Carson v. American Brands, Inc. Brief Amicus Curiae of the Equal Employment Advisory Counsel in Support of Petitioners

    J i

In T he

Jiutytm tu' (Eiu trl irf tl}V I m t r f t  l^tatws
October Term, 1978

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

United Steelworkers of A merica, AFL-CIO-CLC,
Petitioners,v.

Brian F. W eber, et al .,
Respondents,

Kaiser A luminum & Chemical Corporation,
Petitioner,

Brian F. W eber, Respondent,

United States of A merica and Equal E mployment
Opportunity Commission,

Petitioner,v.
Brian F. W eber, et al.,

_ _ _ _ _ _ _  Respondents,
BRIEF FOR THE LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

Charles A. Bane 
T homas D. Barr 

Co-Chairmen
Norman Redlich 

Trustee
Robert A. Murphy 
Richard T. Seymour 
Norman J. Chachkin 
Richard S. Kohn 

Staff Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 - 15th Street, N.W. 
Suite 520
Washington, D.C. 20005 

Attorneys for Amicus Curiae

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , d . C.  2 0 0 0 1



Table of Authorities ....... .......................... ............... ......  hi

Interest of Amicus C u riae ........................... ........ ....... .........  1
Introductory Statement.............     2
Summary of Argument........................................... ...... ._ 5
Argument ........      7

I. FEDERAL CONTRACTORS ARE IMMUNE 
FROM LIABILITY UNDER TITLE VII 
WHEN THEY CREATE AFFIRMATIVE 
ACTION PROGRAMS TO MEET THEIR 
OBLIGATIONS UNDER EXECUTIVE OR­
DER 11246 .................................................   7
(1) Executive Order 11246_____   7

(a) Congress knew that Executive Order
11246 expressly provided for the use of 
quotas to ensure that blacks were not 
excluded from jobs created by the ex­
penditure of federal funds ______ ____  8

(b) Congress did not regard the Executive
Order as conflicting with Title VII..... 12

(2) The standard of review for validating af­
firmative action programs established by 
government contractors to meet their obli­
gations under Executive Order 11246 .........  16
(a) Kaiser was justified in instituting a

race conscious affirmative action plan 
under either the prima facie case 
standard or the “ underutilization” 
standard  _______________ _____ _____  18

(b) The two track seniority system used
at the Gramercy plant was the least 
restrictive viable alternative ...... ........  21

TABLE OF CONTENTS
Page



II

TABLE OF CONTENTS— Continued
Page

II. EXECUTIVE ORDER 11246 IS A VALID EX­
ERCISE OF THE EXECUTIVE POWER 
WHICH SERVES COMPELLING GOVERN­
MENTAL INTERESTS ................... ..................  23

(a) Executive Order 11246 was issued pur­
suant to statutory authority and has 
the force and effect of law _____ ______  23

(b) In authorizing racial quotas to increase 
minority representation in the skilled 
crafts, Executive Order 11246 serves a 
compelling governmental interest and 
does not violate the due process clause
of the Fifth Amendment......................  25

Conclusion ...... ..... ............... ....... ................................... . 29



Ill

TABLE OF AUTHORITIES
Cases: Page

Atkin V. Kansas, 191 U.S. 207 (1903) _____ ____  26
Albemarle Payer Co. v. Moody, 422 U.S. 405

(1975) ...................................... .................. ....... . 21
Alexander v. Gardner-Denver Co., 415 US 36

(1974) .......... ........ .......... .................................. . 4
Associated General Contractors of Massachusetts 

V. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert.
denied, 416 U.S. 957 (1974) ................... ............  29

Berenyi v. District Director, Immigration and
Naturalization Service, 385 U.S. 630 (1967)....  4

Bolling v. Sharpe, 347 U.S. 497 (1954) .............. . 25
Burrell v. Kaiser Aluminum & Chemical Cory.,

Civ. Action 67-86 (M.D. La.) (consent decree
Feb. 24, 1975) ______     2,28

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) 
on petition for rehearing en banc), cert, denied,
406 U.S. 950 (1972) .......... ...... ........ ............... . 22

Contractors Association of Eastern Pennsylvania 
V. Secretary of Labor, 442 F.2d 159 (3rd Cir.
1971), cert, denied, 404 U.S. 854 (1971) .........7,23,29

Equal Employment Opportunity Commission v. 
American Telephone & Telegraph Co., 556 F.2d
167 (3rd Cir. 1977) .......... ....... ........ ................. . 8, 16

Ellis v. United States, 206 U.S. 246 (1907) ...... . ’ 26
Farkas V. Texas Instruments, Inc., 375 F.2d 629 

(5th Cir. 1967), cert, denied, 389 U.S. 977
(1967) _____ ______________ ____________________ 23

Farmer v. Philadelphia Electric Co., 329 F.2d 3
(3rd Cir. 1964) __________ _____ ______ _____  23

Green v. McDonnell Douglas Cory., 411 U S 792
(1973) .............................. ..................................  19

Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 21
In re Griffiths, 413 U.S. 717 (1973) .......................  25
Lochner v. New York, 198 U.S. 45 (1905) _______  26
Northeast Construction Co. v. Romney, 157 U.S.

App. D.C. 381, 485 F.2d 752 (1973) .............. . 24
Parson v. Kaiser Aluminum & Chemical Cory., 575

F.2d 1374 (5th Cir. 1978) .................................2,21,28



IV

Perkins V. Lukens Steel Co., 310 U.S. 113 (1940).. 26
Regents of the University of California V. Bakke,

57 L. Ed.2d 750 (1978) ........... ....... .................. . 18,25
Rhode Island Chapter, Association of General Con­

tractors v. Kreps, 450 F. Supp. 338 (D.R.I.
1978) ........................ ......................... ............... . 28

Rossetti Contracting Co. v. Brennan, 508 F.2d 1039
(7th Cir. 1974) ________ _____ ______ __________  24

Stevenson V. International Paper Co., 516 F.2d 103
(5th Cir. 1975) .................. .................... ..............  17

Swint V. Pullman-Standard, 539 F.2d 77 (5th Cir.
1976) ............ ..... ................. .......... .... ............ ....  17

United States V. Allegheny-Ludlum Industries,
Inc., 517 F.2d 826 (5th Cir. 1975), cert, denied 
sub nom. National Organization for Women, Inc.
V. United States and Harris v. Allegheny-Ludlum
Industries, Inc., 425 U.S. 944 (1976) ................. 28

United States V. Darby, 312 U.S. 100 (1941) ........ . 26
United States V. New Orleans Public Service, Inc.,

553 F.2d 459 (5th Cir. 1977)........ .......................  23

Statutes and Regulations:
Executive Order 11246, 42 U.S.C. § 2000e (1970) ..passim 
Executive Order 8802, June 25, 1941, 6 Fed.

Reg. 3109 (June 1941), U.S. Code Cong. Ser­
vice 1941 .......... ....... .... ............... ....... ....... .........  7

Executive Order 10925, 26 Fed. Reg. 1977, 3 C.F.R.
1959-63 Comp. 448 .............................. ......... .......  7

Section 703(d) of Title VII, 42 U.S.C. § 2000e- 
2(d) (1970) __________________ _____________  8

40 U.S.C. § 486(a) ........... ............... .........................  24
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2 et seq. (1970) ___________ _____ ____ passim
H.R. 1746, P.L. 92-261 _______ _________ _______ 8
41 C.F.R. 60 ............................ ......................... .......  16, 17

TABLE OF AUTHORITIES—-Continued
Page



V

Books and Articles: Page
I. Berlin, Slaves Without Masters: The Free 

Negro in the A ntebellum South (Vintage
Ed. 1976) ______     26

E. Genovese, Roll, Jordan, Roll: The World
the Slaves Made (1974) ......... ......... — ..... .— 26

R. Kruger, Simple Justice (Vintage Ed. 1977).... 26,27 
R. Logan, The Betrayal of the Negro (Collier

Ed. 1965)..........     27
Comment, The Philadelphia Plan: A Study in the 

Dynamics of Executive Power, 39 U. Chi. L.
Rev. 723 (1972) _________   ......7,14,25,27

Note, Developments in the Law— Employment Dis­
crimination and Title VII of the Civil Rights 
Act of 1964, 84 Harv. L. Rev. 1109 (1971) ...... 24, 26

Miscellaneous:
United States Bureau of the Census, Census of 

Population: 1970, General Social and Economic
Characteristics, Louisiana...... ......... ............. -.....  20

Subcommittee on Labor of the Senate Committee 
on Labor and Public Welfare, Legislative His­
tory of the Equal Employment Opportunity Act
of 1972 ............... ....................... ...... ........... ......... passim

115 Cong. Rec. 40,018-40,019 (1971) ____________  9
117 Cong. Rec. H. 8540 (daily ed. Sept. 16, 1971).. 12
118 Cong. Rec. S. 691 (daily ed. Jan. 28, 1972)..... 14
118 Cong. Rec. S. 2275 (daily ed. Feb. 27, 1972).... 14
H. Rep. 92-238, 92nd Cong. 1st Sess. 68 (1971).....  9

TABLE OF AUTHORITIES—Continued



INTEREST OF AMICUS CURIAE *

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 
the United States to involve private attorneys in the 
national effort to assure civil rights to all Americans. 
The Committee membership today includes two former 
Attorneys General, ten past Presidents of the American 
Bar Association, a number of law school deans, and many 
of the nation’s leading lawyers. Through its national 
office in Washington, D.C., and its offices in Jackson, 
Mississippi, and eight other cities, the Lawyers’ Commit­
tee over the past fifteen years has enlisted the services of 
over a thousand members of the private bar in addressing 
the legal problems of minorities and the poor in voting, 
education, employment, housing, municipal services, the 
administration of justice, and law enforcement.

Our extensive litigation program against employment 
discrimination is conducted through our privately funded 
Government Employment Project (providing representa­
tion to federal, state, and local government employees 
claiming unlawful employment discrimination), through 
our Equal Opportunity Employment Project (which pro­
vides representation to private-sector plaintiffs), and 
through the general litigation activities of our Mississippi 
and Washington offices and other local affiliates. In this 
case, Kaiser and the USWA have sought through volun­
tary action to come to terms with the gross underrepre­
sentation of minorities in the skilled crafts in Kaiser’s 
plants by providing for access to a newly created training 
program by white and black workers on a one-for-one 
basis. If the attack on this system is successful, we be­
lieve, as Judge Wisdom said in his dissent, that the ulti­
mate effect will be the end of voluntary compliance with 
Title VII. 563 F.2d at 230.

* The parties’ letters of consent to the filing of this brief 
being filed with the clerk pursuant to Sup. Ct. Rule 42(2).

are



2

We have previously addressed the issue of race-con­
scious affirmative action programs, in the context of 
higher education, in our amicus briefs filed in DeFunis v. 
Odegaard, 416 U.S. 312 (1974), and Regents of the Uni­
versity of California v. Bakke, 57 L,Ed.2d 750 (1978). 
Because the issues presented by this case are vitally im­
portant to the realization of the goal of equal employment 
opportunity for blacks, the Committee files this brief urg­
ing reversal of the judgment below.

INTRODUCTORY STATEMENT

The agreement reached by Kaiser and the United Steel­
workers of America (USWA) in this case was taken as a 
“ ‘remedial’ measure in response to pending litigation 
concerning minority and female employment” 1 and in 
response to threats by the Office of Federal Contract 
Compliance (OFCC) concerning Kaiser’s affirmative ac­
tion obligations. The agreement called for the establish­
ment of training programs at Kaiser’s 15 plants to train 
current employees for crafts positions. At the time the 
agreement was consummated in 1974, Kaiser’s plant at 
Gramercy, Louisiana was approximately 85% white and 
14.8% black. Black representation in the crafts was only 
2-2.5%. Because the area from which the work force was 
hired was about 40% black in population, a goal of 39% 
minority representation was established for each of the 
crafts families.

1 The court of appeals’ statement that the collective bargaining 
agreement was entered into to avoid future litigation, 563 F.2d at 
218, is wrong. Supplemental Agreement to Collective Bargaining 
Agreement, Art. IX ff 1 (Feb. 1, 1974). See Complaint If 5 and 
Answers of Kaiser and USWA (f 5. At the time of the agreement, 
Kaiser was defending Title VII litigation involving its two> other 
plants in Louisiana located at Chalmette and Baton Rouge. Parson 
V. Kaiser Alum. & Chem. Corp., 575 F.2d 1374 (5th Cir. 1978); 
Burrell V. Kaiser Alum. & Chem. Corp., Civ. Action 67-86 (M.d '. 
La.) (consent decree, Feb. 24, 1975).



3

Entrance into the training program depended almost 
exclusively on seniority, but since there were far more 
whites with greater seniority than blacks, without some 
equalizing mechanism, few blacks if any would have 
gained entrance into the program. Since this would have 
defeated the whole purpose of the program, the parties 
agreed in a Memorandum of Understanding that vacan­
cies would be filled by selecting the white and black 
applicants with the greatest seniority on a one-to-one 
basis. The court of appeals held that this two-track sys­
tem violates Title VII.

This Court’s decision in Bakke teaches that, in de­
termining the validity of race-conscious affirmative action 
programs, important distinctions must be drawn based on 
the statutes involved and the context of the particular 
case. The parties to this action disagree as to the scope 
of the question presented. We suggest that the narrow 
issue before the Court is whether Executive Order 11246 
and its implementing regulations authorize government 
contractors to implement race-conscious affirmative action 
programs, involving quotas when necessary, to increase 
minority representation in the skilled trades, and, if so, 
whether the Executive Order conflicts with Title VII or 
is otherwise invalid.

The nub of the court of appeals’ ruling is that, because 
past discrimination at the Gramercy plant was not proven, 
the “remedial” program devised by Kaiser and the USWA 
became a “ racial preference” in violation of Title VII 
which even a court could not have ordered. 563 F.2d at 
224. This holding utterly ignores the most singular aspect 
of this litigation— that none of the parties involved had 
the slightest interest in establishing the existence of past 
discrimination. It blinks reality to apply the same stand­
ards applicable to other Title VII litigation to this set of 
circumstances. The law must be flexible enough to devise 
standards that are meaningful so as not to result in self­



4

fulfilling prophesies concerning proof of issues concerning 
which the parties lack adversity.2

The purpose of this brief is to suggest a framework for 
analysis for determining the validity of racial quotas in 
cases such as this. Whatever standard is adopted should 
further the clear Congressional purpose of facilitating 
voluntary compliance in assuring equality of employment 
opportunity. Alexander v. Gardner-Denver Co., 415 US 
36, 44 (1974).

We propose the following standard: a race-conscious 
affirmative action plan should be immunized by Executive 
Order 11246 from violating Title VII if a government 
contractor shows either (1) a reasonable belief that a 
prima facie case of racial discrimination against blacks 
can be established, or (2) a reasonable belief that part of 
his work force underutilizes minorities and women and 
that, unless corrective action is taken, he may be subject 
to sanctions by the OFCC. If either of these is met, then

2 The only witnesses to testify at trial were two white workers and 
two Kaiser officials. The USWA put on no witnesses. Considering 
that neither party could benefit by a showing that past racial dis­
crimination had occurred, it is remarkable that the record contains 
as much information as it does. Amicus believes that the statistical 
evidence before the Court in fact constitutes a prima facie case of 
racial discrimination. On this record we believe it unnecessary for 
the Court to determine the minimum threshhold of evidence required 
to permit a federal contractor to implement an affirmative action 
plan of the Kaiser design to claim the protection of Executive Order 
11246.

We believe that the “ two-court” rule should not be applied in this 
case because there was “obvious and exceptional” error in the lower 
courts assessment of the facts concerning prior discrimination. 
Berenyi v. District Director, Immigration and Naturalization Ser­
vice, 385 U.S. 630, 635 (1967). This error is exemplified by the 
court of appeals’ treatment of discrimination in the limited training 
program in effect until 1974 as de minimis; in its failure to mention 
the five years’ experience requirement previously used to hire crafts­
men; and in its failure to consider 1970 census data showing that 
blacks accounted for 21.3% of the craftsmen, foremen, and kindred 
workers in the two parishes from which Kaiser drew its work force.



5

the contractor must show that the means chosen to in­
crease the number of minorities in the work force is the 
least onerous alternative available. If he meets this 
burden, then the contractor is immune from liability 
under Title VII.®

SUMMARY OF ARGUMENT
I.

1. Executive Order 11246 exempts a government con­
tractor from liability under Title VII when he imple­
ments a race conscious affirmative action plan designed 
to increase minority representation in the skilled crafts 
which have historically excluded blacks. The Executive 
Order permits the use of quotas and the legislative history 
of the 1972 amendments to the Civil Rights Act of 1964 
demonstrates conclusively that Congress was aware of, 
and approved, the use of preferential treatment, including 
quotas, under the Executive Order.

2. Past discrimination need not be shown in order for 
a government contractor to qualify for the exemption. It 3

3 If a race-conscious affirmative action plan were attacked by a 
white employee, at trial the contractor would establish his immunity 
under Executive Order 11246 by proving the required elements as 
described in the text. Once these elements were established, he 
would be entitled to a dismissal of the complaint. He need not 
establish a compelling need for the program, for as we argue, infra, 
the Executive Order itself shows a compelling governmental inter­
est in affirmative action by government contractors.

Since non-government contractors are not covered by Executive 
Order 11246, their burden would be different. Obviously, the second 
part of our suggested standard—underutilization of minorities— 
would not apply: a non-government contractor is not aided by the 
powerful government interests underlying the Executive Order that 
all share equally in the jobs generated by the federal government’s 
spending. As a defense to a Title VII suit, a non-government con­
tractor must show some link to past discrimination in his plant to 
justify an affirmative action plan. A reasonable belief that a prima 
facie case of racial discrimination against blacks could be estab­
lished should be sufficient.



6

is sufficient that he have a reasonable belief in the exist­
ence of a prima facie case of racial discrimination or 
that he is out of compliance with OFCC requirements 
concerning minority representation, and that the means 
chosen are the least restrictive alternative available. The 
record in this case amply demonstrates that Kaiser’s pro­
gram meets that standard.

II.
Because the Executive Order throws a mantle of pro­

tection over government contractors in creating race 
conscious affirmative action programs, it must be shown 
to be a valid exercise of Executive authority, and, in 
addition, to comply with equal protection principles of the 
Fifth Amendment. We assume, arguendo, that the most 
exacting judicial scrutiny is required. Executive Order 
11246 and its predecessors have repeatedly been upheld 
as a valid exercise of the Executive power and the 1972 
amendments to the Civil Rights Act of 1964 show Con­
gress’ express ratification of the federal contract com­
pliance program including the use of quotas. The govern­
mental interest that minorities not be excluded from jobs 
created by federal expenditures is compelling and the 
quota system used by Kaiser to admit blacks to the skilled 
crafts is necessary to promote this interest.



7

ARGUMENT

I. FEDERAL CONTRACTORS ARE IMMUNE FROM 
LIABILITY UNDER TITLE VII WHEN THEY CRE­
ATE AFFIRMATIVE ACTION PROGRAMS TO 
MEET THEIR OBLIGATIONS UNDER EXECUTIVE 
ORDER 11246.

(1) Executive Order 11246.
In 1941, President Roosevelt, at the behest of civil 

rights forces, issued the first in a series of Executive 
Orders designed to put an end to employment discrimi­
nation by government contractors. Executive Order 8802, 
June 25, 1941, 6 Fed. Reg. 3109 (June 1941), U.S. Code 
Cong. Service 1941, p. 860. For 20 years, a succession 
of Executive Orders carried forward the policy of non­
discrimination in government procurement and in the 
defense industry.4 After 1943, the Executive Orders re­
quired all government contracts to include a clause obli­
gating employers not to discriminate on the basis of race, 
color, creed, or national origin. Due to the ineffective­
ness of this approach, in 1961 President Kennedy ex­
tended this requirement to include affirmative action. 
Executive Order 10925, 26 Fed. Reg. 1977, 3 C.F.R. 
1959-63 Comp. 448. The obligations of governmental 
contractors are currently set forth in Executive Order 
11246.5 The Executive Order has been upheld as a “valid

4 The successive Executive Orders are described in Contractors 
Ass’n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159, 168-70 
(3rd Cir. 1971), cert, denied, 404 U.S. 854 (1971). See also, Com­
ment, The Philadelphia Plan: A Study in the Dynamics of Executive 
Power, 39 U.Chi.L.Rev. 723, 725 n.25 (1972).

5 Executive Order 11246 provides, in pertinent part:
The contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex 
or national origin. The contractor will take affirmative action to 
ensure that applicants are employed, and that employees are 
treated during employment, without regard to their race, color, 
religion, sex or national origin. §202(1).



8

effort by the government to assure utilization of all seg­
ments of society in the available labor pool for government 
contractors, entirely apart from Title VII.”  Equal Em­
ployment Opportunity Commission v. American Telephone 
& Telegraph Co., 556 F.2d 167, 175 (3rd Cir. 1977).

Without any consideration of the legislative history, 
the court of appeals in this case held that Executive Order 
11246, insofar as it mandates racial quotas for admission 
to on-the-job training programs, cannot be harmonized 
with § 703(d) of Title VII and is therefore invalid. An 
examination of the legislative history of the 1972 amend­
ments to the Civil Rights Act of 1964 demonstrates that 
the Congress (1) knew that the Executive Order man­
dated the use of quotas, and (2) did not regard the Exec­
utive Order as being in conflict with the terms of Title 
VII.

(a) Congress knew that Executive Order 11246 
expressly provided for the use of quotas to 
ensure that blacks were not excluded from jobs 
created by the expenditure of federal funds.

It is clear from the legislative history of the 1972 
amendments that Congress was fully aware that quotas— 
in the strict sense of the word— were mandated by the 
Executive Order. One of the major procedural questions 
which the Congress addressed was whether to transfer 
all the authority, functions, and responsibilities of the 
Secretary of Labor pursuant to the Executive Order re­
lating to contract compliance to the Equal Employment 
Opportunity Commission. Section 717(f) of H.R. 1746, 
P.L. 92-261. A major issue that emerged in the debates 
was whether, if the amendment were approved, Title VII 
would prohibit affirmative action, including the use of 
racial quotas, which was authorized by the Executive 
Order. Much of the discussion in the debates focused on 
the Philadelphia plan, whereby the OFCC had imposed 
affirmative action requirements utilizing goals for hiring



9

minorities as a precondition for federal assistance for 
certain construction projects.’6

In opposing the transfer of the OFCC’s functions to the 
EEOC, Rep. Green expressed her concern that, if the 
transfer occurred, the EEOC might decide that it had 
authority to impose racial quotas, which it was forbidden 
to do by Title VII. Her understanding of Title VII was 
that “ [ujnder Title VII, (Sec. 703 ( j ) ) EEOC is expressly 
prohibited from imposing racial quota requirements. Un­
der the Executive Order, there is authority to require an 
affirmative action plan including the imposition of racial 
quotas.” She regarded “the Philadelphia Plan [as] such 
a quota plan.” H. Rep. 92-238, 92nd Cong. 1st Sess. 68 
(1971) (Separate views of Rep. Green of Oregon).7

To ensure that the EEOC would not misinterpret the 
extent of its authority in the event that the federal con­
tract compliance program was transferred to its juris­
diction, Rep. Dent introduced an amendment that defined

6 In 1969, a preliminary skirmish had been fought over the quota 
issue. _ The Comptroller General objected to the Philadelphia plan as 
violating Title VII because it approved quotas. He refused to ap­
prove expenditures for projects approved under it. The Attorney 
General issued a contrary opinion and directed the Secretary of 
Labor to administer the plan. The Comptroller General then sought 
to have a rider attached to a pending appropriations bill to limit 
“ the use of funds to finance any contract requiring a contractor or 
subcontractor to meet, or to make every effort to meet, specified 
goals of minority group employees.” 115 Cong. Rec. 40,018 - 40,019 
(1971). The rider, known as the Fannin rider, was defeated. The 
episode is described in 39 U.Chi.L.Rev., supra, at 747-50. As the 
comment points out, because the measure was a rider attached to an 
appropriations bill, it would be overstating the case to regard this 
as ratification by Congress of the Philadelphia Plan. No such 
ambiguity attends the debates on the 1972 Amendments.

7 Reprinted in Subcommittee on Labor of the Senate Committee on 
Labor and Public Welfare, Legislative History of the Equal Em­
ployment Opportunity Act of 1972 (hereafter Legislative History), 
at 128. Rep. Green had submitted an amendment in committee which 
would have made Title VII take precedence in case of conflict. That 
amendment had been rejected.



10

the EEOC’s powers in enforcing the Executive Order. 
His amendment would have prohibited the Commission 
from imposing or requiring quotas or preferential treat­
ment in the administration of the federal contract com­
pliance program.8 Legislative History 190. He explained 
that:

Such a prohibition against the imposition of quotas 
or preferential treatment already applies to actions 
brought under Title VII. My amendment would, for 
the first time, apply these restrictions to the Federal 
contract-compliance program.

Legislative History 190.
Rep. Quie, in discussing the transfer of power to the 

EEOC, emphasized that “ the OFCC does not operate un­
der the provisions of the Civil Rights Act and its pro­
cedures and sanctions are completely different from those 
of the Act, . . .” Legislative History 202. He anticipated 
great difficulties arising “ from the fact that the OFCC 
has imposed requirements on Federal Government con­
tractors which it is questionable may be imposed under 
the statute.”  Id.

Rep. Green stated that Title VII “had always pro­
hibited the establishment of quotas” , Legislative History 
209, but that ’ ’Executive Order 11246 under which the 
Philadelphia Plan was put into effect, in my judgment 
clearly did establish quotas.” Legislative History 210. 
She then stated that it would be impossible for her to 
support the committee bill without some amendments, 
including a “ Congressional prohibition against establish­

8 The amendment read:
The Commission shall be prohibited from imposing or requir­
ing a quote [sic] or preferential treatment with respect to 
numbers of employees, or percentages of employees of any 
race, color, religion, sex or national origin. Legislative History 
189.



11

ing any quota system— a prohibition against preferential 
treatment for some at the expense of others, a prohibition 
against ‘reverse discrimination’, if you will.” Ibid. After 
describing how the OFCC had, in a highhanded manner, 
imposed quotas in a plant in Portland, she then stated 
that the purpose of the amendment was

to give this House the right to decide whether or not 
we want to amend the Civil Rights Act and to say 
whether we are going to establish quotas by law. 
H.R. 1746, the committee bill, on page 29, freezes 
Executive Order 11246 into the law. If this were 
passed without amendment, we would be giving our 
approval to the quota system.

Legislative History 210, 211.
In an exchange between Rep. Pucinski and Rep. Dent, 

the latter made clear that in his mind there was no dis­
tinction between the word “goal” and the word “quota” 
and that under his amendment any preferential treatment, 
including quotas, would be forbidden:

Mr. Pucinski. And, this amendment would bring 
Title VII into this Commission’s activities? In other 
words, if this amendment is adopted, the Commission 
cannot claim it as exempt from Title VII of the 
Civil Rights Act nor can the Commission require 
quotas or goals in assigning job distribution?
Mr. Dent. Right; it cannot require quotas.

Legislative History 235.
As a final example, Rep. Steiger stated that he was 

“ absolutely appalled” at the Dent amendment, “which is 
aimed at subverting the Philadelphia plan and the Office 
of Federal Contract Compliance’s effort to carry forward 
an affirmative action program.” Legislative History 222. 
He went on to say, with particular relevance for this case:



12

I think an effort has been made to end the other 
program [i.e., the federal contract compliance pro­
gram] designed to ensure an increase in the abiilty 
of the minority people to gain some place in those 
trades in which the salaries are high and in which 
they have a certain opportunity to be skilled crafts­
men in the society. Ibid. (Brackets and emphasis 
added.)

The Dent amendment was defeated. 117 Cong. Rec. 
H. 8540 (daily ed. Sept. 16, 1971).

This is but a small sampling of statements made during 
the debate in the House and Senate demonstrating that 
Congress understood that the Executive Order authorized 
affirmative action, including quotas, and that Title VII 
did not in the absence of prior discrimination.9

(b) Congress did not regard the Executive Order 
as conflicting with Title VII.

The Senate was also fully informed as to the remedial 
differences between Executive Order 11246 and Title VII. 
Sen. Javits explained how the OFCC had interpreted the 
concept of affirmative action “as something more than 
just the duty not to engage in active discrimination in 
hiring.” Legislative History 648.

Under this concept of affirmative action OFCC has 
been able to promulgate plans, such as the Phila­
delphia plan, and numerous similar plans in other 
cities throughout the country, under which contrac­

9 The relevant debates in the House appear in Legislative History, 
pp. 128, 209-211, 260-261, 287 (remarks of Rep. Green) ; 190, 255, 
234-235 (remarks of Rep. Dent) ; 202 (remarks of Rep. Quie); 208- 
209, 230-231, 283-34 (remarks of Rep. Erlenborn) ; 208-209 (re­
marks of Rep. Hawkins); 222, 224 (remarks of Rep. Steiger); 234- 
235 (remarks of Rep. Pucinski); and 259 (remarks of Rep. Gerald 
R. Ford).

In the Senate, the relevant debate is found at: 515 (remarks of 
Sen. Allen) ; 648-649, 1046-1048 (remarks of Sen. Javits) ; 915-917 
(remarks of Sen. Saxbe); 921 (remarks of Sen. Williams) ; and 
1042-1045, 1101, 1714-1717 (remarks of Sen. Ervin).



13
tors agree to undertake good faith efforts to increase 
the utilization of minority group employees and wom­
en without reference to whether they are actually 
guilty of illegal discrimination. Ibid, (emphasis 
added)

He went on to point out that Title VII “ is strictly a non­
discrimination law. Affirmative action may be ordered, 
but only as a remedy in a case of proven discrimination.” 
Legislative History 649. He continued that, if OFCC’s 
powers were transferred to the EEOC, “ [t]he result might 
be confusion in the agency and confusion in the minds of 
Federal contractors in dealing with the agency, or a 
watering down of the Executive Order program so that 
it and the Title VII program become indistinguishable.” 
Id.

Sen. Saxbe gave emphasis to the point:
The Executive Order program should not be con­
fused with the judicial remedies for proven discrimi­
nation which unfold on a limited and expensive case- 
by-case basis. Rather, affirmative action means that 
all Government contractors must develop programs 
to insure that all share equally in the jobs generated 
by the Federal Government’s spending. Proof of 
overt discrimination is not required, (emphasis 
added)

Legislative History 915. In opposing the transfer of func­
tions to the EEOC, Sen. Saxbe stated: “ The affirmative 
action concept as innovatively and successfully employed 
by the OFCC has been challenged as a violation of Title 
VII— the courts have responded by stating that the Exec­
utive Order program is independent of Title VII and not 
subject to some of its more restrictive provisions.” Id. 
916. He foresaw that placing the Executive Order pro­
gram under Title VII would give rise to renewed chal­
lenges. Id. 917.

The failure of the effort to merge the OFCC program 
into the EEOC was the prelude to a major battle in the



14
Senate— orchestrated by Senator Ervin—to subject the 
Executive Order to Title VII’s anti-discrimination pro­
visions and annihilate the affirmative action program. The 
conflict has been described in Comment, The Philadelphia 
Plan: A Study in the Dynamics of Executive Power, 39 
U.Chi.L.Rev., supra, at 754-757, and will not be repeated 
in depth here.

Briefly, an amendment offered by Sen. Ervin would 
have provided that: “No department, agency or officer of 
the United States shall require an employer to practice 
discrimination in reverse by employing persons of a 
particular race, or a particular religion, or a particular 
national origin, or a particular sex in either fixed or vari­
able numbers, proportions, percentages, quotas, goals or 
ranges.”  118 Cong. Rec. S. 691 (daily ed. Jan. 28, 1972). 
This amendment was decisively rejected. Because, in 
addition to attacking the Philadelphia Plan, the amend­
ment could be read to deprive even courts of power to 
remedy proven cases of discrimination by quota relief, 
its defeat arguably is not a clear-cut statement of support 
for the Executive Order affirmative action program. Any 
uncertainty on this score was soon resolved.

Sen. Ervin introduced another amendment which would 
have amended § 703 (j ) of Title VII to proscribe com­
pletely the OFCC’s affirmative action program.1'15 This 10

10 The amendment provided:
Nothing contained in this title or in Executive Order No. 11246, 
or in any other law or Executive Order, shall be interpreted to 
require any employer, employment agency, labor organization, 
or joint labor-management committee subject to this title or to 
any other law or Executive Order to grant preferential treat­
ment to any individual or to any group because of the race, 
color, religion, sex, or national origin of such individual or 
group on account of an imbalance which may exist with respect 
to the total number or percentage of persons of any race, color, 
religion, sex or national origin employed by any employer, re­
ferred or classified for employment by any employment agency 
or labor organization, admitted to membership or classified 
by any labor organization, or admitted to, or employed in, any



15
was to be accomplished by extending § 703 (j) to cover 
explicit remedies devised under the Executive Order Pro­
gram. In describing the amendment, Sen. Ervin said:

Anyone who is desirous of understanding this amend­
ment can read the amendment in the light of sub­
section (j) of § 703 of the Civil Rights Act of 1964 
and understand what it would do. It is designed to 
make the prohibition upon preferential treatment 
created by this subsection of the original act ap­
plicable not only to the EEOC, but also to the Office 
of Contract Compliance and to every other executive 
department or agency engaged, either under the 
statute or under any Presidential directive, in en­
forcing the so-called equal employment opportunity 
statute.

Legislative History 1714. Sen. Javits responded by saying 
that it would make plans like the Philadelphia Plan un­
lawful and by including the Executive Order, preclude the 
federal government as an employer from putting such a 
plan into effect. Legislative History 1715. The amend­
ment was decisively defeated. Legislative History 1716-17.

The rejection of this amendment conclusively demon­
strates (1) that the affirmative action provisions of the 
Executive Order are neither governed by nor in conflict 
with § 703(j) of Title VII and 11 (2) that programs of 
preferential treatment, including quotas, are a permiss­
ible means of enforcing the Executive Order.

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

118 Cong. Rec. S. 2275 (daily ed., Feb. 27, 1972).
11 The court of appeals held that the Executive Order conflicts 

with § 703(d) of the Civil Rights Act relating tô  admissions to on- 
the-job training. 563 F.2d at 227. There is absolutely nothing in the 
legislative history that suggests Congress intended to ratify the 
authority of the OFCC to implement affirmative action plans to the 
exclusion of on-the-job training programs.



(2) The Standard of Review for validating affirmative 
action programs established by government con­
tractors to meet their obligations under Executive 
Order 11246.

While Executive Order 11246 exempts race-conscious 
affirmative action plans created to satisfy OFCC require­
ments, that does not mean that employers are without 
any constraints whatsoever in setting up such a plan. 
What is required is a standard that makes sense in the 
special context of the Executive Order.12

We believe that a government contractor who can 
demonstrate either a reasonable belief that a prima facie 
case of discrimination against blacks could be made out 
against him or that he might incur sanctions from the 
OFCC because of low utilization of minorities in his work 
force (or skilled crafts as here) should be able to create 
a race conscious AAP if he demonstrates that the particu­
lar plan adopted is necessary under the circumstances. 
This standard satisfies the policies underlying the Execu­
tive Order and protects the rights of white workers by 
requiring that the plan be carefully tailored.

Executive Order 11246 does not require proof of overt 
past discrimination to justify an affirmative action pro­
gram— rather, it looks at the composition of the employ­
er’s work force. See Legislative History 648 (Remarks 
of Sen. Javits); 915 (remarks of Sen. Saxbe); 921 (re­
marks of Sen. Williams). Cf. E.E.O.C. v. A.T.&T., supra 
(consent decree denying violations). Under 41 C.F.R. 
60-2.11, non-exempt employers must undertake a utiliza­
tion analysis which must be filed with the OFCC.13 A

12 Judge Wisdom suggests in his dissent that, if an affirmative 
action program adopted in a collective bargaining agreement is a 
reasonable remedy for an arguable violation of Title VII, it should 
be upheld. 563 F.2d at 230.

13 “ ‘Under-utilization’ is defined as having fewer minorities or 
women in a particular job group than would reasonably be expected 
by their avialability.” 41 C.F.R. 60-2.11(b). Factors to be con­
sidered are:

16

[Footnote continued on page 17]



17
federal contractor who implements an affirmative action 
plan because minorities are under-utilized is motivated 
by the desire to protect all its employees against loss of 
jobs. If the company is “ debarred” or incurs other sanc­
tions, all employees, white and black, suffer. (Tr. 130). 
A  reasonable program designed to prevent this from 
happening should be upheld.

Alternatively, as Judge Wisdom pointed out, an em­
ployer should not have to wait to be sued by black em­
ployees before taking affirmative action. If he has a 
reasonable belief that a prima facie case of liability could 
be established, this, too, should justify the creation of a 
reasonable program.14

In either case, the utilization analysis should provide 
the basis for determining whether the employer could 
form such a reasonable belief. * 1 2 3 4 5 6 7 8

13 [Continued]
(1) The minority population of the labor area surrounding the 

facility;
(2) The size of the minority unemployment force in the labor 

area surrounding the facility;
(3) The percentage of the minority work force as compared 

with the total work force in the immediate labor area;
(4) The general availability of minorities having requisite 

skills in the immediate labor area;
(5) The availability of minorities having requisite skills in an 

area in which the contractor can reasonably recruit;
(6) The availability of promotable and transferable minorities 

within the contractor’s organization;
(7) The existence of training institutions capable of training 

persons in the requisite skills;
(8) The degree of training which the contractor is reasonably 

able to undertake as a means of making all job classes 
available to minorities.

14 Of course, the existence of an OFCC agreement does not provide 
a company with a defense to a Title VII action which demonstrates 
that the AAP is ineffective and fails to eliminate present effects of 
past discrimination. Swint v. Pullman-Standard, 539 F.2d 77, 95 
n.44 (5th Cir. 1976); Stevenson v. International Paver Co 516 
F.2d 103, 106 (5th Cir. 1975).



18
It is also appropriate, in the ease of a government con­

tractor, to impose a requirement that he demonstrate 
that his plan is necessary to the accomplishment of a 
legitimate and substantial governmental interest.5 * * * * * * * * * 15

(a) Kaiser was justified in instituting a race con­
scious affirmative action plan under either the 
prima facie case standard or the “underutiliza­
tion” standard.

The record amply demonstrates that Kaiser agreed to 
the training program and the two-track seniority system 
at least in part to comply with threats by the OFCC 
conditioning federal contracts on appropriate affirmative 
action. 563 F.2d at 218. This in itself should justify the 
creation of an affirmative action plan to train minorities 
in the skilled crafts.

Furthermore, evidence introduced at trial and which is 
available as a matter of public record demonstrate that 
Kaisei could reasonably have believed that a prima facie 
case of past racial discrimination could have been 
established.

First, statistical evidence demonstrated a primai facie 
case of discrimination against blacks in hiring for un­

5 the Executive Order exempts race conscious affirmative action
plans from the operation of Title VII, the constitutionality of the
Executive Order itself is called into question. In Balcke, Justices
Brennan, Marshall, White and Blackmun held that racial classifica­
tion designed to further remedial purposes “must serve important
governmental objectives and must be substantially related to achieve­
ment of those objectives,” 57 L. Ed. 2d at 814. Mr. Justice Powell
held that a rape conscious program must be subjected to the most
exacting scrutiny under the Constitution. Since we believe that race 
conscious programs under the Executive Order serve a compelling
governmental interest and that the particular plan used by Kaiser is 
the least restrictive alternative under the circumstances, we analyze 
the issue using the more rigorous standard of review. If Kaiser’s 
program meets the standard applied to “suspect” classifications a 
fortiori it would meet the “substantial relationship” test.

In Section II we take up the questions of whether the Executive 
Order is constitutional and whether affirmative action using quotas 
serves a compelling governmental interest.



19
skilled jobs. The production force in 1974 was only 
14.8% black as compared with the area work force of 
39% black. Tr. 94-95. Even this figure was up sharply 
from 1969 when Kaiser began hiring on a one-to-one 
black-white ratio under pressure from the OFCC. From 
1958 to 1969, Kaiser hired off the street on a “ best quali­
fied” basis. The disproportionately low number of blacks 
hired could have been the result of using “non-validated” 
tests or improperly subjective processes. Discrimination 
in these hires could naturally affect the ability of blacks 
to enter the training program instituted in 1974 because 
fewer blacks would have the necessary seniority to make 
them competitive with whites. 563 F.2d at 231.

Secondly, until 1974, Kaiser had a limited training pro­
gram for two crafts: carpenter-painter and general re­
pairman. (Tr. 101-102). Eligibility for these programs 
required experience as well as seniority. (Tr. 110) Out 
of 28 trainees in the two programs only two were black. 
Thus, with two exceptions, the prior experience require­
ment kept blacks out of the training program. (Tr. 135) 
Nothing in the record suggests that Kaiser attempted to 
recruit blacks for the training program. Its post-1970 
recruiting of blacks—the only recruiting it ever under­
took— extended only to blacks who were fully qualified 
craftsmen. (Tr. 99)

The court of appeals seems to acknowledge that, but 
for the small numbers involved, a prima facie case of 
discrimination was made out. The court concluded that, 
in view of the limited scope of the program, the prior 
experience requirement could not be regarded as an un­
lawful employment practice. 563 F.2d at 224 n.13. 
However, the size of the program does not immunize it. 
Green v. McDonnell Douglas Corp., 411 U.S. 792 (1973). 
Indeed, in this very case the majority found Title VII 
violated because it gave preference to seven blacks.

Thirdly, Kaiser required five years’ (subsequently re­
duced to three) experience to be hired into the “ journey­



man top paying standard rate craftsman classification” 
(Tr. 111). Prior to 1974, only five blacks were in all 
the crafts combined; two of the blacks had gone through 
the limited training program (Tr. 112). Until 1974, the 
company was unable to hire a black journeyman off the 
street (Tr. 112). There was no showing that the experi­
ence requirement was necessary and, indeed, the fact that 
it was shortened from five to three years suggests that it 
was not.

Fourth, Kaiser maintained that the reason more black 
craftsmen were not hired prior to 1974 (there were five 
out of 290 craft workers at the Gramercy plant) was due 
to the lack of black craftsmen in the area. Kaiser’s in­
dustrial relations expert testified at trial that the great 
majority of all employees at the plant were hired from 
St. James and St. John the Baptist parishes. 415 F. Supp. 
at 764. And it was the population of these two parishes 
that was used to establish the goal of 39% minority for 
each of the craft families at the Gramercy plant. (Tr. 
95).

Census figures show that in 1970, 432 of 2,029 or 
21.3% of workers in those two parishes classified as 
Craftsmen, Foremen, and Kindred Workers, were black.16

“  OCCUPATION OF EMPLOYED PERSONS
16 Years of Age and Over 

1970
Craftsmen, Foremen,

20

and Kindred Workers Total Black Black %
Louisiana: 167,860 25,901 15.4%
New Orleans SMS A : 49,641 8,897 17.9%
Baton Rouge SMSA: 15,884 2,703 17.0%
St. James Parish: 783 179 22.9%
St. James and St. John the Baptist: 2,029 432 21.3%
Source: U.S. Bureau of the Census, Census of Population: 1970

General Social and Economic Characteristics, Louisiana. 
State data: Table 54
SMS A data: Table 86 (totals)

Table 93 (blacks)
Parish data: Table 122 (totals)

Table 127 (blacks)



21

The black craft population at Gramercy was only 2-2.5% 
in 1974. 415 F. Supp. at 764.

Fifth, assuming the alleged lack of available black 
craftsmen was caused by discrimination by craft unions, 
and, as Kaiser claims, not by its own hiring policies,17 the 
company’s failure to institute a large-scale training pro­
gram to reduce its dependency on so discriminatory a 
source of craftsmen, is itself a prima facie violation of 
Title VII. Because the requirement of prior experience 
tended to exclude blacks at such a high rate, it was un­
lawful unless justified by “business necessity” . Griggs v. 
Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 425-26 (1975). No such 
justification has been offered.

Finally, the two documents lodged with the clerk by the 
United States in this case demonstrate (1) that craft 
employment practices at the Gramercy plant were out of 
compliance with OFCC anti-discrimination requirements 
(1971 Compliance Report) and (2) that prior experience 
requirements for transfer to maintenance crafts were not 
validated and had been waived for whites but not for 
blacks.

(b) The two-track seniority system used at the 
Gramercy plant was the least restrictive viable 
alternative.

The problem confronted by Kaiser and the USWA was 
that as of 1974, of the 290 craftsmen at the Gramercy 
plant, only five, or approximately 2%, were black. The

17 But see Parson v. Kaiser Alum. & Chem. Corp., supra, 575 F.2d 
at 1381-1382, 1389-1390. In a footnote, the court distinguished the 
Weber case with the statement that “ Kaiser went too far . . .  by 
imposing a hiring quota of a minimum number of blacks in a plant 
where no prior discrimination could be shown.” 575 F.2d at 1374 
n.35 (emphasis added). As discussed above, we consider it dis­
ingenuous to equate what the parties to that lawsuit were interested 
in showing and what might have been shown if their interests had 
been truly adverse on that particular issue.



22

two-track system based on seniority was not only reason­
able under the circumstances, but was necessary if blacks 
were to have any real chance of being able to participate 
in the training program.

First, it cannot be argued in the present context that 
application of a quota in any way interferes with merit- 
based hiring. All the applicants were equally well quali­
fied to participate in the training program. For all in­
tents and purposes, the only measure of selection was 
seniority. (Tr. 105, 114)

Second, a Kaiser official testified that in the absence 
of a race conscious program “very few blacks . . . would 
get into any of the crafts for quite a while.” (Tr. 113).

Third, unlike the situation in higher education, this 
would be an inappropriate situation to consider race as 
one of several relevant factors. Unlike a university, an 
industrial employer has no justifiable interest in a diverse 
work force. Selection for crafts training has traditionally 
been based on seniority under collective bargaining agree­
ments.

Fourth, in view of the fact that Kaiser claims that it 
had exhausted the supply of skilled blacks in the area, 
the only way to increase minority representation in the 
crafts families was through the implementation of a train­
ing program.

Fifth, the system aided both whites and blacks because 
both groups had an opportunity to enter the crafts which 
they did not have previously.

Sixth, the quota agreed upon was not an absolute quota 
in the sense that it reserved all the spaces in the training 
program for blacks. See Carter V. Gallagher, 452 F.2d 
315, 327 (8th Cir. 1971) (on petition for rehearing en 
banc), cert, denied, 406 U.S. 950 (1972).



23

Seventh, a lesser ratio such as 1 black to 2 whites would 
not have been effective. Even using the 1-1 hire ratio, it 
was estimated by a Kaiser official that it would take a 
minimum of 10 years to achieve the 39% figure and 
possibly never, depending upon Kaiser’s needs and turn­
over. (Tr. 108-109).

Eighth, using a random sampling, given the racial com­
position of the labor force, would have produced few, if 
any, blacks.

Ninth, the 1-1 ratio was temporary. Under the agree­
ment it was understood that once the goal of 39% was 
achieved, Kaiser would revert to the ratio needed to keep 
minority representation equal to the representation in the 
community work force population. (Tr. 109-110).

Given the particular facts of this case, the 50-50 hiring 
ratio for acceptance into the training program was the 
least restrictive viable alternative.

II. EXECUTIVE ORDER 11246 IS A VALID EXERCISE 
OF THE EXECUTIVE POWER WHICH SERVES 
COMPELLING GOVERNMENTAL INTERESTS.

(a) Executive Order 11246 was issued pursuant to 
statutory authority and has the force and 
effect of law.

The authority of the President to issue Executive Order 
11246 and its predecessors has repeatedly been upheld. 
United States v. New Orleans Public Service, Inc., 553 
F.2d 459 (5th Cir. 1977) (NOPSI) ; Contractors Ass’n 
of Eastern Pennsylvania v. Secretary of Labor, supra; 
Farkas v. Texas Instruments, Inc., 375 F.2d 629 (5th 
Cir. 1967), cert, denied, 389 U.S. 977 (1967) (Exec. 
Order 10925); Farmer v. Philadelphia Electric Co., 329 
F.2d 3 (3rd Cir. 1964) (Exec. Order 10925 and prior 
orders). The authorization has variously been, found in 
Art. II of the Constitution, which commands the President



24

to “ take care that the laws be faithfully executed” , the 
due process clause of the Fifth Amendment, explicit Con­
gressional authorization in 40 U.S.C. § 486(a), and im­
plied Congressional ratification in Title VII of the Civil 
Rights Act of 1964 and the debates surrounding the 1972 
amendments. Note, Developments in the Law— Employ­
ment Discrimination and Title VII of the Civil Rights 
Act of 1964, 84 Harv.L.Rev. 1109, 1275-80 (1971); 
United States v. New Orleans Public Service, Inc., supra. 
In NOPSI, supra, the court isolated three sources of 
legislative authority for Executive Order 11246: the 
President’s express statutory authority concerning federal 
procurement; the Civil Rights Act of 1964; and the de­
bates over the 1972 amendments.

40 U.S.C. § 486(a) authorizes the President to issue 
orders to implement the Federal Property and Adminis­
trative Services Act of 1949. The procurement power may 
be used by the President and Congress to achieve social 
and economic objectives. Rossetti Contracting Co. v. 
Brennan, 508 F.2d 1039, 1045 n.18 (7th Cir. 1974) ; 
Northeast Construction Co. v. Romney, 157 U.S. App. 
D.C. 381, 485 F.2d 752, 760 (1973). As the Court said 
in NOPSI, supra, “ Those cases stand for the proposition 
that equal employment goals themselves, reflecting impor­
tant national policies, validate the use of the procure­
ment power in the context of the Order.”  553 F 2d at 
467.

Moreover, Congress has ratified the Executive Order 
program, including the use of quotas, to implement the 
affirmative action aspect. What was implicit in 1964 
when Congress indicated that Title VII would not be the 
exclusive remedy for employment discrimination and per­
mitted the Executive Order program to continue, was 
made explicit in 1972 when it turned back attempts to 
consolidate the OFCC with the EEOC and eliminate the 
use of quotas as a tool for achieving affirmative action



25

on the part of government contractors. NOPSI, supra, 
553 F.2d at 467. Congress’ action compels the conclusion 
that it intended the Executive Order program to continue 
and that it was concerned that the OFCC should continue 
to be the instrument for carrying out the Executive policy. 
Whatever doubts that may have existed concerning the 
validity of the Executive Power to implement the pro­
gram were cured by Congress’ action in 1972. 39 U.Chi. 
L.Rev., supra, at 723.

(b) In authorizing racial quotas to increase minor­
ity representation in the skilled crafts, Execu­
tive Order 11246 serves a compelling govern­
mental interest and does not violate the due 
process clause of the Fifth Amendment.

Recognition of the fact that Executive Order 11246 
permits Kaiser to use a racial quota to increase minority 
representation in the skilled crafts gives rise to the ques­
tion of whether the Executive Order itself violates equal 
protection principles contained in the Fifth Amendment. 
Bolling v. Sharpe, 347 U.S. 497 (1954). We assume that 
because Kaiser’s two-track seniority system uses race as 
a factor, the governmental purpose must be both legiti­
mate and substantial and that the program’s racial classi­
fication must be necessary to promote this interest. 
Regents of the University of California v. Bakke, 57 L. 
Ed.2d at 781, 786 (Powell, J . ) ; In re Griffiths, 413 U.S. 
717 (1973).

During the Congressional debates on the 1972 amend­
ments to the Civil Rights Act of 1964, Rep. Mink de­
scribed the purpose of the Contract Compliance Program 
in the following terms:

Government contractors are among the largest and 
most influential in the Nation and the policies and 
practices which they adopt have a significant impact 
on the rest of the business community. Through the 
Government-wide contract compliance program, the 
OFCC seeks to prevent any indirect Federal sub-



26
sidization of employment discrimination and to guar­
antee that the Government’s tremendous purchasing 
power operates as a force for social improvement. 

Legislative History 298. Plainly, the government’s in­
terest in seeing that minorities are not excluded from em­
ployment opportunities which are generated by the ex­
penditure of vast amounts of federal funds is sub­
stantial.18 This is particularly true in this case which 
concerns the exclusion of blacks from the skilled trades. 
It is well-documented that the absence of blacks from the 
crafts nationwide was caused by blatant racial discrimi­
nation.

Kaiser’s program was designed to address a particular 
problem: the absence of blacks from the craft families 
in its plants. The problem is a pervasive one in American 
industry and has its roots in history. Even before the 
Civil War, skilled black workers were regarded as rivals 
by white working men in both the North and the South. 
R. Kruger, SIMPLE JUSTICE, 52 (Vintage ed. 1977).19

18 Furthermore, the government is at the height of its power in 
requiring companies it does business with to help advance societal 
goals: the government has the unrestricted power to decide with 
whom it will deal and the terms and conditions of the agreement. 
NOPSI, supra, 553 F.2d at 469. See also, Atkin v. Kansas, 191 U.S. 
207 (1903); Lochner v. New York, 198 U.S. 45, 55, 64 (1905); Ellis 
V. United States, 206 U.S. 246, 256 (1907) ; Perkins v. Lukens Steel 
Co., 310 U.S. 113, 127-129 (1940); United States V. Darby, 312 
U.S. 100, 115-116 (1941). While there are alternatives to Executive 
Order 11246 by which the Executive Branch may influence policy 
involving the expenditure of federal funds, each has significant 
limitations. 84 Harv.L.Rev., supra, at 1276-1277.

19 Before the Civil War, there were numerous black craftsmen. 
Masters often hired out their slave craftsmen to others. E. Geno­
vese, Roll, Jordan, Roll : The W orld the Slaves Made, 391 
(1974). White craftsmen were hostile to free black craftsmen and 
attempted to drive them out of the professions. I. Berlin, Slaves 
Without Masters : T he Free Negro in the A ntebellum South, 
229-232 (Vintage ed, 1976); E. Genovese, Roll, Jordan, Roll, 
op. cit. supra, at 389 and sources cited in n.3. 41 C.F.R. 60-2.11 
states that skilled crafts is one category in which minorities are 
likely to be underutilized.



27

After the war, tensions between workers of different 
races mounted. Northern workers resented blacks as com­
petitors in the labor market and a depressant on wage 
levels: white Southern craftsmen feared competition from 
blacks who had been trained as slaves to be blacksmiths, 
bricklayers, or cabinet makers. Id. 52. Blacks were ex­
cluded from membership in the unions, beginning a pat­
tern of hostility which was to last a hundred years. See 
R. Logan, THE BETRAYAL OF THE NEGRO, 147-162 
(Collier ed. 1965). By World War II, “ the most unre­
lenting practitioners of [racial] bias were the independ­
ent craft unions and affiliates of the American Federation 
of Labor, whose long standing antipathy to blacks never 
died.” R. Kruger, SIMPLE JUSTICE at 228. A Kaiser 
official in this case testified that the lack of black skilled 
workers was “ a direct result of employment discrimi­
nation over the years.” (Tr. 142).

Discrimination against blacks in the trades was well 
entrenched by 1941 when, reacting to the threat of black 
leaders to commence massive demonstrations, President 
Roosevelt promulgated Executive Order No. 8802. 39 
U. Chi. L. Rev., supra, at 725. The Executive Order, 
and those which followed, sought to ensure that jobs 
which were generated through expenditures of federal 
money would not be denied to some because of their race.

The court of appeals held that proof of past discrimi­
nation at the Gramercy plant was an essential precon­
dition to upholding the validity of Kaiser’s affirmative 
action program. 563 F.2d at 224. But judicial-type 
findings of fact of past discrimination are not required 
under Executive Order 11246.20 As Sen. Williams, who

20 Or, it appears, under the Constitution. In Bakke, this Court 
held that a race conscious affirmative action program would be valid 
if it meets exacting scrutiny under the equal protection clause of the 
fourteenth amendment. There was no evidence that the University 
of California medical school at Davis had ever practiced racial 
discrimination.



28

supported transferring the functions of the OFCC to the 
EEOC, said:

The key to the Office of Federal Contract Com­
pliance’s approach is affirmative action. It is not a 
situation, although it could well be called one, of cor­
recting persisting discrimination in its most well 
understood form. It involves an effort regardless of 
the past history of the employer to upgrade and im­
prove its minority work force. In the affirmative 
action program, the concept of improving the quality 
of minority employment is commendable. It is neces­
sary, and it is urgent. In the Department of Labor 
it has not worked well and should be transferred. 
The contract compliance program is necessary and 
important.

Legislative History 921. See also Legislative History 648 
(remarks of Sen. Javits); 915 (remarks of Sen. Saxbe). 
Cf. Rhode Island Chapter, Association of General Con~ 
tractors v. Kreps, 450 F. Supp. 338, 353-355 (D. R.I. 
1978). Discrimination in the steel industry is well-docu­
mented.21

21 United' States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 
826 (5th Cir. 1975), cert, denied sub nom. National Org. of Women 
V. United States and Harris v. Allegheny-Ludlum Industries, Inc., 
425 U.S. 944 (1976). Kaiser’s two other plants in Louisiana have 
been the subject of successful lawsuits charging employment dis­
crimination. Parson v. Kaiser Aluminum & Chemical Corp., supra; 
Burrell v. Kaiser Aluminum & Chemical Corp., supra (consent de­
cree, Feb. 24, 1975). A Kaiser spokesmen testified at trial that no 
employer in the United States had been free from discrimination 
against blacks prior to a given time in history. (Tr. 169). While he 
did not know of specific instances of discrimination at Gramercy, it 
was not his responsibility to pursue it. (Tr. 168). In his opinion, 
the small statistical presence of minorities in the craft groups indi­
cated that there had been discrimination in those groups. (Tr. 146). 
He testified that minorities had not been permitted to participate in 
certain skilled occupations and therefore they couldn’t be available in 
any Quantity in the marketplace. (Tr. 146). This was no different at 
any of the Kaiser facilities. (Tr. 147).



29

The constitutionality of racial quotas under Executive 
Order 11246 has been consistently upheld. E.E.O.C. v. 
A.T.&T., supra, 556 F.2d at 178-80; Associated General 
Contractors of Massachusetts v. Altshuler, 490 F.2d 9, 
16-19 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974) ; 
Contractors Association of Eastern Pennsylvania v. Sec­
retary of Labor, supra, 442 F.2d at 176. In requiring 
government contractors to take affirmative action, through 
the use of quotas if necessary, the Executive Order serves 
the substantial governmental interest of correcting the 
racial imbalance in the skilled crafts caused by historical 
discrimination. The remaining issue is whether the quota 
used is necessary to the accomplishment of this purpose, 
and, as we have demonstrated in Section 1(2) (b), supra, 
on the particular facts of this case, it is.

CONCLUSION
For the foregoing reasons, amicus respectfully submits 

that the judgment below should be reversed.

Respectfully submitted,

Charles A. Bane 
Thomas D. Barr

Co-Chairmen

Norman Redlich
Trustee

Robert A. Murphy 
Richard T. Seymour 
Norman J. Chachkin 
Richard S. Kohn

Staff Attorneys

Lawyers’ Committee for 
Civil Rights Under Law

733 - 15th Street, N.W.
Suite 520
Washington, D.C. 20005 

Attorneys for Amicus Curiae