec. 12723 ( 1964) .......... 15
118 Cong. Rec. 3460-63 ( 1972) ........ 22
Hearings on Civil Rights Before
Subcommittee No. 5 of the
House Committee on the
Judiciary, 88th Cong.
1st Sess. 2300-03 (1963) ________ 10
Hearings on Equal Empoloyment
Opportunity Before the
General Subcommittee on
Labor of the House Com
mittee on Education and
Labor 88th Cong. 1st
Sess. 3 (1963) .................. 9
- xiii -
PAGE
TABLE OF AUTHORITIES
Hearings on Equal Empoloyment Oppor
tunity Before the Subcomm. on
Employment and Manpower of the
Senate Comm, on Labor and Public
Welfare, 88th Cong., 1st Sess.
116-17, 321-29, 426-30, 449-52,
PAGE
492-94 (1963) ................... 10
H.R. Rep. 914, 88th Cong. 1st
Sess............................. 22
H.R. Rep. No. 92-238, 92d Cong.
1st Sess. 8 (1971) .............. 22
S. Rep. No 92-415, 92d Cong., 1st
Sess. 5 (1971) .................. 9-12
Other Authorities:
Adminstrative Office of the United States
States Courts, 1976 Annual Report
of the Director .............. . 34
Administrative Office of the United States
Courts, 1977 Annual Report of
the Director ................ . 35
Administrative Office of the United
States Courts, 1978 Annual Report
of the Director ................. 35
Chayes, the Role of the Judge in Public
Law Litigation, 89 Harv. La. Rev.
1281 (1976) ............. ........ 61
Comment, The Philadelphia Plan: A
Study in the Dynamics of
Executive Power, 39 U. Chi.
L. Rev. 732 ( 1972) .............. 20,22-23,41
- xiv
TABLE OF AUTHORITIES
Equal Employment Opportunity Com
mission Legislative History of
Titles VII and XI of Civil Rights
Act of 1964 ..................... 11,17
Committee on Government Contracts,
Patterns for Progress: Final
Report to President Eisenhower
(I960) .................. 106
Finkelstein, The Applicatin of Statisti
cal Decision Theory to the Jury
Discrimination Cases, 80 Harv.
L. Rev. 338 (1966) ............... 76
Gould, Black Workers in White Unions,
(1977) ..................... 91
Hall, Black Vocational, Technical and
Industrial Arts Education
(American Technical Society
1973) ................................ 93
Hill, Black Labor and the American Legal
System: Race, Work and the Law 91
'(1977) ...................... ...
Jones, The Bugaboo of Employment
Quotas, 1970 Wise. L. Rev.
341 ................ ............. 107
Karson and Rodosh, The American Federa
tion of Labor and the Negro Worker,
1894—1949", in The Negro and the
American Labor Movement (ed.
Jacobson, Anchor 1968) .. .............. 96
PAGE
xv -
TABLE OF AUTHORITIES
Marshall, The Negro and Organized
' Labor, (1965) ................... 91,94
PAGE
Marshall, "The Negro in Southern Unions,"
in The Negro and the American Labor
Movement (ed. Jacobsen, Anchor
1968) ........................... 96,99
Marshall and Briggs, the Negro and
Apprenticeship (1967) ......... 91,98,102-103
McPherson., The Political History of
the United States of America
During the Period of Recon
struction (reprinted 1969) ....... 93
Mosteller, Rourke and Thomas,
Probability With Statistical
Applications, (1970) ............ 76
Myrdal, An American Dilemma, (Harper
& Row, ed., 1962) .............. 91,96-97,100
N.A.A.G.P. Legal Defense And Educa
tional Fund, Inc., Brief as
Amicus Curiae, No. 76-811 ....... 52
Northrup, Organized Labor and the
Negro (1944) ................... 91,96-97,100
Sovern, Legal Restraints on Racial
Discrimination in Employment
(1966) 7. ........................ 9,106
Spero and Harris, The Black Worker
(Atheneum, ed., 1968) ........... 91-92
xvi
TABLE OF AUTHORITIES
*PAGE
State Advisory Committee, U.S. Com
mission on Civil Rights,
50 States Report (1961) ......... 95
tenBroek, Equal Under Law, (1951) .... 52
United States Commission on Civil
Rights, Employment (1961) ........ 94
United States Commission on Civil
Rights, The Challenge Ahead
(1976) .......................... 98,103
United States Dept, of Commerce,
Bureau of the Census, 1970 Census
of Population; 1970, Vol. 1,
Characteristics of the Popula
tion, Part 20- Louisiana
(1973)........................... 67-68,72-74
Weaver, Negro Labor, A National
Problem, (1964) ............. 91,93-94,99,100
Weinstein, 1 Evidence ................ 61
Wright and Graham, Federal Practice
and Procedure, §5102 (1977) ..... 61
xvi 1
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. 78-432
UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC,
Petitioner,
v.
BRIAN F. WEBER, et al.
No. 78-435
KAISER ALUMINUM & CHEMICAL CORPORATION,
Petitioner,
v.
BRIAN F. WEBER,
No. 78-436
UNITED STATES OF AMERICA
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioners,
v.
BRIAN F. WEBER, et al.
On Writ of Certiorari to the United
States Court of Appeals for the
Fifth Circuit
BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE
AND EDUCATIONAL FUND, INC., NATIONAL
URBAN LEAGUE AND HOWARD UNIVERSITY
AS AMICI CURIAE
Interest of Amici
The N.A.A.C.P. Legal Defense and Educa
tional Fund, Inc., is a non-profit corporation
- 2 -
established under the laws of the State of New
York. It was founded to assist black persons to
secure their constitutional and statutory rights
by the prosecution of lawsuits. Its charter
declares that its purposes include rendering legal
services gratuitously to black persons suffering
injustice by reason of racial discrimination. For
many years attorneys of the Legal Defense Fund
have represented parties in litigation before this
Court and the lower courts involving a variety of
race discrimination issues regarding employment.
See, e.g., Griggs v. Duke Power Co., 401 U.S.
424 (1971); Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975); Franks v. Bowman Transportation Co.,
424 U.S. 747 ( 1976). The Legal Defense Fund
believes that its experience in such litigation
and the research it has performed will assist the
Court in this case. The parties have consented to
the filing of this brief and letters of consent
have been filed with the Clerk.
The National Urban League, Incorporated, is a
charitable and educational organization organized
as a not-for-profit corporation under the laws of
the State of New York. For more than 69 years,
- 3 -
the League and its predecessors have addressed
themselves to the problems of disadvantaged
minorities in the United States by improving the
working conditions of blacks and other minorities,
and by fostering better race relations and increas
ing understanding among all persons.
Howard University was established as a
private nonsectarian institution by Act of Cong
ress on March 2, 1867. Since its inception, the
University has grown from six departments in 1867
to its present composition of seventeen schools
and colleges. Nearly 40,000 students have receiv
ed diplomas, degrees or certificates from Howard;
of that total, well over 14,000 have received
graduate and professional degrees. Throughout
this century of growth, the unique mission of the
University has been supported in the main by
congressional appropriations. Since 1928 Howard
University, while remaining a private institution,
has received continuous annual financial support
from the federal government.— ̂ Today, the Uni-
JJ The Committee on Education commenting on the
bill to amend section 8 of an act entitled "An Act
to incorporate the Howard University..." stressed:
- 4 -
versity's land, buildings and equipment are
valued at more than 150 million dollars. Thus,
both the executive and legislative branches are
sensitive to the need to maintain Howard as an
institution in service to blacks.
_1_/ Cont ' d
Apart from the precedent established by
45 years of congressional action, the commit
tee feels that Federal aid to Howard Univer
sity is fully justified by the national
importance of the Negro problem. For many
years it has been felt that the American
people owed an obligation to the Indian,
whom they dispossessed of his land, and
annual appropriations of sizable amounts
have been passed by Congress in fulfillment
of this obligation....
Moreover, financial aid has been and
still is extended by the Federal Government
to the so-called land-grant colleges of the
various States. While it is true that
Negroes may be admitted to these colleges,
the conditions of admission are very much
restricted, and generally it may be said that
these colleges are not at all available to
the Negro, except for agricultural and
industrial education. This is particularly
so in the professional medical schools, so
that the only class A school in America for
training colored doctors, dentists, and
- 5 -
Howard University has a unique interest in
the resolution of this case by the Supreme Court.
This case raises questions of great importance
about the permissible scope of voluntary affirma
tive action under Title VII. Affirmance of the
lower court's proscription against voluntary
intitatives will chill voluntary programs in
particular and affirmative action generally.
1/ Cont 'd
pharmacists is Howard University, it being
the only place where complete clinical work
can be secured by the colored student.
Committee on Education Report Accompanying
H.R. 8466 (1926). See also, 14 Stat.
1021 (1926).
SUMMARY OF ARGUMENT
I. In enacting Title VII in 1964 Congress
neither expressly approved nor expressly dis
approved race-conscious efforts to correct the
effects of discriminatory practices. However,
subsequent judicial decisions and executive
actions established that Title VII permitted, and
in some circumstances required, the remedial use
of race. In amending Title VII in 1972 Congress
approved this interpretation of the statute.
The Equal Employment Opportunity Commission's
Guidelines on Affirmative Action correctly codi
fied this interpretation authorizing employers and
unions to adopt racial preferences as remedial
measures where they have a reasonable basis for
that action.
II. Race-conscious affirmative action is
justifiable where an employer or union has a
reasonable basis for believing that it might
otherwise be held in violation of the law.
The employer or union need not admit nor prove
7
prior discrimination, and it may take race
conscious action to remedy the disadvantages
affecting minorities as a result of discrimination
by others. A more rigid standard — like that
adopted by the majority of the Fifth Circuit
requiring proof or admission of discriminatory
practices — would largely eliminate voluntary
affirmative action. Moreover, a lawsuit challeng
ing race-conscious action under that standard does
not present a case or controversy because it is
not in the interest of either litigant to prove
the central factual issue, prior discrimination.
Finally, the Fifth Circuit's standard, if accepted
by this Court, would raise serious questions as to
the constitutionality of Title VII.
III. Kaiser and the Steelworkers properly
instituted a race-conscious plan because they
had a reasonable basis to believe that their
craft selection practices had violated, and
without affirmative action would continue to
violate, both Title VII and Executive Order
11,246. Moreover, it was appropriate and socially
responsible for the Company and the Union to
design a program which would remedy some of the
- 8 -
effects of decades of discriminatory practices by
employers, unions, and govermental bodies which
had denied training opportunities to blacks in the
skilled crafts.
The affirmative action plan was proper since
it expanded the employment opportunities of all
workers, black and white. The race-conscious
component of the plan conformed to provisions
which had been approved by courts and by adminis
trative agencies and was designed as an interim
measure which would terminate after remedying the
discriminatory practices. Finally, it resulted
from collective bargaining in which the interests
of all the workers were represented and it thus
furthered the policies favoring the voluntary
resolution of both labor and discrimination
disputes.
- 9 -
ARGUMENT
I. TITLE VII PERMITS EMPLOYERS AND
UNIONS TO TAKE VOLUNTARY RACE-
CONSCIOUS AFFIRMATIVE ACTION
A. Legislative History: 1964
The Civil Rights Act of 1964 was the first
comprehensive federal legislation ever to address
the pervasive problem of discrimination against
blacks in modern American society. See M. Sovern,
Legal Restraints on Racial Discrimination in
Employment 8 (1966). Extensive hearings had
focused the attention of Congress on the adverse
social and economic consequences of discrimination
2/against blacks m employment and other fields,—
and when the House Judiciary Committee issued
its report on the bill which became the Civil
Rights Act of 1964, it clearly stated that a
primary objective of the Act was to encourage
voluntary action to eliminate the effects of
discrimination against black citizens:
2/ See, e.g., Hearings on Equal Employment
Opportunity Before the General Subcomm. on Labor
of the House Comm, on Education and Labor, 88th
10
In various regions of the country
there is discrimination against some minority
groups. Most glaring, however, is the
discrimination against Negroes which exists
throughout our Nation. Today, more than 100
years after their formal emancipation,
Negroes, who make up over JO percent of our
population, are by virtue of one or another
type of discrimination not accorded the
rights, privileges, and opportunities which
are considered to be, and must be, the
birthright of all citizens.
* * *
No bill can or should lay claim to
eliminating all of the causes and conse
quences of racial and other types of dis
crimination against minorities. There
is reason to believe, however, that national
leadership provided by the enactment of
Federal legislation dealing with the most
troublesome problems will create an atmos
phere conducive to voluntary or local resolu
tion of other forms of discrimination.
2_/ Cont' d
Cong., 1st Sess. 3, 12-15, 47-48, 53-55, 61-63
(1963); Hearings on Civil Rights Before Subcomm.
No. 5 of the House Comm, on the Judiciary,
88th Cong., 1st Sess. 2300-03 (1963); Hearings on
Equal Employment Opportunity Before the Subcomm.
on Employment and Manpower of the Senate Comm, on
Labor and Public Welfare, 88th Cong., 1st Sess.
116-17, 321-29, 426-30, 449-52, 492-94 (1963).
li
lt is, however, possible and necessary
for the Congress to enact legislation
which prohibits and provides the means of
terminating the most serious types of dis
crimination. .. . H.R. Rep. No. 914, 88th
Cong., 1st Sess. (1963), reprinted in
EEOC, Legislative History of Titles VII and
XI of Civil Rights Act of 1964 at 2018.
This Court has repeatedly recognized the
purpose of the Act: "The objective of Congress in
the enactment of Title VII ... was to achieve
equality of employment opportunities and remove
barriers that have operated in the past to favor
an identifiable group of white employees over
other employees." Griggs v. Duke Power Co.,
401 U.S. 424, 429-30 (1971); Albemarle Paper Co.
v. Moody, 422 U.S. 405, 417 (1975). "The language
of Title VII makes plain the purpose of Congress
to assure equality of employment opportunities
and to eliminate those discriminatory practices
and devices which have fostered racially strati
fied job environments to the disadvantage of
minority citizens." McDonnell Douglas Corp. v .
Green, 411 U.S. 792, 800 (1973). This Court also
has recognized that Congress selected "[cjoopera-
12
tion and voluntary compliance ... as the preferred
means for achieving this goal." Alexander v .
Gardner-Denver Co. , 415 U.S. 36, 44 (1974). The
Court, in keeping with the intent of Congress (see
H.R. Rep. No. 914, pp. 10-11, supra), has endorsed
the imposition of judicial remedies under Title
VII as "the spur or catalyst which causes employ
ers and unions to self-examine and to self-evalu-
ate their employment practices and to endeavor to
eliminate, so far as possible, the last vestiges
of an unfortunate and ignominious page in this
country's history." Albemarle Paper Co. v .
Moody, supra, 422 U.S. at 417-18, quoting United
States v. N.L. Industries, Inc., 479 F.2d 354, 379
(8th Cir. 1973).
The record in this case shows that what
Congress intended and what the Court has endorsed
is precisely what happened: Kaiser and the
Steelworkers examined their practices and con
cluded that there was a reasonable basis to
believe that they would be found liable for
discrimination against blacks; they had "looked at
the large sums of money that companies were being
forced to pay, and we looked at our problem,
which was that we had no blacks in the crafts, to
13
speak of," A. 83 (English); and they volun
tarily adopted a plan to bring blacks into craft
jobs. See Section IIIA and n. 26, infra. In the
absence of compelling legislative history to the
contrary, Title VII cannot be read to foreclose
the use of such race-conscious numerical plans to
accomplish the primary purpose of the Act.
The legislative history of the orginal
enactment of Title VII in 1964 conclusively
demonstrates neither approval nor disapproval by
Congress of race-conscious efforts to correct the
effects of the past discriminatory exclusion
of blacks from training and job opportunities.
The major argument against congressional approval
of such efforts is premised upon the addition to
the bill on the Senate floor of §703(j), which
states that nothing in Title VII shall "require"
preferential treatment because of race "on account
3/of an imbalance...."—
3/ "Nothing contained in this subchapter shall
be interpreted to require any employer, employment
agency, labor organization, or joint labor-manage
ment committee subject to this subchapter to grant
preferential treatment to any individual or to any
group because of the race, color, religion, sex,
or national origin of such individual or group on
account of an imbalance which may exist with
- 14
Prior to the adoption of this amendment,
the Senate floor managers of the bill had explain
ed that Title VII would not require an employer to
maintain a racially balanced work force because,
While the presence or absence of other
members of the same minority group in the
work force may be a relevant factor in
determining whether in a given case a deci
sion to hire or to refuse to hire was based
on race, color, etc., it is only one factor,
and the question in each case would be
whether that individual was discriminated
against . 110 Cong. Rec. 7213 (1964) (inter
pretive memorandum of Senators Clark and
Case).
Notwithstanding this assurance, opponents of
the bill continued to argue "that a quota system
will be imposed, with employers hiring and unions
accepting members, on the basis of the percentage
of population represented by each specific minor
ity group." Id. at 9881 (remarks of Senator
3/ Cont ' d
respect to the total number or percentage of
persons of any race, color, religion, sex, or
national origin employed by any employer, referred
or classified for employment by any employment
agency or labor organization, admitted to member
ship or classified by any labor organization, or
admitted to, or employed in any apprenticeship or
other training program, in comparison with the
total number or percentage of persons of such
- 15
Allott). To put these doubts to rest, Senator
Allott proposed an amendment precluding a finding
of unlawful discrimination "solely on the basis of
evidence that an imbalance exists without
supporting evidence of another nature that the
respondent has engaged or is engaging in such
practice." Id_. at 9881-82. The sense of this
amendment was incorporated, in the language
of §703(j), as part of the Dirksen-Mansfield
compromise which resulted in the end of the
Senate debate and the enactment of the Civil
Rights Act of 1964. As Senator Humphrey explained
in presenting the compromise amendments to the
Senate,
A new subsection 703(j) is added to deal
with the problem of racial balance among
employees. The proponents of this bill have
carefully stated on numerous occasions that
Title VII does not require an employer
to achieve any sort of racial balance in his
work force by giving preferential treatment
to any individual or group. Since doubts
have persisted, subsection (j) is added to
state this point expressly. Id. at 12723.
3\j Cont1 d
race, color, religion, sex, or national origin
in any community, State, section, or other area,
or in the available work force in any community,
State, section, or other area." 42 U.S.C. §2000e-
2(j).
16
This legislative history does not indicate
that Congress intended to forbid race-conscious
numerical action to correct the effects of past
discrimination. The concern of Congress in
enacting §703(j) was not directed to the question
whether race could be taken into account for
remedial purposes; rather, its intent was to
ensure that findings of discrimination would not
be based solely on evidence of statistical im
balance and thereby to allay the fear that Title
VII would have the effect of requiring employers
to maintain a specific racial balance of employ
ees.— ^The language of §703(j), like that of
4/ Senators Clark and Case also stated that "any
deliberate attempt to maintain a racial balance,
whatever such a balance may be, would involve a
violation of Title VII because maintaining such a
balance would require an employer to hire or to
refuse to hire on the basis of race." 110 Cong.
Rec. at 7213. See also id_. at 6549 (remarks of
Senator Humphrey). Senator Allott believed that
"a quota system of hiring would be a terrible
mistake," but did not indicate whether such a
system would be unlawful. _Id_. at 9881-82.
These statements may indicate an intention to
prohibit employers from deliberately maintaining
a particular racial composition of employees as an
end in itself, but they do not suggest any inten-
- 17
§703(h), does not restrict or qualify otherwise
appropriate remedial action but defines what is
and what is not an illegal discriminatory prac
tice. Cf. Franks v. Bowman Transportation Co.,
supra, 424 U.S. at 758-62. Indeed, the legisla
tive history of the 39 64 Act shows no detailed
consideration of the scope and nature of remedial
actions which might be taken by employers and
unions or ordered by the courts, and it shows no
consideration whatever of the permissibility of
race-conscious remedial measures. See generally,
EEOC, Legislative History of Titles VII and XI of
Civil Rights Act of 1964. There is no indication
that "in the absence of any consideration of the
question, ... Congress intended to bar the use of
racial preferences as a tool for achieving the
objective of remedying past discrimination or
other compelling ends." Bakke, supra, 57 L.Ed.2d
at 803 n.17 (opinion of Brennan, White, Marshall,
Blackmun, JJ.).
4/ Cont' d
tion to foreclose "the voluntary use of racial
preferences to assist minorities to surmount the
obstacles imposed by the remnants of past dis
crimination." Regents of the University of Cali
fornia v. Bakke, 57 L.Ed.2d 750, 803 n. 17 ( 1978)
(opinion of Brennan, White, Marshall, Blackmun,
JJ.).
18
B. Judicial and Executive Interpreta
tions: 1964-1972
In the years following the enactment of Title
VII, the courts and federal executive agencies
recognized that Congress had not intended to
outlaw one of the most effective means of remedy
ing past discrimination, and accordingly they
interpreted Title VII to permit, and in some
instances to require, the use of race-conscious
numerical remedies. The courts held that §703(j)
could not be construed as a ban on such remedies:
"Any other interpretation would allow complete
nullification of the stated purposes of the Civil
Rights Act of 1964." United States v. Local 38,
IBEW, 428 F .2d 144, 149-50 (6th Cir.), cert.
denied, 400 U.S. 943 (1,970). Title VII was held
to authorize remedial orders requiring union
referrals of one black worker for each white
worker,— specific percentages of blacks in
regular apprenticeship classes and special appren-
5/ Local 53, Asbestos Workers v. Vogler, 407
F .2d 1047, 1055 (5th Cir. 1969).
19
ticeship programs for blacks only,— ^and pref
erential work registration, examination, and
referral procedures for blacks with experience in
the construction industryAs the Second Cir
cuit stated in summarizing these decisions,
"while quotas merely to attain racial balance are
forbidden, quotas to correct past discriminatory
practices are not." United States v. Wood Lathers
Local 46, 471 F . 2d 408, 413 (2d Cir.), cert.
denied, 412 U.S. 939 (1973) /
Also during the period between the enactment
of Title VII in 1964 and its amendment in 1972,
the Department of Labor determined that numerical
goals and timetables were necessary to implement
6/ United States v. Ironworkers Local 86, 315
F.Supp. 1202, 1247-48 (W.D. Wash. 1970), aff'd,
443 F.2d 544, 553 (9th Cir.), cert denied, 404
U.S. 984 (1971).
JJ United States v. Sheet Metal Workers Local 36,
416 F.2d 123, 133 (8th Cir. 1969).
8/ The courts of appeals in eight circuits
have upheld the authority of the district courts
to order race-conscious numerical relief under
Title VII or other federal fair employment laws,
see nn. 94-95 , infra.
- 20
the equal employment opportunity and affirmative
action obligations of government contractors under
Executive Order No. 11,246, and that a permissible
method of meeting the goals and timetables in the
construction industry was the hiring of one minor
ity craftsman for each nonminority craftsman.
See Comment, The Philadelphia Plan: A Study in the
Dynamics of Executive Power, 39 U . Chi. L . Rev.
723, 739-43 (1972). Both the Department of
Labor— ^and the Department of Jus t ice^-^ found
no conflict between such race-conscious measures
and the provisions of Title VII. The courts
agreed, holding that § 7 0 3 (j ) did not impose
any limitation on actions taken pursuant to the
Executive Order program, and that,
To read §703(a) in the manner suggested
by the plaintiffs, we would have to attribute
to Congress the intention to freeze the
status quo and to foreclose remedial action
9J Office of the Solicitor, U.S. Department of
Labor, Legal Memorandum, in Hearings on the
Philadelphia Plan and S. 931 Before the Subcomm.
on Separation of Powers of the Senate Comm, on the
Judiciary, 91st Cong., 1st Sess. 255, at 274
(1969).
10/ 42 Op. Att'y Gen. No 37 (Sept. 22, 1969).
- 21
under other authority designed to overcome
existing evils. We discern no such intention
either from the language of the statute
or from its legislative history. Contractors
Association v. Secretary of Labor, 442
F.2d 159, 173 (3rd Cir.), cert, denied, 404
U.S. 854 (1971).
See also Southern Illinois Builders Association
v. Ogilvie, 471 F.2d 680, 684-86 (7th Cir. 1972),
and cases cited therein. Thus, by the time
Congress considered the 1972 amendments to Title
VII, it was well established that the 1964 Act
permitted race-conscious remedial action.
C. Legislative History: 1972
In amending Title VII by the enactment of the
Equal Employment Opportunity Act of 1972, Pub. L.
No. -92-261, Congress approved these interpreta
tions of Title VII. Congress was aware that
Employment discrimination as viewed
today is a complex and pervasive
phenomenon. Experts familiar with the
subject now generally describe the problem in
terms of "systems" and "effects" rather
than simply intentional wrongs, and the
literature on the subject is replete with
discussions of, for example, the mechanics
of seniority and lines of progression,
perpetuation of the present effect of pre-act
- 22
discriminatory practices through various
institutional devices, and testing and
validation requirements. S. Rep. No. 92-415,
92d Cong., 1st Sess. 5 (1971).
The committee reports specifically cited
cases which had approved race-conscious solutions
for these complex and pervasive problems. See,
e.g., id. at 5, n.l; H.R. Rep. No. 92-238, 92d
Cong., 1st Sess. 8 n.2, 13 n.4 (1971). And, in
a section-by-section analysis presented to the
Senate with the conference report, the Senate
sponsors of the legislation stated that,
In any area where the new law does not
address itself, or in any area where a speci
fic contrary intention is not indicated, it
was assumed that the present case law as
developed by the courts would continue to
govern the applicability and construction of
Title VII. 118 Cong. Rec. 3460-63 ( 1972),
reprinted in EEOC, Legislative History of the
Equal Employment Opportunity Act of. 1972, at
1844.
See Bakke, supra, 57 L.Ed.2d at 811 n.28 (opinion
of Brennan, White, Marshall, Blackmun, JJ.).
Moreover, with full awareness of the judicial
decisions interpreting Title VII to permit the
remedial use of race, Congress not only confirmed
but expanded the remedial authority of the courts
by amending §706(g) to provide expressly that
appropriate affirmative action under that section
"is not limited to" reinstatement, hiring, and an
award of back pay, and that a remedial order may
- 23
include "any other equitable relief as the
court deems appropriate." 42 U.S.C. §2000e-5(g).
See Comment, The Philadelphia Plan, supra,
39 U. Chi. L. Rev. at 759 n.189.
Finally, "Congress, in enacting the 1972
amendments to Title VII, explicitly considered and
rejected proposals to alter Executive Order
11,246 and the prevailing judicial interpretations
of Title VII as permitting, and in some circum
stances requiring, race conscious action." Bakke,
supra, 57 L.Ed.2d at 811 n.28 (opinion of Brennan,
White, Marshall, Blackmun, JJ.). The detailed
history of the Dent and Ervin amendments and their
rejection by the House and Senate has been docu
mented elsewhere and need not be repeated here.
See Comment, The Philadelphia Plan, supra, 39
U. Chi. L. Rev. at 751-57. See also, Bo s ton
Chapter, NAACP, Inc, v. Beecher, 504 F.2d 1017,
1028 (1st Cir. 1974), cert. denied, 421 U.S. 910
(1975); United States v. Local 212, IBEW, 472 F.2d
6 34 , 636 ( 6th Cir. 1973). In sum, " [ e ]xecut ive,
judicial, and congressional action subsequent to
the passage of Title VII conclusively established
that the Title did not bar the remedial use of
race." Bakke, supra, at 811 n.28 (opinion of
Brennan, White, Marshall, Blackmun, JJ.).
- 24
D. EEOC Guidelines on Affirmative Action
The Equal Employment Opportunity Commission
recently codified and reaffirmed this interpreta
tion of Title VII in its Guidelines on Affirmative
Action, 44 Fed. Reg. 4421-30 (Jan. 19, 1979), 29
C.F.R. Part 1608. These guidelines were proposed
in part to encourage voluntary compliance by
"authorizing employers to adopt racial preferences
as a remedial measure where they have a reason
able basis for believing that they might otherwise
be held in violation of Title VII." Bakke,
supra, 57 L.Ed.2d at 818 n.38 (opinion of Brennan,
White, Marshall, and Blackmun, JJ.). Under
the guidelines an employer or union, following a
reasonable self-analysis . of its practices which
discloses a reasonable basis for concluding that
action is appropriate, may voluntarily take
reasonable affirmative action including the use of
"goals and timetables or other appropriate employ
ment tools which recognize the race, sex, or
national origin of applicants or employees." 29
C.F.R. §1608.4(c). Such action may be taken where
there is a reasonable basis for believing that it
is an appropriate means of, inter alia, correcting
the effects of past discrimination, eliminating
- 25
the adverse impact on minorities of present
practices, or terminating disparate treatment. 29
C.F.R. §§1608.3, 1608.4(b). It is not necessary
for an employer or union to establish that it has
violated Title VII in the past; there is no
requirement of an admission or formal finding of
past discrimination, and affirmative action may be
taken without regard to arguable defenses which
might be asserted in a Title VII action brought on
behalf of minorities. 29 C.F.R. §1608.4(b). See
Section IIA, infra. The guidelines recognize
that
Voluntary affirmative action to improve
opportunities for minorities and women must
be encouraged and protected in order to
carry out the Congressional intent embodied
in Title VII. Affirmative action under
these principles means those actions appro
priate to overcome the effects of past
or present practices, policies, or other
barriers to equal employment opportunity.
Such voluntary affirmative action cannot be
measured by the standard of whether it would
have been required had there been litigation,
for this standard would undermine the legis
lative purpose of first encouraging voluntary
action without litigation. Rather, persons
subject to Title VII must be allowed flexi
bility in modifying employment systems and
practices to comport with the purposes
of Title VII. Correspondingly, Title VII
must be construed to permit such voluntary
- 26
action, and those taking such action should
be afforded ... protection against Title VII
liability ___ 29 C.F.R. §1608.1(c).
These guidelines "constitute 'the administra
tive interpretation of the Act by the enforcing
agency,' and consequently they are 'entitled to
great deference."' Albemarle Paper Co. v. Moody,
supra, 422 U.S. at 431; Griggs v. Duke Power Co.,
supra, 401 U.S. at 433-34. The degree of defer
ence to be accorded to such an interpretation
depends upon "the thoroughness evident in its
consideration, the validity of its reasoning,
its consistency with earlier and later pro
nouncements, and all those factors which give
it power to persuade, if lacking power to con
trol." General Electric Co. v. Gilbert, 429 * &
U.S. 125, 142 (1976), quoting Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944).
When judged by these standards, the Guide
lines on Affirmative Action are entitled to great
weight. First, the EEOC's careful and thorough
consideration is evident: the proposed guidelines
were intitally issued on December 28, 1977, 42
Fed. Reg. 64,826; comments were received from
almost 500 individuals and organizations ; the
- 27
Commission considered this Court's opinions in the
Bakke case before taking any final action; and
substantial changes were made before the Commis
sion voted to approve the guidelines in final form
on December 11, 1978. See Supplementary Informa
tion: An Overview of the Guidelines on Affirmative
Ac t ion, 44 Fed. Reg. at 4422-23. The EEOC's
extensive consideration of the comments, the legal
authorities, -and the precise wording of the
guidelines is reflected in some detail in the
overview issued with the final guidelines. H_. at
4422-25. Second, the validity of the reasoning
set forth in the guidelines is apparent from the
legislative history of the 1964 enactment and the
1972 amendment of Title VII, as well as from
judicial and other executive agency interpreta
tions of the statute. See pp. 18-21, supra.
Finally, the guidelines are fully consistent with
prior interpretations of Title VII by the EEOC
expressly approving "[n]umerical goals aimed at
increasing female and minority employment" as "the
cornerstone of . a[n affirmative action]
plan." EEOC Decision 74-106, 10 FEP Cases 269,
28
274 (April 2, 1974); EEOC Decision 75-268, 10 FEP
Cases 1502, 1503 (May 30, 1975). See also, Equal
Employment Opportunity Coordinating Council,
Policy Statement on Affirmative Action Programs
for State and Local Government Agencies, 41 Fed.
Reg. 38,814 (Sept. 13, 1976), reaffirmed and
extended to all persons subject to federal equal
employment opportunity laws and orders in the
Uniform Guidelines on Employee Selection Proce
dures, 43 Fed. Reg. 38,290, 38,300 (Aug. 25,
1978), 29 C.F.R. §1607.13B.
II. A STANDARD PERMITTING EMPLOYERS AND
UNIONS TO TAKE RACE-CONSCIOUS
AFFIRMATIVE ACTION WHEN THEY HAVE A
REASONABLE BASIS TO DO SO IS CON
SISTENT WITH TITLE VII AND THE
CONSTITUTION
A. An Employer or Union May Take Race-Con
scious Affirmative Action Where It Acts
upon a Reasonable Belief that such
Action Is Appropriate
An employer when considering whether to
institute a race-conscious affirmative action
plan, or a court when reviewing a challenge to
such a plan, need only determine that there is a
reasonable basis for the plan in order to conclude
that the plan is lawful. The employer is not
required to admit that it had engaged in unlawful
- 29
prior discriminatory practices or to submit
evidence sufficient for a court to find that the
employer had violated the fair employment laws in
order to justify the institution of the plan.
EEOC Guidelines on Affirmative Action, 29 C.F.R.
51608.1(c). See Section ID, supra. A rigid
standard requiring conclusive proof of prior
discrimination would largely eliminate voluntary
affirmative action, see pp. 32-34, infra. The
circumstances which constitute a reasonable basis
for instituting an affirmative action plan vary
according to the particular employment situation.
However, an employer or union may develop a race
conscious affirmative action plan when there is
reason to believe that such action is appropriate,
inter alia, (1) to provide a remedy for prior
discriminatory practices of the employer or union,
(2) to insure the legality of current practices,
(3) to provide a remedy for discriminatory prac
tices related to the business of the employer or
union, or (4) to comply with Executive Order No.
11,246 or other legal requirements for affirmative
- 30 -
action. — ^Moreover, the action undertaken must
be reasonably related to the identified problems
which justify the institution of the plan, see
Section III B, infra■
In enacting Title VII Congress selected
"[c]ooperation and voluntary compliance ... as
the preferred means for achieving" the elimination
of discrimination in employment. Alexander v .
Gardner-Denver Co., supra, 415 U.S. at 44. The
standard for determining whether an affirmative
action plan is lawful under Title VII must simi
larly encourage voluntary compliance and voluntary
action. The standard adopted by a majority of the
court below, which would require an employer to
admit that it was guilty of unlawful discrimina
tory practices or to submit conclusive proof of
such practices before it could lawfully institute
an affirmative action plan, would frustrate
the purposes of Title VII.
11/ Of course, in certain circumstances an
employer or union may be required to institute an
affirmative action program. The justifications
for race-conscious affirmative action which are
listed are not exclusive but rather those that
are relevant to the affirmative action plan
designed by Kaiser and the Steelworkers.
- 31
[T]he standard produces ... an end to
voluntary compliance with Title VII. The em
ployer and the union are made to walk a
high tightrope without a net beneath them.
On one side lies the possibility of lia
bility to minorities in private actions,
federal pattern and practice suits, and
sanctions under Executive Order J1246.
On the other side is the threat of private
suits by white employees and, potentially,
federal action ... [T]he defendants could
well have realized that a victory at the cost
of admitting past discrimination would be a
Pyrrhic victory at best. G. Pet. 32a-34al2/
(Wisdom, J., dissenting).13/
12/ This form of citation refers to the petition
for a writ of certiorari filed by the United
States and the Equal Employment Opportunity
Commission.
13/ Ironically, if the applicable standard were
to require conclusive proof or an admission of
prior discrimination, then the back pay remedy
which the Court indicated should provide a "spur
or catalyst" for voluntary compliance, Albemarle
Paper Co. v. Moody, supra, 422 U.S. at 417-18,
would instead provide a barrier to voluntary
compliance. The admission of prior discrimination
or the submission of conclusive proof of discrimi
nation would serve as an open invitation for a
suit seeking back pay by black workers. The
failure of the company to admit or to prove
conclusively its prior discrimination would serve
as an equally open invitation for a suit seeking
back pay in addition to injunctive relief by white
workers. If whenever undertaking affirmative
action employers were confronted with monetary
liability to one group of workers or the other,
- 32
The "high tightrope" that employers are
required to walk by the Fifth Circuit's standard
is illustrated by Kaiser's experience with
VTI suits at its three plants in Louisiana
Baton Rouge, Chalmette and Grammercy.
Black workers at both the Chalmette and the Baton
Rouge plants brought lawsuits alleging Title VII
violations. In the Chalmette suit, the Fifth
Circuit reversed the district court's dismissal of
the complaint because it found on facts remarkably
similar to those at the Grammercy plant that a
prima facie violation of Title VII had been
established. Parson v. Kaiser Aluminum & Chemical
Corp_. , 575 F . 2d 1374, 1389-90 ( 1978). In the
13/ Cont ' d
employers would refrain from ever taking affirma
tive action.
"Indeed, the requirement of a judicial
determination of a constitutional or statutory
violation as a predicate for race-conscious reme
dial actions would be self-defeating. Such
a requirement would severely undermine efforts to
achieve voluntary compliance with the requirements
of law." Bakke, supra, 57 L.Ed.2d at 818 (Bren
nan^ White, Marshall, Blackmun, JJ.); see McDaniel
v. Barresi, 402 U.S. 39 (1971).
- 33
Baton Rouge suit, the parties, after lengthy
14/litigation and discovery procedures,— entered
into a settlement which provided that Kaiser pay
$255,000 in monetary relief to the plaintiff class
and an additional amount in attorneys' fees.
Burrell v. Kaiser Aluminum & Chemical Corp., Civil
Action No.67-86 (M.D. La.) (consent decree filed
Feb. 24, 1975). Kaiser's experience with the
Title VII suits brought by black workers in its
plants in Louisiana and its review of suits
brought against other companies acted — as in
tended by this Court in Albemarle Paper — as a
"spur or catalyst" for change In the third
plant, at Grammercy, where Kaiser adopted an af
firmative action plan designed to remedy possible
prior violations and to forestall a lawsuit
brought on behalf of black workers, see Section
IIIA, infra, it was subjected to this lawsuit by
14/ See, e.g., Burrell v. Kaiser Aluminum and
Chemical Corp., 408 F.2d 339 (5th Cir. 1969) (per
curiam), rev1g 287 F.Supp. 289 (E.D. La. 1968).
15/ The superintendent for industrial relations
at the Grammercy plant noted that "the OFCC, the
EEOC, the NAACP, the Legal Defense Fund [had all]
been into the [Baton Rouge] plant, and as I was
saying, whatever their remedy is believe me, it's
one heck of a lot worse than something we can work
out ourselves." A. 83-84, see p.58 n.26, infra.
- 34 -
Brian Weber alleging reverse discrimination. The
Fifth Circuit's rigid standard, requiring conclu
sive proof or an admission of prior discriminatory
practices, would not only result in less voluntary
compliance but would also result — as indicated
by Kaiser's experience in Louisiana — in the
filling of the court dockets with Title VII ] £ /
suits.— See G. Pet. 32a (Wisdom, J., dissenting).
Race-conscious affirmative action is justi
fiable if an employer or a union has a reasonable
basis for believing that it might otherwise be
16/ There was a "staggering" increase in the
number of Title VII cases filed between 1970 and
1976: from 344 employment cases filed in fiscal
year 1 970 to 5,321 in fiscal year 1976. Adminis
trative Office of the United States Courts,
1976 Annual Report of the Director, at 107-08.
This increase is understandable in light of the
facts that the coverage of Title VII was broadly
expanded by the Equal Employment Opportunity Act
of 1972, see e.g., Chandler v. Roudebush, 425 U.S.
840 , 841 (19 7 6), and that the interpretation of
Title VII on numerous issues was first clarified
during this period. See e.g, Griggs v. Duke
Power Co., 401 U.S. 424 (1971); McDonnell Douglas
Corp. v . Green, 411 U.S. 792 (1973); Albemarle
Paper Co. v . Moody, 422 U.S. 405 (1975).
- 35
held in violation of Title VII. An affirmative
action plan may be used to remedy the effects of
possible prior discriminatory practices or to
prevent possible continuing discriminatory
16/ cont 'd
This enormous growth rate in Title VII
filings slowed after fiscal year 1976. While there
was an increase of 1,390 filings or of 35.4% from
FY 1975 to FY 1976 (3, 931 filings as compared
to 5,321 filings), in FY 1977 there was an in
crease of 610 filings or of 11% to 5,931. Admin
istrative Office of the United States Courts, 1977
Annual Report of the Director, at 112. In FY 1978
there was a decrease of 427 filings or of 7%
(from 5,931 to 5,504 filings). Administrative
Office of the United States Courts, 1978 Annual
Report of the Director, at 88.
While it is difficult to draw hard conclu -
sions from the dramatic change in the rate
of Title VII case filings from a "staggering"
increase to a decrease, it may be inferred that
the clarifications in the law and the emphasis on
voluntary affirmative action were beginning to
have an effect. If voluntary affirmative action
is severely restricted — as it would be if the
Fifth Circuit is affirmed — then the remedy for
employment discrimination would lie primarily in
the courts and not in voluntary resolution, and a
return to a substantial increasing rate of Title
VII cases could be expected.
- 36
practices.— ̂ This Court has held that a statis
tical disparity resulting from a facially neutral
practice is sufficient to establish a prima facie
disparate impact violation of Title VII, Dothard
v. Rawlinson, 433 U.S, 321 , 329 (1977); and that
gross statistical disparities alone may be suffi
cient to constitute a prima facie showing of
intentional discrimination, Hazelwood School
District v. United States, 433 U.S. 299, 307-08
(1977); International Brotherhood of Teamsters v .
United States, 431 U.S. 324, 339 (1977). Accord-
17/ "If the self analysis shows that one or more
employment practices: (1) have or tend to have an
adverse effect on employment opportunities of
members of previously excluded groups, or groups
whose employment or promotional opportunities have
been artificially limited, (2) leave uncorrected
the effects of prior discrimination, or (3) result
in disparate treatment, the person making the
self-analysis has a reasonable basis for conclud
ing that action is appropriate. It is not neces
sary that the self-analysis establish a violation
of Title VII. This reasonable basis exists
without any admission or formal finding that the
person has violated Title VII, and without regard
to whether there exist arguable defenses to a
Title VII action." EEOC Guidelines on Affirmative
Action, 29 C.F.R. §1608.4(b); see also §1608.3(b).
- 37
ingly, employers and unions may rely on statisti
cal analysis in determining whether there is a
18/reasonable basis for taking affirmative action.—
Where, as in this case, the statistical analysis
indicates a prima facie showing that the employ
er's prior practices were discriminatory and that,
if the employer did not take race-conscious
affirmative action, its continuing practices would
be discriminatory, see pp. 82-85, infra, the
employer had a reasonable basis for taking such
action.
But the analysis need not demonstrate
that there is a prima facie case in order for
race-conscious action to be justifiable. Requir
ing an employer to demonstrate a prima facie
case would frustrate voluntary compliance and the
effective implementation of private remedies for
discriminatory practices for the same reasons,
although not quite as severely, as requiring the
employer to admit that it had engaged in dis-
18/ "The effects of prior discriminatory prac
tices can be initially identified by a comparison
between the employer's workforce, or a part
thereof, and an appropriate segment of the labor
force." EEOC Guidelines on Affirmative Action,
29 C.F.R. §1608.3(b). See also §§1608.3(a),
1608.4(a).
- 38
. . . 19/criminatory practices.-- In order to justify
race-conscious affirmative action an employer need
only show that it had a reasonable basis for
believing that, in the absence of such action,
it might be held in violation of Title VII.
Furthermore, an employer or union may
take race-conscious action to remedy the disad
vantages affecting minorities as a result of
the discriminatory practices of other companies or
unions or as a result of governmental or societal
. . 2 0 /discrimination.— Such action is particularly
19/ Neither Kaiser nor the Steelworkers argued in
the district court that there was a prima facie
case of discrimination even though it is apparent
that such an argument was readily available, see
pp. 56-58, infra. In fact, the parties did not
introduce important but available evidence which
would have confirmed the prima facie showing, see
p. 58 n.26, infra. The reason for the omission
is obvious: by proving or almost proving prior
discrimination, the parties would invite a suit
brought on behalf of black workers which would
involve the parties in the complex litigation
which they had sought to avoid by agreeing to the
affirmative action plan.
20/ "Although Title VII clearly does not require
employers to take action to remedy the disad
vantages imposed upon racial minorities by hands
- 39
necessary where, as is the case with skilled
craftsmen, see pp. 88-105, infra, there is a
limited pool of available minorities because of a
history of discrimination by employers, by unions,
by educational institutions and even by law. See
EEOC Guidelines on Affirmative Action, 29 C.F.R.
§1608.3(c). If the pervasive, complex, and
systemic discriminatory practices in this country
— and their socially dangerous effects, such as
the disproportionate unemployment rate among
minorities — are ever to be undone, employers
must be encouraged to undertake socially respons
ible affirmative action. See Bakke, supra, 57
L.Ed.2d at 844-45 (Blackmun, J.).
It is almost inevitably the case that employ
ers like Kaiser become part and parcel of the
general practices of discrimination. When Kaiser
selected from a pool of skilled craftsmen to
which minorities had limited access because of
discriminatory business, union, and vocational
20/ Cont 'd
other than their own, such an objective is per
fectly consistent with the remedial goals of the
statute." Bakke, supra, 57 L.Ed.2d at 804 n.17
(opinion of Brennan, Marshall, White, Black
mun , JJ.).
- 40 -
training practices, it relied on and, in effect,
supported the discriminatory practices of others.
Reliance on the discriminatory policies of others
which has an adverse impact on minorities, whether
done intentionally or simply without sufficient
business justification, may constitute a violation
2 1 /of Title VII.-- At the very least, a company
which has relied on the discriminatory practices
of others should be encouraged to take action
which would effectively eliminate that reliance
and correct the adverse racial effects caused by
those practices.
21/ See, e.g., Griggs v. Duke Power Co., supra,
401 U.S. at 430 ("Because they are Negroes,
petitioners have long received inferior education
in segregated schools---" The petitioners' Title
VII rights were violated because the company
instituted education and testing requirements
which were not job-related and which failed blacks
more frequently than whites as a result of the
discrimination in education); Bakke, supra, 57
L.Ea. 2d at 819 ("[0]ur cases under Title VII ...
have held that, in order to achieve minority
participation in previously segregated areas of
public life, Congress may require or authorize
preferential treatment for those likely disad
vantaged by societal racial discrimination.")
(Opinion of Brennan, White, Marshall, Blackmun,
JJ. ).
- 41
Finally, an employer which is a qualifying
government contractor may, and indeed must,
undertake affirmative action to comply with the
requirements of Executive Order No. 11,246.
In enacting the Equal Employment Opportunity Act
of 1972, Congress specifically considered and
rejected efforts to outlaw the use of numerical,
race-conscious plans under the Executive Order
program. See Section IC, supra ; Comment, The
Philadelphia Plan, supra, 39 U. Chi. L. Rev. at
751-57. Race-conscious action which is undertaken
in good faith reliance on the Executive Order is
not only permissible under Title VII but furthers
the purposes of Title VII. EEOC Guidelines on
Affirmative Action, 29 C.F.R. §1608.5.— '1
B. An Action to Enforce the Fifth
Circuit's Construction of Title
VII Would not Present a "Case
or Controversy"
The court of appeals held, and respondent
apparently agrees, that the Company and Union
22/ Regardless of the justification for race-con
scious affirmative action, the measures undertaken
must be appropriately designed to remedy the
identified problems. The standards for determining
appropriate action are discussed in Section III B,
infra.
- 42
could have successfully defended this action if
they had alleged and proved that they had dis
criminated on the basis of race against black
employees or applicants. The defendants made no
effort to present this defense; on the contrary,
they claimed that they had not discriminated
against blacks. The evidence adduced by the
defendants on this issue was apparently intended
to show the absence of past discrimination against
blacks, and thus supported the claims and inter
ests of the plaintiff rather than of the defen
dants themselves. The defendants were in posses
sion of a variety of evidence showing past
discrimination against blacks, including the OFCC
letter described in n. 42, infra, but they failed
to introduce the evidence into the record.
Although the scanty evidence that was placed in
the record strongly suggested a history of dis
crimination against blacks, counsel for the
defendants consistently declined to press such an
inference or to urge such a defense. Despite this
peculiar state of affairs, the courts below
attempted to make a factual finding as to whether
or not there had been such a history of discrimi
nation.
- 43
What occurred in this instance is not unique,
but seems an inherent difficulty with cases of
this sort. As the Company candidly notes, no
employer "can be expected to confess to past
discrimination in order to justify a challenged
racial preference." Petition, No. 78-435,
p. 11. Such a confession would give rise to
potentially massive liability to black employees
and applicants for back pay and/or punitive
damages. See pp. 31-34,. supra. No employer will
seek to prove liability to a large number of
minorities or women merely to avoid liability to a
white male. The same dilemma exists outside of
the employment area.
An action which can only be fully defended
by establishing liability to third parties, and
which as a consequence will not be so defended,
does not present a "case or controversy" within
the meaning of Article III. The parties to a
proceeding in federal court must have "such
a personal stake in the outcome of the controversy
as to assure that concrete adverseness which
sharpens the presentation of issues upon which the
court so largely depends . . . Baker v. Carr,
- 44 -
369 U.S. 186, 204 (1962). The nature of the
interests of each party should assure that they
will "frame the relevant questions with specifi
city, contest the issues with the necessary
adverseness, and pursue the litigation vigorously."
Barlow v. Collins, 397 U.S. 159, 172 ( 1970)
(Brennan, J., concurring). The courts are un
equipped, in the absence of such competing inter
ests, to resolve factual questions which usually
require discovery and a contested evidentiary
hearing. These considerations are of particular
import where, as here, upholding plaintiff's
undefended claim of non-discrimination would
adversely affect the interests of third parties,
the black workers.
Previous standing decisions have focused on
whether the plaintiff has a "sufficient stake in
an otherwise justiciable controversy to obtain
judicial resolution Sierra Club v. Morton,
405 U.S. 727, 731 (1972). That requirement is as
applicable to a defendant as it is to a plaintiff,
for the necessary vigorous contest of issues
requires two competing parties. This Court has
- 45
repeatedly held that a party lacks standing to
litigate an issue if success in the litigation will
not accrue to its benefit. Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26 (1976);
Warth v. Seldin, 422 U.S. 490 (1975). A fortiori
the required interest is lacking where success in
the litigation will operate to the disadvantage of
the "prevailing" party. Even where the plaintiff
himself has standing to bring an action, it must be
brought against a party with standing to defend
it.
An adversary relationship does exist between
the parties to this case as to the ultimate
outcome — whether the defendants can continue
their affirmative action program. But the purpose
of the case or controversy requirement is to
insure that the parties will aid the court by
vigorously contesting each of the subsidiary
issues of law and fact which the court must
decide. Ordinarily a controversy as to the
ultimate issue will be adequate to prompt the
parties to controvert all reasonably disputable
subsidiary issues. But a dispute as to the
outcome of the action is insufficient to create a
- 46 -
"case or controversy" where there are no adverse
interests as to a critical question of law or
fact.
Were it possible for an action such as this to
proceed as it did below, with the judges left to
their own devices to determine if there was past
discrimination against blacks, it would be equally
permissible for the defendants to join the
plaintiff in a formal stipulation that there had
never been such discrimination. Of course, the
courts would not be bound by a stipulation that
was contrary to the truth, and the courts will not
decide a question presented by "stipulated" facts
that are not the case. Swift & Co. v. Hocking
Valley R.R. Go. , 243 U.S. 281, 289 (1917). But
the courts would have no way of ascertaining
the accuracy of such a stipulation. Stipula
tions are ordinarily accepted because the courts
can rely on the adverse interests of the parties
to assure that stipulations will only be agreed
upon if true ; no such presumption can be relied
upon where, as here, it is in the interests of all
parties to agree th,ere is no history of discrimi
nation.
- 47
An action against a defendant who lacks any
adverse interest in a key factual issue poses
Article III problems similar to those presented
by "friendly actions" which this Court has consis
tently refused to decide. United States v .
Johnson, 319 U.S. 302, 305 (1943) (no "honest and
actual antagonistic assertion of rights"); Lord v.
Veazie, 8 How. 251, 254-55 ( 1850). Regarding
the question of past discrimination "the plaintiff
and defendant have the same interest, and that
interest [is] adverse and in conflict with
the interest of third persons, whose rights
would be seriously affected if the question . . .
was decided in the manner that both of the parties
to this suit desire it to be ." Lord v. Veazie,
supra, 8 How. at 255. The instant case bears
a substantial resemblance to Chicago etc. R.R.
v . Wellman, 143 U.S. 339 (1892), an action bet
ween a railroad and passenger regarding the
validity of state price regulation which this
Court dismissed at the suggestion of the state.
Even though there was no claim or evidence of
collusion, the Court thought it inappropriate to
decide a case in which the amicable relationship
- 48
between the parties resulted in an abortive trial
of complex factual issues, lacking "presentation
of all the facts from the lips of witnesses, and a
full'inquiry into them...." 143 U.S. at 3̂ 5. In
such a case the intervention of an interested
party does not confer on the court jurisdiction
which it originally lacked. United States v .
Johnson, supra.
We suggest that these difficulties will exist
under any construction of Title VII which requires
the defendant in a case such as this to adduce
evidence or make allegations which entail a "real
and appreciable" danger of increasing the likeli
hood that the defendant will be held liable to
third parties, including black workers or the
United States. See Marchetti v. United States,
390 U.S. 39, 48 (1968). Clearly such a defendant
cannot be required to prove it was guilty of
discrimination. Neither can it be forced to
adduce a prima facie case of past discrimination,
for such a prima facie case would shift to the
employer the burden of proof in any subsequent
action by minority employees or applicants.
Teamsters v. United States, supra, 431 U.S.at
- 49
359-62; Franks v. Bowman Transportation Co.,
supra, 424 U.S. at 772. Similarly a defendant
cannot be asked to admit and to prove that it had
believed it was discriminating against blacks, for
such an admission might provide grounds for an
award of punitive damages. See Carey v. Piphus,
55 L.Ed.2d 252, 260-61, n.11 (1978). The standard
we set out in part A, unlike the Fifth Circuit's
construction of Title VII, poses none of these
Article III problems.
C. The Fifth Circuit Has Given Title
VII an Unconstitutional Construction
The Fifth Circuit construed Title VII to
prohibit race-conscious remedies to correct
"societal discrimination", a phrase which denoted
discrimination by anyone other than the defendants
themselves. As this Court has consistently
recognized, race-conscious policies are frequently
"the one tool absolutely essential" for redressing
past discrimination. North Carolina Bd . of
Ed. v . Swann, 402 U.S. 43, 46 (1971). Thus, under
many if not most circumstances Title VII, as
construed below, would prohibit any meaningful
- 50 -
effort by an employer to provide redress for
discrimination by other employers, or by state,
local or federal officials. Any such prohibition
would violate the Fifth Amendment, which applies
to federal legislation the same constraints
applicable to the states under the Equal Protec
tion clause. See Bolling v. Sharpe, 347 U.S. 497
(1954).
A blanket prohibition against race—conscious
redress of discrimination by others would be
neutral on its face. But, like the prohibition in
Hunter v. Erickson, 393 U.S. 385 (1969), it would
be far from neutral in its operation. It would not
deny to whites any remedies which they now enjoy,
for whites have never been subject to the long
standing pervasive discrimination that has been
inflicted on blacks and certain other minorities.
Hernandez v. Texas, 347 U.S. 475, 478-79 (1954).
Not only, as in Hunter, do whites not need such
redress, but as a practical matter they would
not qualify for it were it available to all
victims of discrimination. Title VII, moreover,
would not prevent an employer from using a benefi
cent quota or program to help people who suffered
in the past from physical disabilities, illness,
- 51
or discrimination on the basis of age or political
views. Only women and racial minorities as a
practical matter would be cut off from such
assistance. The prohibition created by the Fifth
Circuit is far more restrictive than that in
Hunter, in which the court struck down a city
charter provision that established special re
quirements for enacting an open housing ordinance
but still permitted the adoption of one. Here
the purported prohibition against race-conscious
employer redress is absolute.
Both the states and federal government are
free to enact, and repeal, laws providing remedies
for victims of discrimination. Railway Mail
Association v. Corsi, 326 U.S. 88 (1945). But this
Court has never upheld legislation prohibiting
voluntary steps to provide such redress. Cer
tainly the remedial measures required by the
Constitution of a public entity to redress its own
discrimination cannot be prohibited. North
Carolina Bd. of Ed. v. Swann, supra. We submit
that voluntary private action to redress the
discrimination of others is also protected by
the Fourteenth Amendment. The Thirty-Ninth
Congress which framed the Fourteenth Amendment
clearly approved the numerous private organiza
- 52 -
tions, generally known as Freedmen's Societies,
which were actively engaged after the Civil War in
providing special relief and assistance, including
education and job training, to blacks. That
Congress enacted a series of race-conscious
federal programs intended to operate jointly with
those private efforts, and the Fourteenth Amend
ment was seen as providing a constitutional basis
for this federal activity.— ^Moreover, the men
who framed the Amendment acted against a long
history of federal efforts under the Fugitive
Slave Act to prohibit private assistance to
24/runaway slaves,— and were determined to reverse
the past role of the federal government from
obstructing to assisting such private efforts.
For the first century after Emancipation,
private race-conscious voluntary action to
remedy discrimination by others was virtually
23/ Brief of the N.A.A.C.P. Legal Defense and
Educational Fund, Inc., as Amicus Curiae, No.
76-811, pp. 10-53.
24/ J. TenBroek, Equal Under Law, 57-65 (1951);
the 1850 Fugitive Slave Act provided civil and
criminal liability for anyone assisting a runaway
slave. 11 Stat. 462, § 7.
- 53
the only form of redress available to blacks.
Today such activities remain of vital importance.
Congress could not conceivably prohibit charities
or private foundations from attempting through
race-conscious programs to alleviate the effects
of discrimination. In B63 an employer in Louisi
ana, had it had the courage to break with local
prejudice, could have offered employment to a
black man or woman in a good faith effort to
redress in a limited way a lifetime of discrimina
tion at the hands of state officials or other
private employers. Congress did not have the power
to prohibit such a beneficent act, and there is no
reason to believe it intended to do so.
Even if Title VII as construed by the Fifth
Circuit is not unconstitutional per se, it cer
tainly would be in many instances. As construed
below Title VII prohibits a private employer from
using a race-conscious program to remedy unconsti
tutional discrimination by state or federal
officials. Both state and federal officials were
involved in the funding and supervision of the
Louisiana vocational schools which, as we note
infra pp. 93~94, denied certain craft training
- 5 4 -
to blacks because of their race; the history of de
jure discrimination in Louisiana public schools is
well known. The likely impact of these practices
on blacks who might have sought work at Kaiser is
readily apparent. Cf. Gaston County v. United
States, 395 U.S. 285 (1969). For most of the
victims of that government discrimination the only
effective remedy available would be the sort of
training and employment program offered by Kaiser;
to forbid that would be to perpetuate the very
discrimination which the Fourteenth Amendment was
enacted to prohibit.
But an employer could not ordinarily deter
mine whether the past discrimination whose burden
an applicant still bore was sufficiently tainted
by state action to place it outside the permis
sible scope of Title VII. "The question of
whether particular discriminatory conduct is
private, on the one hand, or amounts to 'state
action, ' on the other hand, frequently admits of
no easy answer," Moose Lodge No 197 v. Irvis, 407
U.S 163, 172 (1972). An employer cannot reason
ably be expected to conduct the necessary investi
gation into the history of each applicant and of
- 55
the state where he or she was educated and trained
If required to guess at its peril whether the past
discrimination inflicted on a particular applicant
involved state action, the possibility of lia
bility to a rejected white would deter all but the
hardiest of employers from providing race-con
scious redress to any blacks at all. Such a
chilling effect on constitutionally protected
activity is impermissible. See N.A.A.C.P.
v. Button, 371 U.S. 415, 433 (1963).
Title VII, moreover, now applies to state and
local governments; in the Fifth Circuit's view
Louisiana and New York are also forbidden to use
race-conscious employment programs to aid victims
of private discrimination in their own states or
public discrimination in any other state.
National League of Cities v. Usery, 426 U.S. 833,
847 (1976), expressly warned against federal
interference with voluntary local affirmative
action plans, and Gaston County noted that, where
neutral state practices would perpetuate past
discrimination, there seemed little "legal sig
nificance" to whether that discrimination had
occurred in another state. 395 U.S at 293 n. 9.
56
Title VII could not constitutionally restrict the
power of a state or local government to remedy
such discrimination by, for example, the 1973
Louisiana statute requiring that affirmative
action be taken in filling new positions in
vocational training schools "[wjhenever the ratio
of members of the minority to majority race
employed at all levels in the schools is substan
tially out of keeping with the minority to major
ity race ratio of persons in the region...." La.
Rev. Stat. Ann. §1996C. Title VII should be
construed to avoid this difficulty, and, since the
statute on its face makes no distinction between
public and private employers, the same construc
tion should apply to both.
III. THIS AFFIRMATIVE ACTION PLAN IS
PERMISSIBLE UNDER TITLE VII
A. The Plan Was Properly Instituted
The Industrial Relations Superintendent for
Kaiser's Grammercy plant stated in general terms
the reasons why Kaiser and the Steelworkers
instituted their plan:
... the Company ... [and] the Union, looked
around and read the Court decisions being
- 57
made. We looked at the settlement that
had just been made with the steel industry
and the steel companies. We looked at the
large sums of money that companies were
being forced to pay, and we looked at our
problem, which was that we had no blacks in
the crafts, to speak of. A. 83.
While Kaiser neither admitted that it had dis
criminated in the selection of craftsmen nor
introduced detailed evidence concerning its
self-examination, the need to solve this "problem"
— when viewed in the light of Kaiser's employment
practices — justified, and even compelled,
the adoption of an affirmative action plan. The
25/joint Company-Union Committee— which reviewed
the representation of minority and female employ
ees in the trade, craft and maintenance classifi
cations. in Kaiser plants agreed that this repre
sentation "must be increased in order to assure
full compliance with the standards presently being
enunciated by the Government and recent court
25/ The Master Aluminum Agreement obligated a
joint Company-Union committee to review the
representation of minority and female employees in
craft jobs. A. 139-55 (Joint Ex. 2). The parties
did not introduce any evidence concerning the
scope of that review.
- 58
decisions". A. 145 (Joint Ex. 2). —
Kaiser and the Steelworkers had four inde
pendent but interrelated justifications for the
adoption of an affirmative action plan: (1) to
provide a remedy for prior discriminatory prac
tices; (2) to avoid engaging in current discrimi
natory practices; (3) to provide a remedy for the
discriminatory practices of others in the training
and development of craft workers ; and (4) to
ensure compliance with Executive Order 11,246.
1. Kaiser's Prior Discrimination. The
district court determined that the evidence did
not establish that Kaiser had discriminated either
in hiring or in the selection of craft employees.
G. Pet. 64a-65a. The court of appeals majority
26/ Kaiser officials described in some detail
the reasons why the affirmative action plan was
necessary and lawful: (1) as a "direct result of
employment discrimination over the years [and]
the lack of opportunity on the part of the blacks
• . .", black craftsmen were unavailable, A. 90
(Bouble), see also A. 93, 108 (Bouble), A. 63
(English) (specifically describing discrimination
in the building trade programs); (2) recruiting
efforts to attract a representative number of
skilled black craftsmen had been unsuccessful, A.
91 92 (Bouble), A. 63 (English); (3) the Company
- 59 -
noted the district court's finding and stated that
the "appellants [Kaiser and the Steelworkers] all
but concede that Kaiser has not been guilty of
any discriminatory hiring or promotion" practices
(footnote omitted). G. Pet. 17a. Of course, as
Judge Wisdom stated, "no litigant wanted to see
past discriminaton found." G. Pet. 34a. Cer
tainly neither Kaiser nor the Steelworkers would
directly admit prior discrimination against
black workers in order to prevail in this lawsuit ;
such an admission would only invite a lawsuit by
black workers which might result in substantial
monetary liability, see pp. 31-34, supra.
The lack of adversity of interest among the
parties concerning a central factual issue — the
existence, or a reasonable basis for believing
26/ Cont 'd
had a "fear of the consequences" of suits on
behalf of black employees brought by private
parties or the federal government, A. 84; (4) the
Company had been under considerable pressure from
the Office of Federal Contract Compliance, A.
93-94 (Bouble), see p. 104 n.86, infra; (5) the
plan was considered "remedial . . . [for] dis
crimination in the past, not ours, per se, but the
total sum and substance of education and training
to obtain skills, that created a situation that
called for a remedy such as the one we derived out
of our discussions [with the Union]," A. 98
(Bouble).
- 60 -
in the existence, of prior discrimination —
raises serious questions concerning the justici
ability of this action, see Section II B, supra.
Moreover, the absence of any litigant with an
interest in coming forward with proof of prior
discrimination creates serious evidentiary prob
lems which are illustrated by the failure of the
parties in this case to introduce relevant and
available evidence concerning the possible exis-
27/tence of prior discrimination.— These eviden
tiary problems require that, in such cases
as this, the courts must carefully scrutinize the
evidence because it is not in the interest of any
27/ For example, the parties did not introduce
any evidence on the following important issues
concerning the question of prior discrimination at
the Kaiser plant: (1) the findings by the Office
of Federal Contract Compliance concerning the
discriminatory practices at Kaiser and its recom
mendation for remedying the effects of those
practices, see pp. 77, 103, infra; (2) the existence
of segregated facilities; (3) the racial composi
tion of the supervisory staff and whether there
were any controls concerning the exercise of
supervisory discretion, see pp. 76 n.42, infra;
(4) the census data concerning the availability of
skilled craft workers in the labor force, see
p. 66 n.31, infra; (5) actual job descriptions,
- 61
party to develop a full factual record on the
possible existence of prior discrimination. See
Chayes, The Role of the Judge in Public Law
Litigation, 89 Harv. L. Rev. 1281, 1296-97 (1976).
Furthermore, the courts in such cases should use
their full authority to take judicial notice of
relevant facts:
Appellate courts have a special need to
resort to facts not found in the record.
When the question before the Court is not
merely the rights of the parties, but the
27/ Cont'd
qualifications and pay rates for craft jobs; (6)
the qualification standards, employment testing,
education requirements, etc., if any, which Kaiser
has used in selecting applicants for hire, see
p. 80-81, infra; (7) the actual application of
the standards for the selection of craftsmen prior
to 1974, see p. 76 n.42, infra; (8) any justifica
tion for the use of a five or three year "prior
industrial experience" requirement for selection
as a craftsman prior to 1974, see p. 69, infra;
(9) the date when the five year experience
standard for hire into the craft positions was
reduced to three years, see p. 69 n.32, infra;
(10) the details, including the chronology, of
Kaiser's self-described active recruiting efforts
for black craftsmen, see p. 76 n.41, infra; (11)
the method for the selection of craftsmen in 1974
which appears to be in violation of the affirma
tive action plan, see p. 110, infra.
- 62
interests of others who may be affected by
the rule the Court makes to govern the case,
it would be foolish for the Court to
rely only on the evidence the parties have
chosen to prove below.28/
In this case, and in others like it, it is
critical that the courts take proper judicial
notice of relevant facts because the litigants do
not have an interest in the full presentation of
the evidence ; the substantial rights of persons
who are not parties to the lawsuit are affected;
and the authority of the federal government to
achieve the national policy of equal employment
29/opportunity is at issue.—
28/ 21 Wright and Graham, Federal Practice and
Procedure §5102 at 462-63 (1977); see also
Weinstein, 1 Evidence 1200[03].
29/ The Court extensively relied on judicial
notice in an analogous case, Regents of the
University of California v. Bakke, supra, 57
L.Ed.2d at 784-88, 790-92 (opinion of Powell,
J.), 821-26 (opinion of Brennan, White, Marshall,
Blackmun, JJ.). See also, Roe v. Wade, 410 U.S.
113, 130-147, 149 (1973); Keyes v. School Dis
trict No. 1, 413 U.S. 189, 197 (1973); Beauharnais
v. Illinois, 343 U.S. 250, 258-61 (1952); Moore v.
East Cleveland, 431 U.S. 494, 508-09 & n.4 (1977)
(Brennan, J., concurring); cf. United States v .
Carolene Products Co., 304 U.S. 144, 148-50
(1938).
- 63
The evidence, when properly viewed, indi
cates that Kaiser had a reasonable basis for
believing that it had engaged in discriminatory
practices and that it was required to formulate
a remedial affirmative action plan. Moreover,
the evidence establishes, contrary to the legal
conclusion of the district court, a prima facie
case of discrimination with respect to (a)
Kaiser's selection of craftsmen, (b) Kaiser's
operation of the craft training program prior to
1974, and (c) Kaiser's employment of industrial
workers. However, since the proper standard is
whether Kaiser had a reasonable basis to believe
that its practices were discriminatory and not, as
the lower courts, held, whether there was suffi
cient proof to establish a violation of the fair
employment laws, it is not necessary to reverse
the conclusion of no discrimination — although
incorrect — in order to reverse the judgment.
Statistical proof plays an important role in
judicial and administrative determinations of
whether practices violate the fair employment
laws. Similarly, a statistical analysis may
provide a reasonable basis for an employer to
conclude that its prior employment practices were
- 64 -
discriminatory and that affirmative action is
appropriate. See pp. 36-37, supra. In contested
litigation, evidence of statistical disparity
may provide the basis for a prima facie showing of
discrimination within two separate theoretical
frameworks. Under the first theory, that of
adverse impact, the plaintiff "need only show that
the facially neutral standards in question select
applicants for hire in a significantly discrimina
tory pattern." Dothard v . Rawlinson, supra, 433
U.S. at 329. "There is no requirement ... that a
statistical showing of disproportionate impact
must always be based on analysis of the character
istics of actual applicants." Id_. at 330. If
adverse impact of the standard is demonstrated,
the employer must meet "the burden of showing that
any given requirement [has] ... a manifest rela
tionship to the employment in question." Griggs
v . Duke Power Co. , supra, 401 U.S. at 432.
Once the employer meets this burden, the plaintiff
may then show that other standards which have less
or no discriminatory effect would also "serve the
employer's legitimate interest in 'efficient and
trustworthy workmanship."' Albemarle Paper
Co. v. Moody, supra, 422 U.S. at 425.
- 65
Under the second theory, that of disparate
treatment, proof of discriminatory motive is
required but in some circumstances motive can be
inferred from the "mere fact of differences in
treatment," Teamsters v. United States, supra, 431
U.S. at 335 n.15, 339-340 n.20; the significance
of this difference may be demonstrated by a
statistical evaluation, Hazelwood School District
v. United States, supra, 433 U.S. at 308-09 n. 14,
311 n.17. The burden then shifts to the defendant
to demonstrate that the plaintiff's proof is
"either inaccurate or insignificant." Teamsters
v. United States, supra, 431 U.S. at 360. Evalua
tion of the statistical evidence here indicates
that there was a reasonable basis to believe that
Kaiser discriminated in its practices regarding
the selection and training of craftsmen and the
employment of industrial workers under both the
adverse impact and the disparate treatment theo
ries .
a. Selection of Craftsmen. Prior to the
institution of the affirmative action program
Kaiser employed 273 craft workers at its Grammercy
- 66
plant, of whom only 5 or 1.83% were black.—
A. 167 (K. Ex . 3) . The large majority of these
craftsmen were employed "off the street" rather
than being trained at the plant ; only 28 craftsmen
were trained by Kaiser prior to 1974. See p.
78, infra. In order to be hired as a craftsman,
an applicant was required to have five years
of "prior industrial experience"; this requirement
was reduced, at some unspecified time, to three
years. A. 70 (English).
Kaiser obtained most of its workforce from
two parishes, St. James and St. John the Baptist,
which had a combined general population which was
46% black, and a workforce which was 39% black.
30/
30/ The Superintendent of Industrial Relations
at Kaiser's Grammercy Plant, Dennis English,
testified that prior to the 1974 Agreement "we had
about a two to one and a half percent minority ...
we had a total of five ... [The total number of
craft employees was] somewhere around 290, at that
time." A. 62. We have selected the precise
figure on the statistical exhibit rather than the
approximation of Mr. English for the purposes of
the statistical calculations. However, the result
would be approximately the same with either set of
numbers.
- 67
A. 60.-- It is apparent that the selection
process, including the use of the prior indus-
31/
31/ The actual census data were not introduced
by the parties in this case. The 1970 census
figures for St. James and St. John the Baptist
Parishes' show that the black proportion of the
"blue collar" work force was actually 40.6%, not
39%. The census shows the following racial
breakdowns for the workforce, U.S. Bureau of the
Census, Census of Population: 1970, Vol. 1:
Characteristics of the Population, Part 20,
Louisiana, Table 122 (hereinafter "Census") :
St. James St. John the Baptist
% %
TOTAL BLACK BLACK TOTAL BLACK BLACK
Total
Employ-
ees 4,976 2,014 40.5 6,321 2,312 36.6
Crafts 783 179 22.9 1,246 253 20.3
Opera-
t ives 1,290 517 40.1 1,425 612 42.9
Laborers 456 343 75.2 665 479 72.0
Blue
Collar 2,529 1,039 41.1 3,336 1,344 40.3
- 68 -
trial experience requirement, had a substantial
adverse impact on black workers. While blacks
31/ C o n t ' d
St. James &____St. John the Baptist Combined
%
TOTAL BLACK BLACK
Total
Employ-
ees 11,297 4,326 38.3
Crafts 2,029 432 21.3
Opera
tives 2,715 1,129 41.6
Laborers 1,121 822 73.3
Blue
Collar 5,865 2,383 40.6
These figures include all the employed persons in
these occupational categories. (The blue collar
category is the sum of the totals in the craft,
operative and laborer categories). There are
no published census data by parish for the "expe
rienced" workforce which would include unemployed
as well as employed persons; nor are there pub
lished data by parish which divide the craft
category into sub-categories, e.g., electricians,
carpenters, as there are for states and Standard
Metropolitan Statistical Areas, see nn. 37-38,
infra.
- 69
were 39% of the labor force, they were only 2% of
the craftsmen employed at Kaiser. Thomas Bouble,
who for eight years had been Kaiser's Director of
Equal Opportunity Affairs and who had been em
ployed by Kaiser for nineteen years, stated that,
as a result of discrimination in employment
and training opportunity, blacks were underrep
resented in skilled crafts "in every industry in
the United States, and in every area of the United
States." A. 90. Moreover, blacks "until just
recently ... did not get into [the] building trade
[training] programs" which provided a substantial
portion of the training opportunity for craft
positions. A. 63 (English), A. 104 (Bouble); see
also pp. 88-103, infra.
Since this prior experience requirement
had an adverse racial impact, the burden in
litigation would fall on Kaiser to establish the
"business necessity" or manifest job relationship
of the requirement. See p. 64, supra. There is
no evidence concerning the business necessity of
this requirement. Nor is it likely that Kaiser
could show any manifest job relationship for this
apparently arbitrary requirement: the require
ment was changed from five years to three years
70
without any apparent harm;— the requirement
for prior industrial as opposed to other relevant
experience — e.g., in the armed forces, as a
private contractor, etc. — seems unjustifiable;
and the application of the same requirement
across-the-board to craft positions which varied
33/greatly— does no-t appear to be validly related
to the job requirements of each position. Thus,
the evidence indicates that under the adverse
impact principle of Griggs and Albemarle Paper,
Kaiser had reason to believe that it had violated
34/Title VII.— 7
Moreover, the Company had reason to believe
that its craft selection practices also consti
tuted a violation of Title VII under the disparate
32/
32/ The record does not indicate when the re
quirement was changed.
33/ At the Grammercy plant, Kaiser employed
craftsmen in the following occupations: General
Repairman, Air Conditioner Repairman, Insulator,
Carpenter-Painter, Garage Mechanic, Machinist,
Electrician, Instrument and Electrical Repairman.
A. 167 (K. Ex. 3).
34/ The district court stated that the low pro
portion of blacks in the plant's craft population
71
treatment principle set forth in Teamsters and
Hazelwood School District. See pp. 64-65, supra.
While Company officials testified that trained
blacks were "unavailable" despite Kaiser's active
recruiting efforts, A. 62-63 (English), A. 90, 93
(Bouble), they did not refer to any census data in
support of their assertion. In fact, the census
34/ Cont ’d
"might suggest that Kaiser had discriminated
against blacks when filling craft positions." G.
Pet. 65a. The court then concluded that this
showing of discrimination was rebutted by the mere
fact that Mr. English, the Industrial Relations
Superintendent, had testified that Kaiser had
vigorously sought black craftsmen. Li. Even if
Mr. English's protestation of good faith recruit
ment is accepted — and there is considerable
doubt concerning the recruitment efforts, see pp.
76-77 infra — this conclusion is contrary to
applicable law. "Congress directed the thrust of
the Act to the consequences of employment prac
tices, not simply the motivation," Griggs v. Duke
Power, supra, 401 U.S. at 432. The district
court's failure to consider the "consequences" of
the prior experience requirement was plain error.
In fact, in a case involving another Kaiser plant
the Fifth Circuit reversed a district court's
finding of no discrimination on almost identical
facts, Parson v. Kaiser Aluminum, supra, 575 F.2d
at 1389-90.
72
data show— that the proportion of blacks working
in crafts at Kaiser (approximately 2%) was dis
proportionately low when compared to the available
proportion of trained blacks listed in the
"craftsmen and kindred workers" category in the
workforce for the parishes of St. James and St.
John the Baptist (21.3%), see p. 66 n.31, supra,
for the state of Louisiana (16.0%)— ^or for the
35/
35/ This Court has taken judicial notice of
census data when determining whether there is a
prima facie case of employment discrimination.
See Griggs v. Duke Power, supra, 401 U.S. at
430 n.6; cf. Dothard v. Rawlinson, supra, 433
at 329-30; see also Watkins v. Scott Paper
530 F. 2d 1159, 1185 n.36 (5th Cir. )
U.S
Co.
denied, 429 U.S. 861 (1976).
36/ Loui siana: Total White Black
cert.
Percent
Black
Total ex
perienced
labor force 1,217,334
Craftsmen
and kindred
workers
Carpenters
177,770
18,193
903,556 311,110 25.6
149,039 28,464 16.0
14,278 3,884 21.3
- 73 -
Standard Metropolitan Statistical Areas of the
• • 37/cities of New Orleans (18.7%)— and Baton Rouge
Percent
Total White Black Black
36/ Cont ' d
Mechanics &
Repairmen 37,627 32,096 5,493 14.6
Electricians 7,967 7, 713 242 3.0
Census. Table 172.
37/ New Orleans ;
Total ex
perienced
labor force 386,0 7 2 281,715 103,234 26.7
Craftsmen
and kindred
workers 52,433 42,522 9, 792 18.7
Carpenters 4,366 3,196 1,165 16.7
Mechanics &
Repairmen 11,029 9,430 1,589 14.4
Electricians 2,713 2,590 118 4.3
Census, Table 172.
- 74 -
(17.8%) ''
When the statistical analysis adopted by this
Court in Castaneda v. Partida, 430 U.S. 482
(1977), and Hazelwood School District, supra, is
38/ Baton Rouge:
Total
Total ex-
perienced
labor force 106,600
Craftsmen
and kindred
workers 16,639
Carpenters 1,292
Mechanics &
Repairmen 3,085
Electricians 800
Percent
White Black Black
78,780 27,663 30.0
13,674 2,960 17.8
850 442 34.2
2,596 489 15.9
781 19 2.4
Census, Table 172.
- 75
applied to the disparity between the proportion of
blacks in the craft positions in the plant and the
proportion of blacks in the workforce of the
parishes, of the State of Louisiana, or of the
39/Baton Rouge or New Orleans SMSA,— the results
indicate a prima facie case of intentional dis
crimination. This analysis shows that there is a
difference of 7.8 standard deviations between the
actual number of blacks hired as craftsmen by
Kaiser and the number one would expect as a result
of nondiscriminatory hiring from a labor market
consisting of the parishes of St. James and St.
40/John the Baptist— and a difference of 6.4
39/ These workforces have been chosen in addition
to the workforce of St. James and St. John's
parishes because Kaiser's officials stated that
they actively recruited craftsmen throughout the
area and specifically in Baton Rouge and New
Orleans. A. 62. Moreover, the published census
data for the parishes do not divide the "crafts
men" category into sub-categories of "carpenters,"
"mechanics and repairmen" and "electricians."
40/ This statistical model measures fluctuations
from the expected value in terms of the standard
- 76
standard deviations if the labor market includes
the entire state of Louisiana. A fluctuation of
more than two or three standard deviations "under
cut [s] the hypothesis that decisions were being
made randomly with respect to race," Hazelwood
School District, supra, 433 U.S. at 311 n.17. In
fact, even if the black proportion of the avail-
40/ Cont 1 d
deviation, which is defined as the square root
of the product of the total number in the sample
(here, 273) times the probability of selecting a
black (.213) times the probability of selecting a
non-black (.787). The standard deviation based on
the workforce of the two parishes is 6.8.
The difference between the expected (.213 x
273 = 58) and observed number of blacks hired
during this period is 53, which is 7.8 standard
deviations ([58-5] divided by 6.8 = 7.8). Cas-
taneda v. Partida, supra, 430 U.S. at 496-97. The
likelihood that a comparable craft workfor^ would
occur by chance is less than 1 in 10 . On
average, in only one of more than one hundred
million trillion randomly selected groups each
containing 273 craftsmen recruited from this
workforce would there be a group containing
five or fewer blacks. This statistic was derived
from the binomial probability distribution. See
Mosteller, Rourke, Thomas, Probability with
Statistical Applications, 130-146 (1970); Finkel-
stin, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 Harv.
L. Rev. 338, 353-357 (1966).
77
able pool of skilled workers had been 8% — i.e.,
half of that which the census data indicate for
Louisiana — there would have been a difference of
3.7 standard deviations between the actual number
and the expected number of black craftsmen at the
Grammercy plant.
Although the availability of trained black
craftsmen was much greater than Kaiser's super
intendent asserted, it was, as he also indicated,
much less than would be expected absent discrimi
nation in employment and training programs
in the area. The superintendent's mere statement
that Kaiser engaged in an active minority recruit
ment program — a statement which was required in
order to avoid a direct admission of discrimina
tory practices — does not rebut the prima facie
41/ .case.— The statistical disparities indicate
41/ Kaiser did not present specific evidence
concerning the scope, duration or application of
its recruitment efforts. In fact, the Office
of Federal Contract Compliance in a 1971 letter to
the Grammercy plant manager, indicated that
"Kaiser had not been effective in utilizing
minority recruitment sources" and that "affirma-
78
that, whatever the intention of Kaiser's top
management, the selection practices for craftsmen
were applied in a racially disparate manner at the
Grammercy p l a n t /
41/ Cont 'd
tive action as required by the OFCC regulations
has not been taken to identify and attract minor
ity applicants..." The 1971 findings by the OFCC
were lodged by the United States with the Clerk of
the Court, see G. Pet., p. 18 n.6,
42/ There was no evidence placed in the record
concerning who administered the selection system,
or what controls, if any, existed to insure that
the system was being applied fairly and without
discrimination. However, a 1973 OFCC "review
of persons transferring into the maintenance
crafts (all Caucasians) revealed that several
Caucasians did not possess the required prior
experience for such transfers...." The OFCC
Memorandum dated January 31, 1973, was lodged by
the United States with the Clerk of the Court,
see G. Pet., p. 18 n.7.
At the Company's plant in Chalmette, Louisi
ana, where black workers had brought a lawsuit
alleging unlawful discrimination, there was also a
prior experience requirement for entry into craft
positions. The Fifth Circuit observed that
"[tjhere is some evidence in the record that this
requirement is not consistently applied and that
decisions to waive or modify it are within the
79
b. Craft Training Programs. During the
period from 1964 through 1971, the Company at
various times operated on-the-job training pro
grams for the positions of general repairman and
carpenter-painter. A. 136 (Stipulation pp. 2-3).
An employee was required to have three years of
prior experience in the applicable job "category"
in order to enter the training program for general
43/ J rrepairman— and one year of prior experience to
enter the program for carpenter-painter. During
the operation of these programs, seventeen train
ees were enrolled in the general repairman program
and eleven trainees were enrolled in the car
penter-painter program. Only two of the twenty-
eight trainees, both in the carpenter-painter
program, were black. Id.
42/ Cont 'd
discretion of the supervisor involved in the
hiring practice," Parson v. Kaiser Aluminum,
supra, 575 F.2d at 1381.
43/ Although the prior experience requirement was
modified in 1971 to permit employees with two
years of prior experience to enter the program,
there was only one trainee in 1971. A. 126
(Stipulation p. 2).
- 80 -
This low proportion of blacks in the training
programs (7%) compared to the proportion of blacks
in the workforce (39%) demonstrates the adverse
impact of the Company's selection practice. See
Griggs v. Duke Power Co., supra, 401 U.S. at
430 n.6; Dothard v. Rawlinson, supra, 433 U.S.
at 329. The prior experience requirement was a
ready mechanism for discriminatory exclusion of
blacks from the craft training programs as well as
from direct entry into the craft positions. See
pp. 67-70, supra. While there was some evidence
concerning the cost of the training programs and a
indication that this cost would be reduced by
selecting persons with prior experience, these
statements do not establish a "business necessity"
for the use of this discriminatory requirement.
G. Pet. 36a (Wisdom, J., dissenting).— ^
44/ The district court ignored the discriminatory
training program. The appellate court majority
attempted to dismiss this proof of prior discrimi
nation by concluding "that this program was so
limited in scope that the prior craft experience
cannot be characterized as an unlawful employment
practice," G. Pet. 17a n.13. Title VII does not
countenance a discriminatory practice because it
"only" has an impact on a few individuals: "It is
clear beyond cavil that the obligation imposed by
Title VII is to provide an equal opportunity for
- 81
c. General Hiring Practices, Kaiser also
had a reasonable basis for believing that it had
engaged in prior discriminatory practices in its
general hiring procedures. G. Pet. 35a (Wisdom,
J. , dissenting):
The evidence showed that although 39 percent
of the area workforce was black, only 14.8
percent of Kaiser's employees in 1974 were
black. That was an increase from around 10
44/ Cont 'd
each applicant regardless of race . . . ." Furnco
Construction Corp. v. Waters, 57 L. Ed.2d 957, 969
(1978); see also G. Pet. 37a (Wisdom, J., dissent
ing); Rowe v. General Motors Corp., 457 F.2d 348,
354 (5th Cir. 1972) ("The degree of discrimina
tion . . . is unimportant under Title VII.
Discriminations come in all sizes and all such
discriminations are prohibited by the Act").
In fact, Kaiser's affirmative action plan had
not even remedied the "small" discrimination
in the training program. If Kaiser's program had
operated in a racially neutral manner, then one
would expect that approximately ten of the
trainees (the black proportion of the workforce,
39%, multiplied by the number of positions, 28)
would have been black. Since only two blacks were
trained, the approximate number of blacks who were
discriminatorily denied this training opportunity
was eight. Through trial, only seven blacks had
been selected for the training program under the
affirmative action plan.
- 82
percent in 1969. The testimony that Kaiser
had hired "the best qualified" before 1969
left open the possibilities that Kaiser had
determined qualifications through nonvali-
dated tests, or impermissibly subjective
processes. The statistics here constituted a
prima facie case of discrimination. (Foot
note omitted.)
The increase in the black proportion of
employees at the plant resulted from the adoption
by Kaiser in 1969 of a plan for hiring one black
for each white hired until the black proportion of
the plant workforce was comparable to the black
proportion of the outside workforce. A. 82, 87
(English). This plan was adopted by Kaiser upon
the recommendation of OFCC personnel who found
after a review of the plant that Kaiser "had a
relatively low percentage of minorities in the
workforce." A. 82. While the affirmative action
plan for hiring removed the adverse impact or
disparate treatment from Kaiser's post-1969
initial selection procedures, the severe disparity
between the proportion of blacks in the plant,
10-1 1%, — and the proportion of blacks in the
45/ The parties stipulated that in 1969 minor
ities constituted "10 or 11 percent" of the plant
workforce. A. 49.
- 83
outside workforce, 39%, constituted a prima facie
case of pre-1969 hiring discrimination. Griggs v .
Duke Power Co. , supra, 401 U.S. at 430 n.6 ;
Dothard v. Rawlinson, supra, 433 U.S. at 329.
Discrimination in hiring is directly related to
discrimination in the selection for craft train
ing not only, as Judge Wisdom stated, G. Pet. 35a,
"because in the absence of that discrimination,
more blacks could have entered a training program
based solely on seniority," but also because the
institution of a new training program in which
selection was based upon date of hire seniority
would perpetuate the discrimination in hiring and
might well constitute a new violation of the fair
employment laws.
2. Modification of Kaiser's Present Prac
tices . In addition to remedying prior discrimi
natory practices, an employer has an affirmative
obligation to insure that its present practices do
not constitute on-going discrimination. An
employer does not satisfy this obligation by
merely determining that its practices were devel
oped and implemented without racial animus, but
- 8 4 -
must also consider the racial effects of those
practices. Kaiser was required not only to cease
its reliance on "prior industrial experience" in
selecting and training craftsmen, see pp. 63-65,
supra, but also to insure that its new practices
were free from discriminatory effect. Kaiser
faced a difficult challenge in designing a work
able system. The difficulty was created by the
longstanding discriminatory practices of employers
in the industry (including Kaiser), of public
educational institutions, and of unions which all
contributed to blacks being severely underrepre
sented in the craft labor force, see pp. 89-103,
infra. If Kaiser had continued to rely solely
upon affirmative recruitment to attract a repre
sentative proportion of black craftsmen, it would
have "end[ed] up baying at the moon, as it were."
A. 93 (Bouble) xhe development of a program
to train inexperienced employees or new hires was
46/ While Kaiser officials underestimated the
availability of black craftsmen, it is clear that
they were correct in their general conclusion that
discrimination in employment and education had
restricted training opportunities and that blacks
were underrepresented in the skilled workforce.
- 85 -
was the only realistic way for Kaiser to select
craftsmen in a manner which would not have an
adverse racial effect. A. 64-66 (English).
In order for Kaiser to lawfully hire skilled
c^sftsmen from a labor force which was dispropor
tionately composed of white workers, it would have
had to develop valid, job-related measures for
evaluating relevant experience or skill.— '' But
even if Kaiser could demonstrate that the ex
perience requirement was job-related, the require
ment would still be unlawful if there were a
selection system which had a less discrimi
natory effect and which would also have "serve[d]
• . . [its] legitimate interest in 'efficient and
trustworthy workmanship'." Albemarle Paper Co.
v. Moody, supra, 422 U.S. at 425. Here an alter
native system was available: a training program.
While Kaiser may have been able to develop and
47/ When an employer uses the prior "experience"
of applicants as a selection criterion the em
ployer must show, if the criterion has an adverse
racial impact, that it is a valid selection
procedure. Uniform Guidelines on Employee Selec
tion Procedures, 29 C.F.R. §§1607.3, 1607.16Q.
- 86
support a lawful experience requirement, the
decision to remove the discriminatory effect from
its selection procedure by instituting a training
program was a proper method of complying with
Title VII.— /
Employers must be given the clear option of
removing the adverse effect of selection practices
rather than being required to engage in poten
tially expensive and possibly ineffective efforts
to validate selection criteria. Otherwise, the
national goal of assuring equal employment
opportunity will not be realized in the foresee
able future. Kaiser's decision to adopt a program
48/ See Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. §1607.6. In order to
remove the adverse impact from its selection
practices, Kaiser would be required to select
blacks for approximately 39% of its trainee
positions, the black proportion of the area
workforce. Thus, at least for the Grammercy
plant, Kaiser's affirmative action plan — which
included a ratio of one black for each white hired
— operated primarily to remove the adverse
effect of nonvalidated selection practices rather
than to remedy prior discriminatory practices.
- 87
to train inexperienced black and white workers
rather than to concentrate its resources on an
attempt to justify pre-existing practices for
selecting "experienced" workers — which clearly
would have resulted in few blacks being hired
— is precisely the type of responsible business
decision that is required for the effective
implementation of Title VII.
Moreover, if Kaiser had continued to hire
49/"experienced" craftsmen despite its knowledge—
49/ Kaiser officials acknowledged that discrimi
nation in training programs limited the supply of
black craftsmen, and that this was one of the
basic reasons for the institution of the affirma
tive action plan. Furthermore, the OFGC brought
this matter directly to the attention of the plant
manager. After noting that in 1971 there was not
a single black craftsman at the plant, the OFCC
stated that "[maintenance craft training programs
are needed; the qualification and potential of
minorities presently employed at Kaiser should be
reviewed and those determined to be eligible
should be given high priority for such training,
any direct hiring into these classifications
should include at least the minority ratio that
exists in the company's recruitment area." Letter
dated January 25, 1971, to Mr. Melancan, plant
manager, from Guy W. McCarty, Chief Contract
Compliance Officer, see p.78 n.42, supra.
- 88 -
that the availability of experienced black workers
was severely limited because of discrimination in
admission to industry and union training programs,
it would have been potentially liable for inten
tional discrimination. See Village of Arlington
Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 265-68 (1977); Washington v. Davis,
426 U.S. 229, 241-42 ( 1976);— ''see pp. 64-65,
_sup£a_. Kaiser could not avoid liability by
assigning the discriminatory animus to the unions
or to the other companies which operated craft
training programs. If Kaiser, rather than insti
tuting an affirmative action training program, had
continued to select "experienced" craftsmen by
relying on the discriminatory training programs in
its recruitment area, and if this process had
resulted, as could be expected, in the selection
of a low proportion of black workers, Kaiser's
50/ "Frequently the most probative evidence of
intent will be objective evidence of what actually
happened rather than evidence describing the
subjective state of mind of the actor. For
normally the actor is presumed to have intended
the natural consequences of his deeds." Washing-
ton v. Davis, supra, 426 U.S. at 253 (Stevens,
J., concurring) .
- 89
practices would constitute a prima facie showing
of an intentional violation of the fair employment
laws. H Z
3. General Discrimination in the Training
and Development of Craft Workers. Kaiser's prior
selection practices — including its selection of
craft workers from the pool of qualified crafts
men who had "prior industrial experience" and who
frequently were trained in programs operated by
the construction trade unions — must be examined
in light of the longstanding practices of deliber-
ate discrimination in the crafts.— These prac
tices contributed directly to the present problems
of the disproportionately high rate of black
unemployment and the limited availability of black
craftsmen. Given the effects of decades of dis
crimination, it was difficult if not impossible
31/ See e . g . , Commonwealth of Pennsylvania
— * Local 542, Operating Engineers, Civil Action
No. 71-2698, (E.D. Penn., Nov. 30, 1978), Slip
Opinion at 122-143 (Higginbotham, J.).
52J Kaiser officials did, in fact, examine their
practices in this light. See pp. 56-58, supra.
- 9 0 -
for Kaiser to adopt racially neutral selec
tion procedures for craft positions which did not
severely limit the employment opportunities of
black workers. Facially neutral employment
practices often have an adverse racial effect
because discrimination by educational institutions
and by other employers and unions has limited the
skills and experience which black workers have
been permitted to acquire. In many circumstances
it is unlawful for employers to ignore the effects
of such practices, see pp. 69-71, supra, and in
all circumstances it is a national policy of the
highest priority to encourage voluntary action to
remedy those effects , see pp. 38-40, supra.
For a hundred years prior to the passage of
the Civil Rights Act of 1964 the workplace for
blacks was marked by deliberate practices designed
to restrict them to specific positions in the job
market and to eliminate them altogether from the
53/skilled trades.-- By the end of the Civil War
blacks constituted the great majority, approxi-
53/ The history of this period is by necessity
summarized in this brief. A full historical
- 91
mately 80%, of all skilled tradesmen in the
54/South.-- The predominance of blacks in the
skilled trades directly resulted from the fact
53/ Cont 'd
discussion of blacks and the workplace may be
found in Spero and Harris, The Black Worker
(Atheneum ed. , 1968) (hereinafter "Spero and
Harris"); and a brief but thorough discussion may
be found in Myrdal, An American Dilemma (Harper &
Row ed., 1962) at 1079-1124 (hereinafter "Myrdal").
A thorough discussion of black workers during
the period from World War I through World War II
is found in Weaver, Negro Labor, A National
Problem (1964) (hereinafter "Weaver"), and of
blacks in labor unions in Marshall, The Negro and
Organized Labor (1965) (hereinafter "Marshall");
Marshall and Briggs, The Negro and Apprenticeship
(1967) (hereinafter "Marshall and Briggs"); and
Northrup, Organized Labor and the Negro (1944)
(hereinafter "Northrup"). For more recent
discussions, see Hill, Black Labor and The Ameri
can Legal System: Race, Work and the Law (1977),
and Gould, Black Workers in White Unions (1977).
54/ Spero and Harris, p. 16; Myrdal, p. 1101.
- 92
that slaves with skills had a greater market value
and could produce additional income .— ^The
post-Civil War period saw the development of
extensive efforts to limit or eliminate the
opportunity for black workers to use their skills
or to acquire new ones
After the Civil War blacks were excluded by
law or practice from practically all apprentice
57/programs.-- Moreover, blacks were assigned to
55/ Spero and Harris, pp. 5-6; Myrdal, pp. 887,
1100- 1101.
56/ There had been attempts prior to the Civil
War to limit the opportunities of blacks to work
as craftsmen. For example, the Georgia Legisla
ture passed a law in 1845 making it a criminal
offense for a "white person ... [to] contract or
bargain with any slave, mechanic or mason, or free
person of color, being a mechanic or mason ...,"
quoted in Spero and Harris, p. 8. However,
these efforts were generally unsuccessful because
of the political and economic power of the slave
owners, id., pp. 7-9. Myrdal, p. 1101.
57/ The enactment of the Black Codes regulated
the conditions of freedmen's labor and subjected
them to the control of their former masters or
other white men. Myrdal, p. 228. For vocational
- 93
vocational schools which "seldom fitted them for
the current demands of the so-called 'Southern
58/Industrial Revolution'."— 'Accordingly, blacks
were effectively precluded from entrance into
formal training programs.
Blacks continued to be assigned to segregated
and inferior vocational education schools until
well after Brown v. Board of Education, 347 U.S.
57/ Cont 'd
example, in December of 1865, the South Carolina
Legislature passed an Act providing "that no
person of color shall pursue or practice the
art, trade, or business of an artisan, mechanic,
or shopkeeper, or any other trade, employment, or
business, (besides that of husbandry, or that of a
servant under a contract for service or labor, ) on
his own account and for his own benefit, or in
partnership with a white person .. until he shall
have obtained a license therefor from the judge of
the district court...." McPherson, The Political
History of the United States of America During the
Period of Reconstruction, (Reprinted 1969), p. 36.
These codes were abolished during Reconstruction
but they later reappeared in various forms.
Myrdal, p. 228.
58/ Hall, Black Vocational, Technical and In
dustrial Arts Education (American Technical
Society 1973), p. 19; Weaver, p. 41.
- 94 -
438 (1954). The "usual practice in the South,
... has been to have segregated vocational
schools where Negroes are trained only for
5 9 /occupations they have traditionally held."--'
"The Negro industrial high schools in the South
... had little or no equipment, and their grad
uates were seldom prepared to earn a living in a
skilled trade.. It was the practice for these
vocational high schools "to provide training
in those occupations that Negroes could get
employment in, in [the] community. ̂This
standard, which perpetuated existing patterns of
employment discrimination, was approved by HEW as
62 /late as 1961.— 'For example, as of 1961 in the
New Orleans areas there were four vocational
education high schools. In the one school
which admitted blacks to its training programs,
the apprentice courses available were for carpen
ters, cement masons, plasterers and lathers:
"The program is limited to these trades as they
59/ Marshall, p. 135.
60/ Weaver, p. 41.
61J United States Commission on Civil Rights,
Employment (1961), p. 97.
62/ Id.
- 95
are the ones to which Negroes have access".— 'The
trade schools which were exclusively for white
students offered apprentice courses for boiler
makers, carpenters, mi Ilmen, electrical workers,
glaziers, iron workers, painters, plumbers,
steamfitters, sheet metal workers, machinists and
64/operating engineers.-- In Louisiana m 1961
there were twenty-seven vocational education
schools, twenty-three reserved exclusively for
whites and four exclusively for blacks .-^-^The
66 /pattern remained in effect into the 1970s.—
Moreover, as unions, especially in the
crafts, increased their control and influence in
63 /
63/ State Advisory Committee, United States
■Commission on Civil Rights, 50 States Report
(1961), p. 209.
64/ Id.
65/ Id.
66/ The statistics provided by HEW for "students
and faculty in Louisiana's vocational schools ...
show seven schools as overwhelmingly black and 25
schools as overwhelmingly white. Many of the
schools operated by State departments of education
are obviously segregated." Adams v. Richardson,
351 F.Supp. 636, 639 (D.D.C. 1972).
- 9 6 -
the labor market during the period after 1900,
the access of black workers to training programs
and skilled positions became even more limit
ed.— ^Many of the A.F.L. unions excluded blacks
by express constitutional provision or by ritual
68/requirements.— ■ Other unions denied admission to
blacks or restricted their access to jobs by a
series of "unwritten" practices It is im
portant to note that all of the crafts "are not
equally bad."— '■ In the older crafts such as the
67/ Myrdal, p. 1102.
68/ Karson and Radosh, "The American Federation
of Labor and the Negro Worker, 1894-1949,"
in The Negro and the American Labor Movement (ed.
Jacobsen, Anchor 1968), pp. 157-58. These
unions included several, like the Machinists, the
Boilermakers, and the Iron and Shipbuilders, which
operated apprentice programs.
69/ Id. , 158; Marshall, "The Negro in Southern
Unions," in The Negro and the American Labor
Movement (ed. Jacobsen, Anchor 1968), p. 145;
"Unions in the newer occupations like the plumbing
and electrical trades have been able to bar
Negroes from their unions and from better jobs in
the industry through their control of apprentice
ship training and their influence with some
licensing boards." See Northrup, pp. 23-37.
70/ Myrdal, p. 1102.
- 97
carpenter, painter and trowel trades, where black
workers had traditionally been established, they
were able to maintain, although on a diminishing
basis, access to training and jobs.— ̂But black
workers never had a chance to enter the newer
occupational categories, or those which increased
greatly during the industrialization of the South,
e.g., plumber, electrician, machinist. The craft
unions that controlled or influenced employment in
these occupations severely restricted or totally
excluded black entry, see nn.69-70, supra ; as
a result, blacks were unable to obtain a share of
the increased employment opportunities in the
twentieth century, see pp. 100-102, infra. The
persistence into the 1970s of these discriminatory
practices is confirmed by the extraordinary
number of judicial findings of Title VII viola-
72/tions by craft unions.—
71/ Id., 1101-1102, Northrup, pp. 26-41.
72/ "Judicial findings on discrimination in
crafts are so common as to make it a proper
subject for judicial notice." G. Pet. 46a n.18
(Wisdom, J., dissenting). See United States
- 98 -
Finally, traditional patterns of discrimina
tion and segregation by management contributed to
the exclusion of blacks from craft positions and
industrial training programs.
Employers traditionally have felt that
Negroes were 'suited' mainly for hot, dirty,
or otherwise disagreeable jobs. Histori
cally, management has been willing to hire
Negroes for white jobs only where they would
work for lower wages than whites or would act
as strikebreakers or otherwise help prevent
unionization.73/
72/ Cont'd
Commission on Civil Rights, The Challenge Ahead
(1976), pp. 58-94 (summarizing judicial findings
of discrimination by craft unions).
73/ Marshall and Briggs, p. 34. "Virtually all
these 'Negro job' industries have the common
feature that they are regarded as undesirable from
one or several viewpoints. Many of them carry a
social stigma, particularly in the South, where
they tend to be despised not only because they are
located at the bottom of the occupational ladder,
but also because of the very fact that they are
traditionally 'Negro jobs."' Myrdal, p. 1080.
- 99
While in the last fifteen years there have been
changes in these traditional attitudes, various
practices have served to perpetuate the prior
74/systems of segregation.— The racial allocation
of jobs, and especially the limitation on the
opportunity of black workers to move into craft
• • . 75/positions m industrial plants, have persisted.—
73/ Cont 'd
"Outside capital which promoted the South's
industrialization adhered closely to the color-
caste system of the region. The occupational
patterns which evolved were in accord with
this basic principle: clean, light, well-paid jobs
for whites and heavy, dirty, lower paid jobs for
Negro." Weaver, p. 6; see pp. 7-8.
74/ "The influence of industrial unions has been
mainly to perpetuate job segregation by formal
izing separate seniority lines and resisting
changes which would make it possible for Negroes
to be transferred and promoted on the basis of
seniority." Marshall, "The Negro in Southern
Unions," in The Negro and the American Labor
Movement (ed. Jacobsen 1968), p. 143.
75/ See, e.g., James v. Stockham Valves & Fit
tings Co. , 559 F.2d 310, 340-45 (5th Cir.) cert.
denied, 434 U.S. 1034 (1978); Pettway v. American
100
As a result of these deliberate practices of
discrimination, the proportion of blacks employed
as skilled craftsmen decreased substantially from
1865 through 1940 .— ^Moreover, a pattern devel-
75/ Cont'd
Cast Iron Pipe Co., 494 F.2d 211, 236-39 (5th Cir.
1974) ; Robinson v. Union Carbide Corp., 538 F.2d
652, 661 (5th Cir. 1976); Stevenson v. Interna
tional Paper Co. , 516 F . 2d 103, 116 (5th Cir.
1975) ; United States v. Bethlehem Steel Corp., 446
F.2d 652, 655 (2d Cir. 1971).
76/ For the period 1865 through 1890, see Myrdal,
p. 1101. For the period from 1890-1940, see
Northrup, pp. 18—19:
2 890 1910 1940
%Black % Black % Black
Carpenters
Painters
Bricklayers
Plumbers
Electricians
3 5.6
3 2.2
47.0
52.5
not available
not available
not available
23.2 13. 7
25.3 14.5
54. 7 31.5
66.5 54.5
15.5 1 1 . 1
2. 9 1.5
26.3 15.2
Plasterers and
Cement Finishers
Total
101
oped which remains a serious problem: during times
of economic slowdown, black workers lose what
little gains they may have made and their un
employment rate increases much faster than that of
white workers^While black workers experienced
significant employment gains during the war years,
1942-1944, almost half of black workers who were
employed in war industries, a much greater propor
tion than for white workers, were employed in
areas of acute labor shortage. Accordingly, black
workers were far more likely than white workers
7 8/to be laid off after the war.--'Furthermore,
"[i]n the South, the occupational color-caste
system was so firmly entrenched that even in the
majority of tight labor markets [during the War],
there were but slight relaxations" in the barriers
79/to black employment.—
77/ See Weaver, pp. 8-15 for a discussion
of the effects of the Depression on black workers.
"Almost a half of the skilled Negro males in the
nation were displaced from their usual types of
employment during the period 1930 to 1936; a
third of those outside their usual occupations
were in unskilled work, and over 17 percent were
unemployed." Id., p. 9.
78/ Weaver, pp. 86-87 and 78-93.
79/ Id., p. 92.
102
From 1950 through 1965 the position of black
workers continued to deteriorate relative to that
of white workers. "Declining employment opportu
nities in jobs traditionally open to them, to
gether with population shifts which increased the
number of young Negro males, caused these groups
to experience declining relative labor force
participation rates, rising unemployment rates,
and declining relative incomes during these
years."——y In 1965, after reviewing these figures
and the projection that the non-white labor force
was expected to rise at a substantial greater
rate than the whits labor force, then Professor
Marshall empahsized "the urgency of the need to
80/ Marshall and Br iggs, p.3. For example,
"[a]fter having been consistently less than
double the white rates before 1957, non-white
unemployment rates were cnsistently more than
double those of whites after 1957. In 1948,
teen-age male unemployment rates were 7.6 percent
for non-whites and 8.3 percent for whites; in
1965, these relative positions were reversed
and the teen-age male unemploment rates were
2 2 . 6 percent for non-whites and 1 1 . 8 percent
for whites." _Id_. , p.3 n.2 (emphasis in original).
- 103
get more Negroes into the skilled trades."—
Unfortunately, while the enactment passage and
enforcement of Title VII, the enforcement of The
Executive Order, and the adoption of voluntary
affirmative action have had some positive ef-
82 /feet,— the continued discriminatory practices
and the operation of many businesses and unions
according to traditional patterns have prevented
the necessary significant increase of black work-
8 3 /ers in the skilled trades.— The urgency remains;
responsible affirmative action by companies like
Kaiser and unions like the Steelworkers must
8 1 /
81/ Id., p. 4.
82/ See generally, United States Commission on
Civil Rights, The Challenge Ahead (1976).
83/ See p. 99 nn. 74-75, supra. See also The
Challenge Ahead, supra, 26-31. "In summary, the
effect of intentional and direct employment
discrimination in the building trades continue to
be severe. The proportion of unions that neither
discriminate directly nor intentionally or that do
not continue to use widely practiced institutional
mechanisms that adversely affect the employment
opportunity of minorities and women is unfortu
nately quite small", Id. at 94 (footnote omitted).
- 104
be firmly supported if the longstanding practices
of deliberate employment discrimination and their
effects are to be finally terminated.
4. Compliance with the Executive Order. As a
substantial government contractor, Kaiser was
and is obligated to comply with the requirements
of Executive Order No. 11,246. These requirements
include the adoption of goals and timetables for
minority participation where there is an "under
utilization" of minorities in the contractor's
workforce. 41 C.F.R. §60-2 (remand Order No.4).
OFCC officials warned Kaiser in J971 that its plan
for compliance with the Executive Order contained
"deficiencies" and that Kaiser should provide
specific plans for correcting these deficien-
84/cies.-- One OFCC recommendation to Kaiser --
which was very similar to the plan adopted — was
that the Company establish a craft training
program; selection for the program "should include
at least the minority ratio that exists in the
84/ Letter dated January 25, 1971, to Mr. Melan-
can, plant manager, from Guy W. McCarty, Chief
Contract Compliance Officer, see pp. 77-78 n.41,
supra.
- 105
company's recruitment area"; and "the figure of 50
percent would be used as the minority population
ratio in the area from which Kaiser draws its
w o r k f o r c e I n compliance review sessions,
OFCC personnel repeatedly criticized Kaiser's
craft selection practices and suggested that
86/alternatives be adopted.— ■
Kaiser acted consistently with the provisions
of the Executive Order and Revised Order and with
the recommendations of OFCC personnel when it
adopted race-conscious provisions for its affirma
tive action plan. Cf. United Jewish Organization
v. Carey, 430 U.S. 144 (1977). This independent
justification for the plan is only briefly
discussed because the United States has intervened
in this lawsuit in part to support enforcement
85/ Id.
86/ The Director of Equal Employment Affairs for
Kaiser testified that, "... I don't think I have
sat through a compliance review where it wasn't
apparent that there was few, if any, minorities in
the craft occupations, and there was always,
certainly the suggestion, on the part of the
compliance review officers, that we devise and
come up with medhods and systems to change that
particular thing." A. 93.
106
efforts under the Executive Order. However, it is
important to emphasize that the race-conscious
procedures of Revised Order 4 for enforcing
the Executive Order were only added after twenty-
seven years of enforcement experience demonstrated
87/the ineffectiveness of alternative approaches.— '
37/ The Committee on Government Contract Compli
ance established by President Truman reported in
1953 that under the initial Executive Orders, the
non-discrimination clauses had become "almost
forgotten, dead and buried under thousands of
words . . .." Sovern, Legal Restraints on Racial
Discrimination in Employment, Appendix G at
254 (1966) (partial reprint). Changes made in
the Executive Order program during the 1950s did
not improve compliance because of "[t]he indif
ference of employers to establishing a positive
policy of non-discrimination ,..." Committee on
Government Contracts, Pattern for Progress: Final
Report to President Eisenhower, p. 14 (1960)
(emphasis in original). As a result of this
finding, Executive Order No. 10,925, 3 C.F.R. 443
(1959-63 Comp.), included a provision that
"[t]he Contractor will take affirmative action to
ensure that applicants are employed, and that
employees are treated during employment, without
regard to their race, creed, color or national
origin." The refinement of the concept of affir
mative action into a more effective tool for
insuring equal employment opportunity and for
107
B- The Plan Was Properly Designed
1. The Plan
In 1974 Kaiser and other major aluminum
companies entered into an industry-wide "master"
agreement with the Steelworkers. The agreement
provided, inter alia, that (a) a joint company-
union implementation committee would review all
existing craft classifications "with respect to
their representation of minority and female
employees"; (b) in filling craft and assigned
maintenance jobs including training or apprentice
positions, "not less than one minority or female
employee will enter for every non-minority em
ployee entering, including, if necessary, off the
street hires, until the goal is reached unless at
a particular time there are insufficient available
87/ Cont 'd
providing remedies for discriminatory practices
led to the adoption of the present race-conscious
enforcement provisions. See, e.g., Associated
General Contractors of Mass., Inc, v. Altshuler,
490 F.2d 9, 12-14 (1st Cir. 1973), cert, denied,
416 U.S. 957 (1974); Contractors Ass'n of Eastern
Pennsylvania v. Secretary of Labor, supra, 442
F,2d at 170—71. See Jones, The Bugaboo of
Employment Quotas, 1970 Wis. L. Rev. 341.
108
qualified minority and/or female candidates"; (c)
a minority goal was to be established at each
plant according to the availability of minorities
in the relevant workforce, the goal for women was
set at 5%. A. 145 (Joint Ex. 2).— ^For the
Grammercy plant a minority goal of thirty-nine
percent was established for each craft family. G.
8 9/Pet. 63a (opinion of the district court).—
88/ These goals represented "the parties' best
estimates of the initial goals to be achieved,
recognizing that these goals may change as future
Court government decisions are rendered." Id.
It should be noted that the goals were
established for each of six "craft families." A.
14-5 (Joint Ex. 2). Thus, if the goal for minor
ity representatives was attained for the "car
penter craft family," the entry ratio for those
craft jobs would cease, but the entry ratio for
the "electrician craft family" would continue
until the goal for minority representation in that
craft family had been attained. Id_. This was a
sensible arrangement ; while there had been dis
crimination against minorities with respect to
entry into all crafts, the discrimination was more
severe in some crafts, e.g., electrician, than
in others, e.g., carpenters, see pp.96-97 supra.
89/ In the application of the master agreement to
the Grammercy plant there was provision only for
109
This lawsuit resulted from the application
of this plan to the Grammercy plant during 1974.
Thirteen trainees for the apprentice positions
were selected under the affirmative action plan —
90/seven black workers and six white workers.— The
89/ Cont'd
the selection of one minority for each non-minor
ity for craft jobs. G. Pet. 62a (Op. district
court). There is no explanation in the record why
women were not included. A Kaiser official
testified that women, like minorities, had "cer
tainly" been denied training opportunities. A. 90
(Bouble).
90/ In April 1974, there were nine training
openings which were posted for bid, in May one
opening, and in October three openings. The chart
below summarizes the training programs available
and the race of the trainees selected. A. 166 (K.
Ex. 2); G. Pet 63a (op. district court).
Number of Number of Total
Blacks Whites
April
Instr. Repairman 1 1 2
Electrician 1 1 2
General Repairman 3 2 5
no
Company followed the affirmative action plan in
filling the training vacancies on an alternating
basis: the first training vacancy was awarded to
the black worker who had the greatest amount of
plant seniority among the black workers who had
submitted bids for the job; the second vacancy was
similarly awarded to the white worker who had the
greatest amount of plant seniority among the white
workers who had submitted bids for the job. A.
72-75 (English). In each of the seven instances
where black workers were selected for the appren
tice positions, at least one white worker was
passed over who had greater plant seniority than
the black worker who was selected. G. Pet.
63a-64a (op. district court).
90/ Cont'd
Number of Number of Total
Blacks Whites
May
Air Conditioner
Repairman 1
1
October
Carpenter 1 1 2
Insulator 1 1
Total 7 6 13
Ill
It is important to note that during 1974,
Kaiser hired twenty-two experienced craftsmen
in addition to its selection of thirteen appren
tices. A. 65. Only one of these twenty-two
craftsmen was black. Id_. There was no explana
tion as to why Kaiser selected twenty-seven
white workers as craftsmen or apprentices and only
eight black workers as craftsmen or apprentices
despite the fact that it had a contractual obliga
tion to fill "apprentice and craft jobs ... at a
minimum [with] not less than one minority employee
91 /. . . for every non-minority employee ...."— G.
Pet. 62a (opinion of district court). During 1974
91/ Since the agreement went into effect on
February 1, 1974, G. Pet. 62a, it is highly
unlikely that all twenty-two of the craftsmen
hired during 1974 were selected prior to the
institution of the plan. The only possible
explanation for the disparity, apart from Kaiser's
having violated the agreement, was that "quali
fied" minority candidates were unavailable, and
that Kaiser had an immediate requirement for
additional craftsmen. However, if Kaiser was using
the "prior industrial experience" requirement to
determine which craftsmen were qualified and if
Kaiser was using the same selection practices
in 1974 that it had used prior to 1974, then there
is reason to believe that Kaiser was violating not
only the agreement but also Title VII, see pp.
69-76, supra.
112 -
there was a marked disparity, even with the
affirmative action plan, between the proportion of
blacks selected for craft and apprentice posi
tions, 23%, and the proportion of blacks in the
workforce of St, James and St. John the Baptist
Parishes, 39%. After the application of the
affirmative action plan for one year, there was an
increase in the proportion of black craftsmen or
apprentices at the plant, from 1.83% to 4.43%. A.
167 (Kaiser Ex. 3).
2. The Standard and Its Application
An employer or union must not only have a
reasonable basis for undertaking affirmative
action, but it must also design measures which are
appropriately related to the problems to be
92/corrected.— It is not possible to anticipate
92J "The action taken pursuant to an affirmative
action plan or program must be reasonable in
relation to the problems disclosed by the self
analysis. Such reasonable action may include
goals and timetables or other appropriate employ
ment tools which recognize the race, sex, or
national origin of applicants or employees. It may
include the adoption of practices which will
eliminate the actual or potential adverse impact,
disparate treatment, or effect of past discrimina
tion by providing opportunities for members of
groups which have been excluded, regardless of
whether the persons benefited were themselves the
113
all the circumstances which would require the
implementation of a race-conscious plan nor all
the forms that a plan may take. The nature of the
plan and its justification will vary according to
the circumstances. But it is possible, as
the EEOC has done in its Guidelines on Affirmative
Action, to establish some guides for unions
and employers to follow in designing proper
93/plans.— The standard for determining whether a
92 / Cont'd
victims of prior policies or procedures which
produced the adverse impact or disparate treat
ment or which perpetuated past discrimination."
EEOC Guidelines on Affirmative Action, 29 C.F.R.
§1608.4(c).
93/ "In considering the reasonableness of a
particular affirmative action plan or program, the
Commission will generally apply the following
standards: (i) The plan should be tailored to
solve the problems which were identified in the
self analysis, see §1608.4(a), supra, and to
ensure that employment systems operate fairly in
the future, while avoiding unnecessary restric
tions on opportunities for the workforce as a
whole. The race, sex, and national origin con
scious provisions of the plan or program should be
maintained only so long as is necessary to achieve
these obectives. (ii) Goals and timetables should
be reasonably related to such considerations as
114 -
particular kind of action is appropriate, like the
standard for determining whether there is a
reasonable basis for the institution of affirma
tive action, must be flexible and designed to
encourage voluntary implementation of measures
which will effectively remedy discriminatory
practices. The plan adopted by Kaiser and the
Steelworkers was properly designed and implemented
for several compelling reasons.
a. The remedy established by the plan —
including the use of a ratio to insure a proper
timetable for the remedy and the establishment of
a goal to insure a proper duration for the
plan — has been repeatedly approved by courts
. . 94/m litigated cases— - and in negotiated settle-
93/ Cont ' d
the effects of past discrimination, the need for
prompt elimination of adverse impact or disparate
treatment, the availability of basically qualified
or qualifiable applicants, and the number of
employment opportunities expected to be avail
able." 29 C.F.R. §1608.4(c)(2).
94/ See cases cited at pp. 18-19 nn.5-7, supra.
See also Boston Chapter, NAACP, Inc, v. Beecher,
504 F. 2d 1017 (1st Cir.) cert, denied, 421 U.S.
- 115
ments.— Furthermore, this form of race-con
scious affirmative action has been adopted or
9 5 /
94/ Cont'd
910 (1975); Associated General Contractors of
Mass., Inc, v. Altshuler, 361 F.Supp. 1293 (D.
Mass), aff'd ., 490 F.2d 9 (1st Cir.), cert.
denied, 416 U.S. 957 (1974); Bridgeport Guar
dians, Inc, v. Bridgeport Civil Service Commis
sion, 482 F.2d 1333 (2nd Cir. 1973), cert. denied,
421 U.S. -991 (19 7 5); Rios v. Enterprise Associa
tion Steamfitters Local 638, 501 F.2d 622 (2d Cir.
1974); United States v. Wood Lathers Local 46, 471
F. 2d 408 (2d Cir.), cert, denied, 412 U.S. -939
(1973); Erie Human Relations Commission v. Tullio,
493 F. 2d 371 (3rd Cir. 1974); 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); EEOC v, Detroit Edison Co.,
515 F. 2d 301 (6th Cir.), vac and rem. 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 (6 th Cir.
1973); United States v. City of Chicago, 549 F. 2d
415 (7th Cir.), cert, denied, 434 U.S 875 (1978);
Crockett v. Green, 534 F. 2d 715 (7th Cir. 1976);
Southern Illinois Builders Association v. Ogilvie,
471 F.2d 680 (7th Cir 1972); United States v. N.L.
Industries, Inc., 479 F. 2d 354 (8th Cir. 1973).
95/ See, e ,g. , EEOC v . A .T .& T . Co. , 556 F. 2d 167
(3rd Cir.), cert, denied, 57 L.Ed.2d 1161 (1978);
- 116
approved by the federal agencies charged with
96/enforcing the Executive Order,— Title VII and
97/other fair employment provisions.— In fact, in
adopting their plan Kaiser and the unions properly
relied on the general requirements of the Execu
tive Order and related judicial decisions and on
the specific requirements which were instituted in
the closely analogous situation involving the
nationwide settlement in the steel industry, see
pp. 56 - 58, supra. The adoption of the plan was
consistent with the judicial decisions, the
government regulations and the steel industry
98/consent decree.—
95/ Cont'd
United States v. Allegheny-Ludlum Industries,
Inc., 517 F. 2d 826 (5th Cir.), cert, denied, 425
U.S. 944 (1976).
96/ See Section I, supra and pp. 103-05, supra.
97/ See Sect ion I, supra.
98/ The majority below inaccurately distinguished
the approval of the consent decree on the ground
that there was a showing of "massive discrimina
tory practices" in the steel industry. G. Pet.
- 117
b. The affirmative action plan was appro
priately designed to remedy the effects of prior
discriminatory practices and to insure that the
Company and the Steelworkers did not engage
in continuing discriminatory practices. Past
craft selection practices of Kaiser had a severe
adverse racial impact; despite the fact that
blacks constituted 39% of the workforce and a
substantial portion of the skilled workforce, they
were practically excluded from entry into craft
positions, see pp. 65-78, supra. If no affirmative
action plan had been instituted, then blacks would
have continued to be excluded from the craft jobs.
Moreover, the plan was an interim measure designed
98/ Cont'd
4a. In fact, there was no evidence submitted in
that case concerning the discriminatory practices
in the steel industry nor was there an admission
by the steel companies or the Steelworkers that
they had engaged in unlawful practices, United
States v. Allegheny-Ludlum Industries, Inc., 63
F.R.D. 1 (N.D. Ala. 1973). The effect of the
lower court's standard requiring such evidence or
such an admission would be not only to discourage
voluntary affirmative action but also to dis
courage negotiated settlements in contested
litigation.
- 118 -
to terminate after redressing prior discriminatory
practices. Finally, the development of an
expanded training program in conjunction with the
plan was a responsible social action designed to
provide some remedy for the discriminatory prac
tices by business, unions, and others which had
substantially limited the employment opportunities
of blacks in the craft trades.
c. The affirmative action plan did not
unnecessarily restrict the employment opportuni
ties, nor frustrate the existing job expectations,
of white workers. In fact, the plan actually
increased these opportunities. G. Pet. 41a-42a
(Wisdom, J., dissenting). A craft training
program which was open to all incumbent workers,
white as well as black, regardless of their prior
experience in the crafts, was instituted as a
basic part of the affirmative action plan. In the
small training programs which Kaiser had operated
between 1964 and 1971, employees had been eligible
only if they had one to three years of prior craft
experience, see p. 79, supra. Weber had never
submitted a job bid for one of these prior train
- 119
ing programs because he did not have the requisite
experience. A. 38 , 43 (Weber).— Weber admit
ted that under the new program he, and other white
workers, had expanded training and employment
opportunities. A. 51. Ironically, were it not
for the affirmative action plan, Weber would
never have had the opportunity to become a crafts
man at Kaiser ; under the program he will have that
opportunity.
d. The affirmative action plan was the
product of collective bargaining between the
Steelworkers and Kaiser. Collective bargaining
is the cornerstone of federal labor policy, United
Steelworkers of America v. American Mfg. Co.,
363 U.S. 564 (1960), and central to that policy is
the principle of majority rule. NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937). However,
"Congress did not . . . authorize a tyranny of the
99/ "There were prior training programs, but I
was not allowed to participate because I didn't
have the training required by the company, at that
time." A. 38. The single class member who
testified, Fortune Moran, had submitted a bid for
one of the prior training programs ; but he had
been rejected because he lacked the requisite
prior experience. A. 56.
- 120
majority over minority interests." Emporium
Capwell Co. v. Western Addition Community Organi
zation, 420 U.S. 50, 64 (1975). A union has a
duty to fairly represent its minority members and
to bargain in a manner consistent with "the
national labor policy [which] embodies the
principles of non-discrimination as a matter of
highest priority." Id. at 66. The union's "duty
to bargain in good faith for all its members does
not prevent it from fairly advancing the national
policy against discrimination, even if it requires
assisting some of its members more than others."
Franks v. Bowman Transportation Co., supra, 424
U.S. at 778-79.
Kaiser understood that it had a serious
problem: its selection practices had resulted
— and without a race-conscious training program
would continue to result — in the employment
of disproportionately few black workers in the
craft positions. See pp. 56-57, supra. In accord
ance with its collective bargaining obligation,
Kaiser raised this issue with the bargaining unit
representative, the Steelworkers. For many years,
one of the Steelworkers' collective bargaining
goals was the establishment of an extensive craft
- 121
training program which would be open to employees
who had no prior experience. A. 85 (English). If
Kaiser had simply selected craft trainees from
the area workforce which was 39% black, it could
have achieved in effect, with some affirmative
recruiting, its plan to enlist one minority for
each non-minority without any specific numerical
provisions in its affirmative action plan. But
the selection of new hires for the training
program ran counter to the Union's longstanding
interest in expanding employment and training
opportunities for incumbent workers.
The compromise which was agreed upon — the
affirmative action plan — allowed both parties to
attain the goals which they had brought to the
bargaining table. The Company established a
realistic plan for increasing its force of black
craftsmen and the Union expanded the job opportu -
nities for all the workers at the plant. This
creative and cooperative resolution of a grave
social as well as industrial problem furthered
both the national policy favoring collective
bargaining and the national policy favoring
the voluntary correction of discriminatory employ
ment practices. Such solutions should be strongly
supported.
- 122-
CONCLUSION
The amici urge that the affirmative action
plan instituted by Kaiser and the Steelworkers be
approved and that the judgment of the United
States Court of Appeals for the Fifth Circuit be
reversed.
Respectfully submitted,
VERNON E. JORDAN, Jr.
500 E. 62nd Street
New York, N.Y. 10021
WILEY A. BRANTON
THEODORE A. MILES
Howard University
Law School
2935 Upton St., N.W.
Washington, D.C. 20005
JACK GREENBERG
JAMES M. NABRIT, III
ERIC SCHNAPPER
LOWELL JOHNSTON
PATRICK 0. PATTERSON
KRISTINE S. KNAPLUND
CLYDE E. MURPHY
10 Columbus Circle
Suite 2030
New York, N.Y. 10019
BARRY L. GOLDSTEIN
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005
January, 1979.
MEILEN PRESS IN C — N. Y. C, M9