United Steelworkers of America (AFL-CIO-CLC) v. Weber Motion for Leave to File Brief and Brief Amicus Curiae

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978 

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

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, Petitioners,

v.
BRIAN F. W EBER, et at., Respondents.

KAISER ALUMINUM & CHEMICAL
CORPORATION, Petitioners,

v.
BRIAN F. W EBER, et al., Respondents.

UNITED STATES OF AM ERICA and 
EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Petitioners,
v.

BRIAN F. W EBER, et al., Respondents.
ON WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT

MOTION BY SOUTHEASTERN LEGAL FOUNDA­
TION FOR LEAVE TO FILE A BRIEF AND 

BRIEF OF SOUTHEASTERN LEGAL FOUNDA­
TION, IN C., AMICUS CURIAE

B e n  B . B l a c k b u r n  
W a y n e  T . E l l io t t  
A l l e n  R . H ir o n s

Attorneys for Southeastern 
Legal Foundation, Inc.
1800 Century Boulevard, 
Suite 950

February 28,1979 Atlanta, Georgia 80345

IN THE



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978 

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

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, Petitioners,

v.
BRIAN F. W EBER, et at., Respondents.

KAISER ALUMINUM & CHEMICAL
CORPORATION, Petitioners,

v.
BRIAN F. W EBER, et at., Respondents.

UNITED STATES OF AM ERICA and 
EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Petitioners,
v.

BRIAN F. W EBER, et at., Respondents.
ON W RIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT

MOTION BY SOUTHEASTERN LEGAL FOUNDA­
TION, INC., AMICUS CURIAE,

FOR LEAVE TO FILE A  BRIEF

In accordance with this Court’s Rule 42, Southeast­
ern Legal Foundation, Inc. ( “ Southeastern” ) moves 
this Court for leave to file the attached brief amicus 
curiae in the above case. Concurrent with the filing 
o f this motion, Southeastern has transmitted to the 
Clerk of this Court copies of letters of consent from 
petitioners United Steelworkers and Kaiser, and from 
respondent Brian F. Weber. The Solicitor General, on 
behalf of petitioners United States of America and

IN THE



2

Equal Employment Opportunity Commission, has re­
fused consent to Southeastern, but has stated that he 
will not oppose the filing of this motion. A  copy of the 
Solicitor General’s letter is also on file with the Clerk.

Southeastern is a Georgia not-for-profit corporation 
organized for the purpose of advancing the broad pub­
lic interest in adversary proceedings involving signifi­
cant issues. Southeastern takes a special interest in 
questions of law of a national scope that have a direct 
effect on the southeastern region. Southeastern is dedi­
cated to economic and social progress through the 
equitable administration of law. Although it has no 
direct interest in this case as an organization, it repre­
sents the members of the public who share Southeast­
ern’s dedication to assisting the courts in guaranteeing 
that the rights of all persons are properly protected 
and balanced in the courts. Southeastern’s representa­
tion of the public interest includes the representation 
of the several hundred individuals and organizations 
which contribute financially to Southeastern.

In addition to the filing of a brief amicus curiae with 
the Fifth Circuit in the instant case, Southeastern has 
participated as amicus curiae in other employment 
discrimination cases involving “ reverse discrimina­
tion.”  Southeastern filed a brief amicus curiae in Vir­
ginia Commonwealth University v. Cramer, No. 76- 
1937 (4th Cir. Aug. 15, 1978), and in 1977 urged a 
reconsideration of the steel industry consent decrees 
o f 1974. That latter effort led to a memorandum opin­
ion, by the District Court for the Northern District 
of Alabama, which clarified its view of the legality o f 
the steel industry consent decrees. United States v. 
Allegheny-Ludlum Industries, Inc., No. CA 74-P-0339-



3

S (N.D.Ala. Mar. 21,1978) (cited at p. 4 of the United 
Steelworkers brief to this Court in this case).

However this Court decides this case, its holding 
has the potential o f becoming a signpost to all who 
are concerned about the direction of affirmative action 
in employment. The Court has the opportunity to ex­
plain what will be considered permissible affirmative 
action in employment and by whom and when it may 
be undertaken or ordered. In view of the potentially 
broad impact of this case, the participation of amici 
curiae is especially appropriate. Southeastern does not 
presume to represent the totality of the public interest. 
However, we believe the attached brief presents an im­
portant public interest view which will otherwise not 
be presented to the Court.*

Respectfully submitted,

B e n  B . B l a c k b u r n  
W a y n e  T . E l l io t t  
A l l e n  R . H ir o n s

Attorneys for Movant 
Southeastern Legal 

Foundation, Inc.
1800 Century Boulevard 
Suite 950
Atlanta, Georgia 30345 
(404) 325-2255

* Last term, this Court permitted Southeastern to appear as 
amicus curiae in Duke Power Company v. Carolina Environ­
mental Study Group, Inc., 434 U.S. 937 (1978); United States 
Nuclear Regulatory Commission v. Carolina Environmental 
Study Group, 434 U.S. 937 (1978); and Tennessee Valley 
Authority v. Hill, 435 U.S. 902 (1978).



INDEX

Page

INTEREST OF THE SOUTHEASTERN
LEGAL FOUNDATION ................................... 1

SUMMARY OF ARGUMENT ............................  2

ARGUM ENT:

I. EMPLOYMENT QUOTAS SHOULD BE 
STRICTLY LIMITED TO REMEDYING 
THE EFFECTS OF PAST ILLEGAL 
DISCRIMINATION ON IDEN TIFIA­
BLE VICTIMS OF THAT DISCRIMI­
NATION ........................................................  3

IL ALL ENTITIES WHICH ADOPT EM­
PLOYMENT QUOTAS MUST FIRST 
SATISFY THE D IS C R IM IN A T IO N ­
FINDING AND VICTIM IDENTIFICA­
TION TEST ..................................................  6

CONCLUSION 14



11

TABLE OF CITATIONS
Cases: Page

International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977) ............. 5, 10, 11, 13

Martini v. Republic Steel Corp., 532 F.2d 1079 
(6th C ir.), cert, denied, 429 U.S. 927 (1976) . 11

Regents of University of California v. Bakke,__
U.S. _ ,  98 S.Ct. 2733 (1978) ........................ 5, 10

United States v. Allegheny-Ludlum Industries,
Inc., No. CA 74-P-0339-S (N.D.Ala. Mar. 21, 
1978) .......................................................................  8

United States v. Allegheny-Ludlum Industries,
Inc., 517 F.2d 826 (5th Cir. 1975), cert, denied,
425 U.S. 944 (1976) ....................................... 8, 12

United Steelworkers Justice Committee v. United 
States, 553 F.2d 415 (5th Cir. 1977), cert, de­
nied, 435 U.S. 914 (1978) ................................... 11

Weber v. Kaiser Aluminum & Chemical Corp., 563 
F.2d 216 (1977), rehearing denied, 571 F.2d 
337 (5th Cir. 1978) ..................................... passim



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978 

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

UNITED STEELWORKERS OF AMERICA,

IN THE

AFL-CIO-CLC, Petitioners,
V.

BRIAN F. W EBER, et al, Respondents.

KAISER ALUMINUM & CHEMICAL
CORPORATION, Petitioners,

V.

BRIAN F. W EBER, et al., Respondents.
UNITED STATES OF AM ERICA and

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Petitioners,

V.

BRIAN F. W EBER, et al., Respondents.

ON W RIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

BRIEF OF SOUTHEASTERN LEGAL FOUNDA­
TION, INC., AMICUS CURIAE

INTEREST OF AMICUS CURIAE
The interest o f Southeastern Legal Foundation, 

Inc. ( “ Southeastern” ) and its reasons for participat­
ing in this case are set forth in the attached motion 
for leave to file this brief. That statement of interest 
is incorporated herein.



2

SUMMARY OF ARGUMENT

The use of quotas as a method o f selecting eligible 
workers for jobs or other benefits of employment 
should be strictly limited to remedying the effects o f  
past illegal discrimination against identifiable victims 
o f that discrimination. Such remedial quotas should 
operate to place a discriminatee into his or her “ right­
ful place,”  which would have been occupied by the 
discriminatee but for previous illegal discrimination. 
The use o f quotas conditioned upon findings of past 
illegal discrimination and limited to assisting identi­
fied victims of that discrimination creates no new vic­
tims and thereby eliminates the possibility of “ reverse 
discrimination.”

Although a quota does not operate to return an in­
jured discriminatee to his or her rightful place as 
accurately as does an adjustment o f seniority, it is 
an acceptable remedial tool so long as it does not 
operate to create new victims of discrimination.

This limited use of quotas guarantees protection for 
all workers by producing remedies for past injuries 
while not creating new injuries. It is premised upon 
specific findings of past discrimination and specific 
identification o f victims in each case. To the extent it 
requires such findings, this approach may well dis­
courage the use of quotas voluntarily or in settlement 
agreements.

The practical result o f this approach is that quotas 
would be limited to case-by-case agency, legislative, 
and judicial determinations which include specific 
findings of past illegal discrimination and identifiable



3

victims. Southeastern believes that this limited ap­
proach to the use o f quotas is the only approach con­
sistent with the Constitution, Title VII of the Civil 
Eights Act of 1964, equitable principles, fundamental 
fairness and the decisions of this Court.

ARGUMENT

I.

Employment Quotas Should Be Strictly Limited To 
Remedying The Effects of Past Illegal Discrimination 

On Identifiable Victims of That Discrimination

Southeastern urges this Court to affirm  the holding 
below insofar as it states (a ) that employers and 
unions may not, pursuant to Title VII, voluntarily 
adopt racial quotas in the absence of a finding of prior 
hiring or promotion discrimination, and (b ) that 
preferences assisting individual victims of discrimina­
tion are permitted by Title VII. See Weber v. Kaiser 
Aluminum & Chemical Corp., 563 F.2d 216, 224-25 
(1977), rehearing denied, 571 F.2d 337 (5th Cir. 1978) 
( “ Weber” ).

Southeastern believes that such findings are a pre­
requisite to the use of quotas as individualized relief. 
Boiled down to its bare bones, this case is about 
whether one worker may be arbitrarily preferred over 
another in employment opportunities when both are 
equally situated. As characterized by the petitioners, 
this case is about the permissible scope o f Title VII 
voluntary compliance. While that is an important fea­
ture o f this case, undue attention and deference to 
voluntary compliance as a feature of Title V II tends



4

to obscure that this case is about rights. Indeed it is 
a certain type o f voluntary compliance— the quota—  
which the courts below found to have violated some of 
those rights.

Southeastern believes that a quota can be used in a 
way that protects the rights of all workers. A  quota 
which works to remedy the injuries of past employment 
discrimination and at the same time respects the rights 
o f incumbent non-victim workers serves the goal o f 
equal employment opportunity for all. A  quota which 
grants preferential treatment to some at the expense 
of others falls short of that goal o f equality. The quota 
adopted by Kaiser and United Steelworkers was a 
quota o f the latter type.

A  quota which seeks to place an individual worker 
in the position he would have held but for illegal dis­
crimination against him, need not simultaneously op­
erate to discriminate against some other worker. As 
the Fifth Circuit said in the decision below:

“ A  minority worker who has been kept from 
his rightful place by discriminatory hiring 
practices may be entitled to preferential 
treatment ‘not because he is Black, but be­
cause, and only to the extent, he has been 
discriminated against.’ ”

Id. at 224. Another way of expressing the Fifth Cir­
cuit’s statement is that a quota is only objectionable if  
it affects two equally situated individuals and grants 
a preference to one of them. If, on the other hand, a 
quota is used only to place an identified victim of past 
discrimination in his rightful place, the quota dis­
criminates against no one. Its operation is strictly



5

remedial. The use of a quota in this latter sense is to 
reconstruct what would have happened to the victim 
of past discrimination if  he had been treated equally 
with his peers at the time of the discrimination. While 
a quota does not operate to place a victim of past 
discrimination in his rightful place as successfully as 
an award o f proper seniority, in certain situations it 
may be the most efficient remedial tool available.

Southeastern reads the Fifth Circuit’s opinion to 
require, as a prerequisite to using quotas, both a find­
ing of past discrimination and an identification of 
individual victims. See id. at 224-25. The first part of 
the test is expressly stated by the Fifth Circuit. The 
second part of the test is expressed through the use of 
the term “ rightful place.”  Both parts of the test are 
founded upon decisions o f this Court.

In Regents of University of California v. Bakke,__
U.S. _ ,  98 S.Ct. 2733, 2755 (1978) ( “Bakke” ), Mr. 
Justice Powell stated that this Court had never ap­
proved preferential classifications in the absence of 
proven constitutional or statutory violations. In his 
discussion of employment discrimination cases, he 
noted that racial preferences were premised upon the 
need to remedy injuries caused by past discrimination. 
Id., 98 S.Ct. at 2754. Thus a finding of past discrimi­
nation and a need for  remedial relief are prerequisites 
to the use of quotas.

This Court has also held that the process of return­
ing victims of past discrimination to their “ rightful 
places”  demands an identification of the actual victims 
of the discrimination. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 371-72



6

(1977) ( “ Teamsters” ) . Teamsters dealt with seniority 
rights as opposed to quotas, but the goal of the remedi­
al relief was identical to that of the quota in this case—  
to put victims in their rightful places. I f the restora­
tion o f seniority rights in Teamsters could be achieved 
only after evidentiary hearings which identified vic­
tims and disclosed the extent of necessary relief, id. 
at 376, no less is necessary for the use of quotas.

In sum, the proper test for the use of quotas requires 
both a finding of past illegal discrimination and an 
identification of victims.

II.

All Entities Which Adopt Employment Quotas Must 
First Satisfy The Discrimination-Finding and 

Victim Identification Test

Since the purpose of requiring discrimination-find­
ing and victim identification is to guarantee that reme­
dial quotas protect the rights of all workers, there can 
be no variations in the rigors of the test depending on 
what entity is applying it. Thus, the demands of the 
test apply to courts, government agencies, legislatures 
and voluntary parties. No other standard can guaran­
tee equal employment opportunity for all.

All judicial decrees, including consent decrees, and 
government conciliation agreements, which include 
quotas, must be premised upon findings and identifica­
tions. I f this Court should hold that the type of quota 
test asserted by Southeastern has retrospective appli­
cation, existing decrees, settlements and agreements 
using quotas may be subject to challenge if  they have



7

not been predicated upon adequate findings and iden­
tifications.

The Fifth Circuit held that the hiring ratio agreed 
to by Kaiser and United Steelworkers could not have 
been approved even if it had been judicially imposed. 
Weber, supra at 224. The approach of the Fifth Circuit 
properly assumes that the outer limits of remedial 
relief under Title V II are measured by what the courts 
can do in the name o f equity and not by what private 
parties may do voluntarily. Even though the court did 
not “probe into the distinctions between court-ordered 
remedies and permissible remedies agreed upon volun­
tarily by private parties,”  id., the court did say that 
“ there is strong authority to support the position that 
courts are not subject to the same restrictions as em­
ployers.”  Id. at 223.1 * * * * * VII

1 If there is any ambiguity in the Fifth Circuit’s opinion with
respect to the permissible use of quotas, it comes from two
statements found in its discussion of the district court’s de­
cision. First, the Fifth Circuit stated that “Title VII does not
prohibit courts from discriminating against individual em­
ployees by establishing quota systems where appropriate.”  
Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216, 
223 n.12 (1977), rehearing denied, 571 F.2d 337 (5th Cir.
1978). The court’s choice of words is unfortunate. While Title
VII permits judicially ordered quotas, such quotas are remedi­
al and do not discriminate “against individual employees” if 
properly premised on findings and identifications. According 
to the Fifth Circuit’s discussion in the text following footnote 
12, such carefully conditioned quotas are what the court con­
sidered appropriate.

Second, by referring to the steel industry consent decrees 
and the Fifth Circuit’s 1975 decision upholding them, id. at 
223, the opinion leaves the impression that those consent de­
crees were legally correct in the adoption of quotas which were 
similar to the quota in this case. This impression must be



8

Petitioners argue that the Title VII goal of volun­
tary settlement permits private parties to adopt quota 
remedies without first having to make “ findings”  of 
past discrimination. If courts may not grant quota 
relief without first finding past illegal discrimination 
and identifying victims, then private parties must be 
at least, i f  not more, restricted in the adoption of quotas.

Even though this case does not involve a consent 
decree and this Court does not specifically have to 
address consent decree relief, Southeastern believes that 
any decision reached by this Court which does not con­
sider the full range of possible quota-creating mecha­

examined in light of a post appeal statement by the district 
judge that he had not determined whether there had been prior 
employer discrimination before he signed the consent decrees. 
See United States v. Allegheny-Ludlum Industries, Inc., No. 
C.A. 74-P-0339-S, memorandum op. 5, 9 (N.D.Ala. Mar. 21, 
1978) {“Allegheny-Ludlum” ) .

It is inexplicable why the Fifth Circut arrived at what 
appear to be conflicting decisions in this case and the steel 
industry case. See United States v. Allegheny-Ludlum Indus­
tries, Inc., 517 F.2d 826 (5th Cir. 1975), cert, denied, 425 U.S. 
944 (1976). The district judge has stated that the “essence” 
of the relevant steel industry consent decree “is a collective­
bargaining agreement. . . .” Allegheny-Ludlum, supra at 3. 
The quota in this case is also contained in a collective bargain­
ing agreement. Likewise in both cases there were no findings 
of discrimination before the quotas were adopted. If the only 
difference between Weber and the steel industry consent de­
crees is that the latter were subscribed by a judge, there is 
no meaningful difference. In retrospect, one further differ­
ence may be that the Fifth Circuit was not presented with 
reverse discrimination claims and arguments in the steel in­
dustry consent decree case. Southeastern suggests that the 
Fifth Circuit would decide the steel industry consent decree 
case differently today.



9

nisms, from voluntary programs to litigated decrees, 
will leave everyone— the courts, the government, and 
private parties— unclear as to their rights and respon­
sibilities with respect to affirmative action relief. If 
this Court merely affirms the Fifth Circuit’s decision, 
some may conclude that the law prevents voluntary 
agreements and judicially imposed quotas in the ab­
sence of specific findings and identifications, but that 
the law allows consent decrees such as the steel indus­
try decrees. Such a result would be illogical and open 
the courts to manipulation efforts by private parties. 
As Judge Wisdom rightly noted in his dissent below, 
employers could use friendly suits to “ circumvent the 
holding of Weber.” Id. at 229 n.6 (Wisdom, J. dis­
senting) .

Southeastern agrees with Judge Wisdom’s logic that 
the holding of the majority in Weber necessarily means 
that district courts, “ before accepting . . . consent de­
cree [s], will be forced to determine the existence and 
extent of past discrimination by the defendants.”  Id. 
Southeastern believes Judge Wisdom’s dissent correctly 
describes the implication of a requirement that quotas 
must be remedial only and premised only upon a find­
ing of discrimination and an identification of victims.

Logic compels the further conclusion that everyone, 
private party, government agency, and court, is bound 
by the strict requirements o f the “ finding/identifica- 
tion”  test.2 Any other result would manifest a disre­

2 So long as there is a legally sufficient finding of past illegal 
discrimination and identification of victims, the use of quotas 
as remedial tools should be permitted. For courts and govern­
ment adjudicatory agencies subject to judicial review, the



10

gard for the rights of employees innocent of any wrong­
doing. In Teamsters, this Court showed particular con­
cern for the legitimate expectations of innocent em­
ployees, by requiring the district court to strike a bal­
ance “ between the statutory rights of victims and the 
contractual rights of non-victim employees.”  Team­
sters, supra at 376.

Utilizing a quota as a remedial tool only when it 
operates to place identified victims of past illegal dis­
crimination in their “ rightful places”  (or as close as

findings and identifications would be tested, of course, by the 
preponderance of the evidence standard. Private parties which 
adopt quotas cannot be expected to objectively examine evi­
dence detrimental to themslves, and therefore a preponderance 
standard may not be an adequate safeguard as to them. Per­
haps only findings which are the equivalent of admissions can 
justify the adoption of quotas by private parties. Thus, they 
may be said to adopt quotas at their own risk. While this ap­
proach may discourage voluntary agreements or settlements 
including quota provisions, it may be the only approach which 
satisfies all the relevant interests and legal standards while 
guaranteeing equal opportunity for all.

Acknowledging that the Congress may not be subject to the 
same limitations in relief choice as apply to courts, govern­
ment agencies and private parties, Southeastern nevertheless 
believes that even a congressionally approved quota must be 
prefaced by what Mr. Justice Powell has called “detailed legis­
lative consideration of the various indicia of previous con­
stitutional or statutory violations. . . .” Regents of University
of California v. Bakke, _  U.S_____ 98 S.Ct. 2733, 2755 n.41
(1978) (opinion of Powell, J.). Even if the Congress may be 
able to legislate the use of quotas, based on past constitutional 
or statutory violations, any entity responding to the legislative 
determination should still be required to apply the legislative 
determination on a case-by-case approach. In any event, South­
eastern does not read the Title VII legislative history so as to 
justify the type of quota which has injured Weber.



11

practicable to their rightful places), strikes a proper 
balance. Innocent employees have no “ legitimate ex­
pectations”  subject to injury by the placement of vic­
tims of discrimination into their rightful places. But, 
unless this Court makes it absolutely clear that quotas 
may be used only after a finding of discrimination and 
an identification of victims, the rights o f innocent em­
ployees will not be adequately protected.

This Court held in Teamsters that in striking the 
balance between statutory rights of victims and con­
tractual rights of non-victim employees, a district 
court must “ state its reasons so that meaningful re­
view may be had on appeal.”  Id. ( “ contractual rights” 
in the Teamsters context means “ seniority” ). In the 
instant case it is more accurate to describe the two 
interests to be balanced as “ the statutory rights of 
victims against the statutory rights of potential vic­
tims.”  I f reasons for meaningful review were required 
in Teamsters, they are even more required here when 
statutory rights are balanced against each other.

As a practical matter, employees innocent of any 
wrongdoing have had a difficult time obtaining mean­
ingful review of voluntary agreements, settlements 
and judicial decrees which contain quotas affecting 
those employees.3

3 For example, attempts by incumbent non-minority steel­
workers to challenge the scope and effects of the steel industry 
consent decrees have had no success. In Martini v. Republic 
Steel Corp., 532 F.2d 1079 (6th Cir.), cert, denied, 429 U.S. 
927 (1976), principles of comity prevented the steelworkers 
from pursuing relief, and in United States Steelworkers Jus­
tice Committee v. United States, 553 F.2d 415 (5th Cir. 1977), 
cert, denied, 435 U.S. 914 (1978), their intervention challenge 
was held untimely.



12

In the typical voluntary collective bargaining agree­
ment, such as the one Weber has challenged, the em­
ployer and the union agree to take certain affirmative 
action. The impetus for such agreements may be sim­
ply the good intentions of the parties, or, as in this 
case, fear of future litigation and threats from the 
federal government. Whatever the reason, innocent 
employees such as Weber have no say in the agree­
ment process and are not technically parties to it.

Likewise, conciliation settlements, or agreements, 
and consent decrees do not generally include parties 
with an interest in opposing or limiting the nature 
and degree of affirmative action. Rather, the dis­
gruntled parties involved, if  any, tend to be those who 
argue that they have not received enough relief. The 
steel industry litigation involving two consent decrees 
adopted in 1974 is an excellent example of the process 
at work. See United States v. Allegheny-Ludlum In­
dustries, Inc., 517 F.2d 826 (5th Cir. 1975), cert, de­
nied, 425 U.S. 944 (1976).

If innocent employees are not made parties from the 
very start, they can only defend their interests if they 
are quick enough to realize what might happen to them 
before it actually does and seek to intervene before 
time defeats them.

Realistically, many potential victims of quotas will 
not act in time to intervene in existing proceedings, 
whether the proceedings are before a government agen­
cy or before a court, since they generally fail to react 
until the quota implementation has its adverse impact 
on them. Their failure to intervene will prevent a 
proper representation of their interests unless the de­



13

cision makers are constrained by the strict requirement 
o f finding past illegal discrimination and identifying 
victims before instituting a quota. If the adoption of 
quotas is so carefully circumscribed, the dangers of 
creating new victims o f quota discrimination will be 
greatly reduced. Quotas properly used will be strict­
ly remedial and will produce no adverse consequences 
for anyone.

The approach to quotas which Southeastern urges 
this Court to adopt is, we believe, the only approach 
which adequately balances the private settlement theme 
of Title VII, Title V II’s specific prohibition against 
employment discrimination, the overall purpose of Title 
V II to guarantee equal employment opportunities for 
all, and the equitable principles enunciated by this 
Court in Teamsters, supra at 376. Unlike the peti­
tioners, Southeastern does not attach such superior and 
overriding importance to voluntary settlement as to 
justify virtually any form of voluntarily adopted af­
firmative action. However, while quotas must be lim­
ited in use and only allowed after certain conditions 
are met, they are not foreclosed by the approach sug­
gested in this brief.



14

CONCLUSION

Southeastern respectfully urges this Court to affirm  
the decision of the Fifth Circuit by holding that quotas 
may be used only after a factual finding of past illegal 
discrimination and then only to provide relief to identi­
fied victims of the illegal discrimination by placing 
them, so far as practicable, in their rightful places. 
This Court is further urged to apply this standard to 
all entities which might adopt or order the use of 
quotas.

Respectfully submitted,

B e n  B . B l a c k b u r n  
W a y n e  T . E l l io t t  
A l l e n  R . H ir o n s

Attorneys for Southeastern Legal 
Foundation, Inc.

Southeastern Legal Foundation, Inc.
1800 Century Boulevard 
Suite 950
Atlanta, Georgia 30345 
(404) 325-2255