Griffin v. Dugger Petition for Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit
Public Court Documents
January 1, 1987
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Brief Collection, LDF Court Filings. Local 28, Sheet Metal Workers v. Equal Employment Opportunity Commission Brief of Respondent, 1985. 67994161-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/34f6b10e-c01a-4890-8c76-486663b167cf/local-28-sheet-metal-workers-v-equal-employment-opportunity-commission-brief-of-respondent. Accessed April 29, 2025.
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No. 84-1656
I n the
Supreme (Enurt of tije Mnitcfc States
October T erm , 1985
L O C A L 28 O F T H E S H E E T M E T A L
W O R K E R S ’ IN TER N A TIO N A L A SSO C IA TIO N ,
L O C A L 28 JO IN T A PP R E N T IC E SH IP C O M M IT T E E ,
• Petitioners,
-against-
EQ U A L E M P L O Y M E N T O P PO R TU N ITY
C O M M ISSIO N , T H E C IT Y O F N E W Y O R K , and N EW
YO RK ST A T E D IV ISIO N O F HUMAN R IG H T S,
Respondents.
BRIEF OF RESPONDENT NEW YORK STATE
DIVISION OF HUMAN RIGHTS
LAWRENCE S. KAHN
COLVIN W. GRANNUM
JANE LEVINE
MARTHA J. OLSON
Assistant Attorneys G eneral
MARGARITA ROSA
G eneral Counsel
New York State Division o f
Human Rights
55 West 125 Street
New York, NY 10027
ROBERT ABRAMS
Attorney G eneral o f the
State o f New York
Attorney fo r Respondent
New York State Division
o f Human Rights
Two World Trade Center
New York, New York 10047
(212) 488-3943
ROBERT HERMANN
Solicitor G eneral
O. PETER SHERWOOD
Deputy Solicitor G eneral
Counsel o f R ecord
QUESTIONS PRESENTED
1. Are challenges in this Court to rulings made a decade ago in
this action now barred?
2. May a party held in contempt for violating an injunction, avoid
sanctions on the basis of a claim that the sanctions are not
authorized by the statute on which the underlying injunction was
based?
3. Assuming the Court concludes that questions concerning the
scope of Title VII remedies should be addressed, does Title VII
of the Civil Rights Act of 1964 require that a court’s remedial
order, entered after a finding of consistent and egregious racial
discrimination, always be so narrowly drawn as to preclude gran
ting prospective race-conscious relief benefiting individuals who
have not been specifically identified as the victims of the defen
dant’s unlawful discrimination?
4. Does the fifth amendment bar a court from enforcing its
remedial orders by imposing civil contempt sanctions containing
race-conscious provisions which benefit persons who are not
necessarily the identified victims of unlawful discrimination?
5. Assuming the Court concludes that rulings made ten years ago
are still open for review: Did the district court properly conclude
(a) that petitioners had violated Title VII of the Civil Rights Act
of 1964 and (b) that the court had authority to appoint an ad
ministrator to oversee the day-to-day implementation of that
court’s remedial orders?
11
TABLE OF CONTENTS
Questions Presented ......................................................... i
Statement of the Case ........... 1
I. Preliminary Statem ent........................................... 1
II. Proceedings Against Local 28 Prior to this
Federal Court A ction............................................. 2
III. Federal Court Proceedings Prior to the
Contempt M otion................................................... 4
A. Judge Gurfein’s Consent O rd ers.................. 4
B. Liability D eterm ination.................................. 5
C. The First Appeal (1976).................................. 6
D. Entry of RAAPO............................................... 7
E. The Second Appeal (1977)............................. 7
IV. The Contempt Proceedings.................................. 7
A. The First Contempt Decision (1 9 8 2 ) ........... 8
B. The Second Contempt Decision (1983) . . . 10
C. The Fund O rd er............................................... 10
D. AAAPO................................................. 11
E. The Third Appeal (1984)............... 11
Summary of Argument.................................................... 13
Page
I l l
Argument . .............. ............................................................ 15
I. Petitioners’ Challenge to Rulings Made a
Decade Ago Are Untimely. . . . . . . . . . . . . . . . . 15
II. AAAPO And The Fund Are Appropriate
Exercises of Civil Contempt Powers . .............. 20
A. Clear and Convincing Evidence Supports
the Contempt Findings Below .................... 20
B. The Fund and AAAPO Constitute a
Precisely Crafted Civil Contempt Sanction
Rather Than a Criminal Penalty ................. 23
C. The Civil Contempt Sanctions Imposed
Are Not Limited by Title V I I ....................... 26
III. The Race-Conscious Remedies Imposed By
The Court Below Comport W ith Title V II
And The Fifth Amendment......................... 28
A. The Race-conscious Remedies Ordered By
The District Court Are Authorized Under
Title V I I ...................... 29
1. A remedy furthering the primary
objective of Title V II of eradicating
discrimination and its continuing effects
is within the scope of section 706(g) of
the A ct.......................................................... 29
2. Section 706(g) grants district courts
broad equitable authority to impose
goals and other race-conscious relief
necessary to remedy proven
discrimination.................................................. 32
Page
IV
a. The plain language of section 706(g)
demonstrates that race-conscious relief
may benefit persons who are not
proven victims of discrimination......... 33
b. The legislative history of Title VII
supports the plain meaning
construction of 7 0 6 (g )............................. 34
3. The decisions of this Court and the
courts of appeals support the use of
narrowly tailored race-conscious
remedies to redress the effects of past
discrimination........... ....................... 42
4. The race-conscious remedies imposed by
the court below further the purposes of
Title V II and are fully supported by the
record................................................................. 48
B. The Remedies Imposed Comport with The
Equal Protection Component of The Due
Process Clause of the Fifth Amendment . . 53
IV. The Creation Of The Office Of
Administrator Was Proper.................................... 57
V. Petitioners’ Challenge To Its Liability And
The Goal, Based On H azelw ood School
District v. United States, 433 U.S. 299
(1977), Is M eritless................................................. 60
Conclusion.......................................................................... 62
Appendix ............................................................................ A-l
Page
TABLE OF AUTHORITIES
Cases:
A dickes v. S.H. Kress ir C o., 398 U.S. 144 (1970) 16
A lbem arle Paper Co. v. M oody, 422 U.S. 405
(1 9 7 5 ) ........................................................ passim
Alexander v. Gardner-D enver C o., 415 U.S. 36
(1 9 7 4 ) .......................... 30
Arizona v. C aliforn ia, 460 U.S. 605 (1983) ........... 16, 17, 18
Association Against Discrimination v. City o f
Bridgeport, 479 F. Supp. 101 (D. Conn. 1979),
on rem and fro m , 594 F.2d 306 (2d Cir. 1979) . 50
Association Against Discrimination in
Em ploym ent, Inc. v. City o f Bridgeport, 647
F,2d 256 (2d Cir. 1981), cert, den ied , 455 U.S.
988 (1982) ...................................................................... 44
Berkem er v. M cC arty ,____ U .S ._____, 104 S.Ct.
3138 (1984) ................................................... 20
Bivens v. Six Unknown N am ed Agents o f F ederal
Bureau o f N arcotics, 403 U.S. 388 (1971)........... 27
Bob Jones University v. United States, 461 U.S.
574 (1983) ..................................................................... 38, 42,
55
Boeing Co. v. Van G em ert, 444 U.S. 472 (1980) . 16
Boston C hapter, NAACP, Inc. v. Beecher, 504
F.2d 1017 (1st Cir. 1974), cert, den ied , 421
U.S. 910 (1975)............................................................. 44
Page
VI
Bradley v. School Board, 416 U.S. 696 (1974) . . . . 32
Brandon v. H o l t ,___ _ U.S. _____, 105 S.Ct. 873
(1985) .................................. 16
Bridgeport Guardians, Inc. v. Civil Service
Com m ission, 354 F. Supp. 778 (D. Conn.),
a f f d in part and rev ’d in part, 482 F.2d 133
(2nd Cir. 1 9 7 3 ) ........................................................ 50
Brow der v. D irector, D epartm ent o f Corrections,
434 U.S. 257 (1 9 7 8 ) .................................................... 16
Brown v. Swann, 35 U.S. (10 Pet.) 497 (1836) . . . 27
Buckner v. G oodyear Tire 6- R u bber C o., 339 F.
Supp. 1108 (N.D. Ala. 1972), a f fd , 476 F.2d
1287 (5th Cir. 1973)...................................... 38
Carpenters v. N LRB, 365 U.S. 651 (1 9 6 1 ).............. 33
C arter v. G allagher, 452 F.2d 315 (8th Cir. 1971)
(en banc), cert, den ied , 406 U.S. 950 (1972) . . . 37, 50
Castro v. B eecher, 334 F. Supp. 930 (D. Mass.
1971), a f f ’d in part and rev ’d in part, 459 F.2d
725 (1st Cir. 1 9 7 2 ) ..................................................... 38
Chisolm v. United States Postal Service, 665 F.2d
482 (4th Cir. 1981) ....................................................... 44
Class v. N orton, 505 F.2d 123 (2d Cir. 1974) . . . . 19
Com m issioner v. Sunnen, 333 U.S. 591 (1948) . . . 20
Com munist Party o f the United States v.
Subversive Activities Control Board, 367 U.S. 1
(1 9 6 1 ) .............................................................................. 56
Page
Consolidated Edison Co. v. N LRB, 305 U.S. 197
(1 9 3 8 ) ............................................................................... 33
Contractors Association v. Secretary o f L abor ,
442 F.2d 159 (3d Cir.), cert, den ied , 404 U.S.
854 (1971) ...................................................................... 36
C ooke v. United States, 267 U.S. 517 (1 9 2 5 )........ 26
Cummings v. Missouri, 71 U.S. (4 W all.) 277
(1 8 6 7 ) .............................................................................. 57
Daly v. United States, 393 F.2d 873 (8th Cir.
1968)................................................................................. 18
Davis v. County o f Los Angeles, 566 F.2d 1334
(9th Cir. 1977), vacated as m oot, 440 U.S. 625
(1979) .................... 44
D etroit Police O fficers Association v. Young, 608
F.2d 671 (6th Cir. 1979), cert den ied , 452 U.S.
938 (1981) ........................................................ 44
D othard v. Rawlinson, 433 U.S. 321 (1977)............. 30
D oyle v. London G uarantee i? A ccident C o., 204
U.S. 599 (1907 )..................... ....................................... 23
EEO C v. A m erican Telephone <Lr Telegraph, 556
F.2d 167 (3d Cir. 1977), cert, den ied , 438 U.S.
915 (1978) ..................................................................... 34, 44
Ex Parte G arland, 71 U.S. (4 Wall) 333 (1 8 6 7 )... 57
Ex Parte Robinson, 86 U.S. 505 (1873)...................... 27
F ederated D epartm ent Stores v. M oitie, 452 U.S.
394 (1981) ..................................................................... 18, 20
FTC v. M inneapolis-Honey w ell Regulator C o.,
344 U.S. 206 (1 9 5 2 ) .................................................... 19
v u
Page
vm
Firefighters L o ca l Union No. 1784 v. Stotts, 467
U.S. 561, 104 S. Ct. 2576 (1984) ............................ 14, 20,
34, 40,
48
Ford M otor Co. v. EEO C , 458 U.S. 219 (1982) . . 30, 31,
32
Franks v. Bow m an Transportation C o ., 424 U.S.
747 (1976) ......... ........................ ................................... passim
Fullilove v. Klutznick, 448 U.S. 448 (1 9 8 0 )........... passim
Gary W. v. State o f Lou isiana , 601 F.2d 240 (5th
Cir. 1979).............................. .............. .. 58
G om pers v. B u ck’s Stove 6- Range C o., 221 U.S.
418 (1911) ...................................................................... 22, 24
Griggs v. D uke Pow er C o., 401 U.S. 424 (1971). . 15, 30,
50
H alderm an v. Pennhurst State School i? H ospital,
673 F,2d 628 (3d Cir. 1982) ( en ban c), cert.
den ied , 465 U.S. 1038 (1 9 8 4 ) .................................. 18
H azelw ood School District v. United States, 433
U.S. 299 (1977 )......................... ................................... 7, 16,
60, 61
H echt Co. v. Bowles, 321 U.S. 321 (1944).............. 27
House v. Secretary o f H ealth and Human
Services, 688 F.2d 7 (2d Cir. 1 9 8 2 )...................... 17
Hutto v. Finney, 437 U.S. 678 (1978 )....................... 25, 26,
27
Page
IX
INS v. C hadha, 462 U.S. 919 (1983)......... ............... 41
In Re Peterson, 253 U.S. 300 (1 9 2 0 ) ......................... 59
International B rotherhood o f Teamsters v. United
States, 431 U.S. 324 (1977 )...................................... passim
fam es v. Stockham Valves ir Fittings C o., 559
F,2d 310 (5th Cir. 1977), cert, den ied , 434
U.S. 1034 (1978 )........................................................... 44
L a Buy v. H ow es L ea th er C o., 352 U.S. 249
(1 9 5 7 ) ............................................................................... 60
Lem an v. Krentler-Arnold Hinge Last C o., 284
U.S. 448 (1 9 3 1 ).................................... ........................ 25, 28
L oca l 53, International Association o f H eat sb
Frost Insulators v. Vogler, 407 F.2d 1047 (5th
Cir. 1969), a f f ’g, 294 F. Supp. 368 (E.D. La.
1968)................................................................................. 37
L oca l 60, United B rotherhood o f Carpenters v.
N LRB, 365 U.S. 651 (1961) .................................... 33
Lorillard v. Pons, 434 U.S. 575 (1 9 7 8 )...................... 38
Louisiana v. United States, 380 U.S. 145 (1965) . . 46
Maggio v. Zeitz, 333 U.S. 56 (1 9 4 8 ) ........................... 18
M cCom h v. Jacksonville Paper C o., 336 U.S. 187
(1 9 4 9 ) .............................................................................. 22, 27,
28
M cDaniel v. Barresi, 402 U.S. 39 (1971) ................ 54, 56
Page
X
M cKnight v. United States Steel C orp ., 726 F,2d
333 (7th Cir. 1984)...................... 17
M ichigan v. L on g , 463 U.S. 1032 (1983) . . . . . . . . 29
M illiken v. B rad ley , 418 U.S. 717 (1974) . . . . . . . . 27, 48
M illiken v. Bradley, 433 U.S. 267 (1977) . . . . . . . . 22, 48
Mims v. W ilson, 514 F.2d 106 (5th Cir. 1975) . . . 50
M onsanto Co. v. Spray-Rite Service C orp ., 465
U.S. 752 (1984 )........................................................ 16
M orrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert.
den ied , 419 U.S. 895 (1974) . . . . . . . . . . . . . . . . . 19, 49,
50
M orrow v. D illard, 580 F.2d 1284 (5th Cir. 1978) 49
Myers v. G ilm an Paper C orp ., 544 F.2d 837 (5th
Cir.), cert, dismissed, 434 U.S. 801 ( 1 9 7 7 ) . . . . . 59
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1 9 7 4 ) .. . 37, 49
N ational C ollegiate A thletic Association v. Board
o f R eg en ts ,____ U .S ._____, 104 S. Ct. 2948
(1 9 8 4 ) ............................................................................... 21, 61
N LRB v. Bell A erospace C o., 416 U.S. 267 (1974) 44
N LRB v. L oca l 282, International B rotherhood o f
Teamsters, 428 F.2d 994 (2d Cir. 1 9 7 0 ).............. 19
N evada v. United States, 463 U.S. 110 (1983) . . . . 20
New York State Association fo r R etarded Children
v. Carey, 706 F.2d 956 (2d Cir.), cert, den ied ,
464 U.S. 915 (1 9 8 3 ) ........................................... 58
Page
X I
New York State Commission fo r Human Rights v.
Farrell, 47 Misc. 2d 799, 263 N.Y.S.2d 250
(Sup. Ct. N.Y. Co. 1965) ........................................ 2, 3
Nixon v. Adm inistrator o f G eneral Services, 433
U.S. 425 (1977 )............................................... ............. 57
North Carolina State Board o f Education v.
Swann, 402 U.S. 43 (1 9 7 1 )...................................... 54, 56
North Haven B oard o f Education v. Bell, 456
U.S. 512 (1982 )............................................................. 38
N orthern Pipeline Construction Co. v. M arathon
Pipe L ine C o., 458 U.S. 50 (1982)......................... 59
Paradise v. Prescott, 767 F.2d 1514 (11th Cir.
1985)................................................................................. 44
Pasadena Board o f Education v. Spangler, 427
U.S. 424 (1976 )............................................................. 16
Penfield Co. v. SEC, 330 U.S. 585 (1 9 4 7 ) ................ 22
Porter v. W arner Holding C o., 328 U.S. 395
(1 9 4 6 )............................................................................... 27
Pow ell v. W ard, 643 F.2d 924 (2d Cir.), cert.
den ied , 454 U.S. 832 (1 9 8 1 ) .......................... 21
Pullman-Standard v. Swint, 456 U.S. 273 (1982) . 9
Red L ion Broadcasting Co. v. FC C , 395 U.S. 367
(1 9 6 9 ) ............................................................................... 44
Regents o f the University o f California v. B akke,
438 U.S. 265 (1 9 7 8 ) .................................................... 37, 44,
54, 55,
56
Page
X ll
Rios v. Enterprise Association Steam fitters L o ca l
638, 501 F.2d 622 (2d Cir. 1 9 7 4 ) . . . . . . . . . . . . . 44
R oadw ay Express, Inc. v. Piper, 447 U.S. 752
(1980) . ...................................................... ...................... 27
Rogers v. L odge, 458 U.S. 613 (1982)................ 61
Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982),
cert, den ied , 460 U.S. 1042 (1983) ....................... 58, 59
Selective Service System v. M innesota Public
Interest R esearch G r o u p ,____U .S ._____ , 104
S. Ct. 3348 (1984) ........... .. 56
Shillitani v. United States, 384 U.S. 364 (1 9 6 6 )... 22
Sidney v. Zah, 718 F.2d 1453 (9th Cir. 1983) . . . . 19
Southern Illinois Ruilders Association v. Ogilvie,
471 F.2d 680 (7th Cir. 1972) . . . . . . . . . . . . . . . . 36
Swann v. Charlotte-M ecklenburg B oard o f
Education , 402 U.S. 1 (1971) .............................. 27, 48,
54, 56
System Federation No. 91 v. W right, 364 U.S.
642 (1961) ............................................... .. 16, 17
Taylor v. Jones, 489 F. Supp. 498 (E.D. Ark.
1980), a f f ’d , 683 F.2d 1193 (8th Cir. 1981) . . . . 51
Thom pson v. Sawyer, 678 F.2d 257 (D.C. Cir.
1 9 82 )............................................. 44
Thorn v. R ichardson, 4 F .E .P . Cases 299 (W .D.
Wash. 1971).................................................................... 37
Page
X1U
United Jew ish Organization v. C arey , 430 U.S.
144 (1977) ...................................................................... 54, 55,
56
United States v. Arm our ir C o., 398 U.S. 268
(1 9 7 0 ) ............................................. 26
United States v. City o f Buffalo, No. 85-6212 (2d
Cir., December 19, 1 9 8 5 ) ......................................... 47
United States v. City o f Chicago, 549 F.2d 415
(7th Cir.), cert, den ied , 434 U.S. 875 (1977) . . . 44
United States v. Hudson, 11 U.S. (7 Cranch) 32
(1 8 1 2 ) ................................................................. .. 26
United States v. International Union o f Elevator
Constructors, L oca l 5, 538 F.2d 1012 (3d Cir.
1976)................................................................................. 44
United States v. Ironw orkers L oca l 86, 443 F,2d
544 (9th Cir.), cert, den ied , 404 U.S. 984
(1 9 7 1 ) ............................................................................. 37
United States v. L e e W ay M otor Freight, Inc.,
625 F.2d 918 (10th Cir. 1979) ................................. 37
United States v. L oca l 638, 337 F. Supp. 217
(S.D.N.Y. 1972) .......................................................... 37
United States v. Lovett, 328 U.S. 303 (1946)......... 56, 57
United States v. M ontgom ery County Board o f
Education, 395 U.S. 225 (1 9 6 9 )............................. 23, 54
United States v. N .L. Industries, In c., 479 F.2d
354 (8th Cir. 1973)...................................................... 30, 44
United States v. R addatz, 447 U.S. 667 (1980) . . . 59
Page
X IV
Page
United States v. Rylander, 460 U.S. 752 (1983) . . 18
United States v. Secor, 476 F.2d 766 (2d Cir.
1 973 )............................................. .. .............. .. 18
United States v. Sheetm etal W orkers, L o ca l 10, 3
CCH Empl. Prac. Dec. 1 8,068 (D.N .J. 1970) . 37
United States v. Sheetm etal W orkers, L o ca l 36,
416 F.2d 123 (8th Cir. 1 9 6 9 ) ........... ...................... 37
United States v. Swift <b C o., 286 U.S. 106 (1932) 17
United States v. United M ine W orkers, 330 U.S.
258 (1947) ..................................................................... 22, 25,
26
United Steelw orkers v. W eber, 443 U.S. 193
(1 9 7 9 ) ........... passim
W alker v. City o f B irm ingham , 388 U.S. 307
(1 9 6 7 ) ............................................................................... 27
W einberger v. R om ero-B arcelo , 456 U.S. 305
(1 9 8 2 ) .......................................................... 27
W illiams v. City o f New Orleans, 729 F.2d 1554
(5th Cir. 1984) (en b a n c ) ......................................... 44
W orld ’s Finest C hocolate Inc. v. W orld Candies,
In c., 409 F. Supp. 840 (N.D. 111. 1976), a f f ’d,
559 F.2d 1226 (7th Cir. 1977) ............................... 18
Wirtz v. L oca l 153, Glass Bottleblow ers
Association, 389 U.S. 463 (1968) ............................. 58
XV
Constitution and Statutes:
U.S. Const.:
Amend. V (Due Process Clause)............................. 53
Amend. XIV ................................................................. 37
Civil Rights Act of 1964........... ...................................... passim
Tit. V II, 42 U .S.C. § 2000e et s eq ......................... 2, 5
42 U .S.C. § 2000e-2(j) ........................... 33, 35
42 U.S.C. § 2000e-2(h)........................... 43
42 U .S.C. § 2000e-5(g).................. .. passim
42 U.S.C. § 2000e-6(a)........................... 32, 43
42 U.S.C. § 2000e-6 (c)........................... 43
42 U.S.C. § 2000e-14 ............................. 43
42 U .S.C. § 2000e~16 ............................. 42
Tit. X I, 42 U .S.C. § 2000h et seq. ...................... 27
29 U.S.C. § 1 6 0 (c ) ........................................................ 32
28 U.S.C. § 2101 ............................................................. 16
1968 N.Y. Laws ch. 958 ............................................... 4
New York City Administrative Code § B l-7 .0 . . . . 4, 5, 29
Page
X V I
Rules, Regulations and Orders:
Sup. Ct. R. 20 .................... 16
Sup. Ct. R. 21 .1 (a ) ....................... 20
Fed. R. Civ. P. 5 2 (a ) ........... 9
Fed. R. Civ. P. 5 3 ............................. 59
Fed. R. Civ. P. 60(b)(6) ................................................ 17
Fed. R. Crim. P. 4 2 ......... ................................... ........... 27
28 C .F .R . § 42.203 (i, j) (1 9 8 5 ).................... 43
29 C .F .R . § 1607.17 (1985)........................... 43
29 C .F .R . § 1608.1(b) (1 9 8 5 ) ........................ 29
29 C .F .R . § 1608.4(c) (1 9 8 5 ) ........... 43
E .O . 11246, 30 Fed. Reg. 12,319 (1965) ................ 36, 40
E .O . 12067, 43 Fed. Reg. 19,807 (1978) . . . . . . . . 43
41 Fed. Reg. 38,814 (1976 )........................................... 43
Legislative History:
110 Cong. Rec. (1964)
p. 1 5 1 8 ............................................................... 35
p. 1540 ................................................................. 35
p. 1600 ............................................................................. 35
p. 6548 .................... 29
p. 6566 ........................................................................ 35
p. 2558 ............................. 35
p. 2567-70 ...................................................................... 34
p. 5092 ............................................................................. 35
Page
X V II
p. 6547-49 ...................................................................... 29, 30,
34, 35
p. 6566 ............................................................................. 30
p. 7204 ........................................ 30
p. 7207 ................................................. 35
p. 7 2 1 3 -1 4 ...................................................................... 35
p. 8921 ............................................... 35
p. 11,848 ................................................. 35
p. 14,465 ........................................ 35
p. 15,876 ...................................... 35
115 Cong. Rec. (1969)
p. 39,961 ........................................................................ 37
p. 40,039 . ................................................. 37
p. 40,740-746...................................... 36 , 41
p. 40,905-909............................... 36, 41
p. 40,915-919................................................................. 36 , 41
p. 40,921 ........................................................................ 36
117 Cong. Rec. (1971)
p. 31,965-967........................... 40 , 41
p. 32,099-100................................................................. 41
p. 3 2 ,1 1 1 ........... 40
118 Cong. Rec. (1972)
p. 1661-76 ...................................................................... 36, 37,
40
p. 2298 ............................................................................ 42
p. 4917-18 ........................................ 40
p. 7167-68 ...................................................................... 38
H.R. Rep. No. 238, 92 Cong., 1st Sess. (1971),
reprinted in 1972 U.S. Code Cong. & Ad News
2137 ................................................................................. 31, 32,
38, 40
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1964),
reprinted in 1964 U.S Code Cong. & Ad. News
2391 ................................................................................. 30, 34
Page
XV111
S. Rep. No. 415, 92d Cong., 1st Sess. (1971)......... 30, 38,
42
Sub, Comm, on Labor of the Senate Comm, on
Labor & Public Welfare, 92d Cong., 2d Sess.,
Legislative History o f the E qual Em ploym ent
Opportunity Act o f 1972 (Comm. Print 1972) . . passim
EEO C , Legislative History o f Titles VII and XI
o f the Civil Rights Act o f 1964 ................................ 34, 35
Law Review Articles:
Beale, C ontem pt o f Court, Crim inal and Civil, 21
Harv. L. Rev. 161 (1 9 0 8 ) ...................................... . 26
Blumrosen, The Duty o f Fair Recruitm ent, 22
Rutgers L. Rev. 465, 490 (1968) ......... .. 51
Comment, The Philadelphia Plan: A Study in the
D ynamics o f Executive Powers, 39 U. Chi. L.
Rev. 723 (1972)............................................................. 37, 40
Harris, The Title VII Adm inistrator: A Case
Study in Ju d icia l Flexibility, 60 Cornell L. Rev.
53 (1974) ............................................... ........................ 58
Special Project, The R em edial Process in
Institutional R eform Litigation , 78 Colum. L.
Rev. 784, 846 (1978) .................. ............................ .. 58
Speigelman, C ourt-O rdered Hiring Quotas A fter
Stotts, 20 Harv. C .R .-C .L .L . Rev. 339 (1985) . 45, 51
Page
X IX
Page
Miscellaneous:
4 W. Blackstone, Commentaries........... ...................... 26
42 Op. Atty. Gen. 405 (1969)...................... 36
1 1 C . Wright & A. Miller, F ederal Practice &■
P ro ced u re ............................... ..................................... . 17
IB J , Moore, M oore’s F ederal Practice (2d ed.
1982)................................................................................. 17
7 J. Moore, M oore’s F ederal Practice (2d ed.
1985)............................... 17
Restatem ent (Second) Judgm ents (1 9 8 2 ) ................. 17
1
STATEMENT OF THE CASE
I. Preliminary Statement
The contempt orders before the Court constitute the most re
cent in a two decade-long, judicially supervised effort to com
pel Local 28 of the Sheet Metal Workers International Associa
tion (“Local 28”) and its Joint Apprenticeship Committee (“JAC”)
to comply with local, state and federal fair employment laws.
Since 1964, Local 28 and the JAC (collectively referred to as “the
Local” or “petitioners”) have been found repeatedly to have
discriminated unlawfully against minorities, to have ’consistently
and egregiously” violated the fair employment laws and to have
“defied” enforcement orders (A. 212, 215)} Nevertheless, they now
are asking the Court to rewrite that history. They claim that the
ten-year old liability determination of the district court was
wrong, that important elements of the district court’s long
standing remedial order are unauthorized and that they should
not have been held in contempt.
The United States government1 2 initiated this case in 1971,
established liability, urged the remedial measures adopted by the
court and repeatedly defended all of the court’s remedial and
coercive orders (JA. 5-8, 157-61, 275-83, 372-74). The Equal
Employment Opportunity Commission (“EEO C”), which is
represented in this Court by the Solicitor General,3 agrees with
1 The designation “A .____ ” refers to pages in the appendix to the Petition for
Writ of Certiorari. The designation “JA. ____ ” refers to pages of the Joint
Appendix.
2 This action was filed on June 29, 1971, on behalf of the United States (JA.
372, 344). In April 1974, as a result of the 1972 amendments to Title V II of
the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-6(c), the Equal Employ
ment Opportunity Commission was substituted for the United States as plain
tiff. (JA. 344).
3 Because the argument of the United States in this case is set forth in briefs
filed in four separate cases currently before the Court and the EEO C appears
in only this case, respondent will refer to the United States or the EEOC, as
the case may be, as simply the “Solicitor.” The form of citation used for referr
ing to the Solicitor’s briefs in the four cases is as follows:
Brief for the EEO C in No. Sol. Loc. 28 B r .____
84-1656, L oca l 28 v. E EO C
(footnote continued)
2
respondents City of New York (“City”) and New York State Divi
sion of Human Rights (“State”) that petitioners properly were
held in civil contempt and that the sanctions ordered constituted,
with an important exception, appropriate civil contempt
remedies. Nonetheless, the Solicitor now contends that the 29 %
goal, and the race-conscious aspects of the contempt order it too
joined in seeking, are beyond the power of the district court.
The contempt orders draw their significance from the facts
found and the extensive prior proceedings in this case. Because
neither the petitioners nor the Solicitor have adequately described
the facts and prior proceedings, respondent restates them below.
II. Proceedings Against L oca l 28 Prior
to This Federal Court Action.
Local 28 was formed in 1913 under an international union con
stitution which contemplated the establishment of racially
segregated “white local union(s)” and, if necessary, black “aux
iliary local unions.” The black unions were to be “subordinate
to the established and affiliated white local union” (A. 322, JA.
318). Although racial restrictions were deleted from the interna
tional constitution in 1946, Local 28 retained its racially exclusive
character until 1969, long after the effective date of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title
V II”) (JA. 314, 333-34). The union did not waver in its racially
restrictive admissions practices except under court orders (A. 411,
JA. 320, A. 215, 300, 182, 125, 119, 111, 108). See also New York
State Commission fo r Human Rights v. Farrell, 47 Misc. 2d 799,
263 N.Y.S. 2d 250 (Sup. Ct. N.Y. Co. 1965).
In 1964, the New York State Commission For Human Rights4
found petitioners guilty of a continuing pattern of unlawful
Amicus curiae brief for the United States Sol. Loc. 93 Br. ____
in No. 84-1999, L oca l 93 v. City o f
C leveland
Amicus curiae brief for the United States Sol. Wygant Br. ____
in No. 84-1340, Wygant v. Jackson Board o f
Education
Amicus curiae brief for the United States Sol. Orr Br. ____
in No. 85-177, Orr v. Turner
4 In 1968, the State Commission was reorganized and renamed the New York
State Division of Human Rights. See 1968 N.Y. Laws ch. 958.
3
discriminatory practices caused by pervasive nepotism within the
union as well as a naked policy of not admitting blacks (JA. 381,
407). It ordered petitioners to “cease and desist from denying to
. . . Negroes because of their race . . . the right to be admitted
to . . . the sheet metal apprenticeship program”5 (JA. 388).
Because the Local ignored its order, later that year the Com
mission commenced a proceeding in the New York State Supreme
Court to force compliance (A. 411). Justice Jacob Markowitz con
firmed that the Local had violated the New York Law Against
Discrimination. He supervised negotiations aimed at racially in
tegrating the union and creating a remedial program which
substituted an objective apprentice selection procedure for the
existing nepotistic selection system (A 415, 421). Justice Markowitz
ultimately entered an order, entitled the “Corrected Fifth Draft
of Standards for the Admission of Apprentices” (“Corrected Fifth
Draft”), which provided for selection of apprentices on the basis
of education, written test scores and personal interviews (A. 427,
431). He rejected Local 28’s suggestion that “some preference”
be given applicants with familial ties to union members (A. 421).
The parties also negotiated an agreement, approved by the court,
requiring the JAC to indenture two 65-person apprenticeship
classes. See Farrell, 47 Misc. 2d at 799. As these agreements were
reached, Justice Markowitz noted that the adopted plan “was
the result of the unusual cooperative spirit” of the parties (A. 425;
see also A. 440). Although not acknowledged by petitioners, “by
1965, Justice Markowitz’ praise had turned to fury” (A. 139)
because the union had disregarded its court-ordered obligations.
Claiming unemployment among its members, the union reduc
ed the size of the second apprentice class from 65 to 30. In his
decision ordering the union to comply with his previous order,
Justice Markowitz declared: “[t]he union, unilaterally, is attempt
ing to halt or severely limit the process of its legally required in
tegration . . . .” Farrell, 47 Misc. 2d at 800. By 1969, however,
the union had devised a means of circumventing Justice
Markowitz’s prohibition of nepotism in the selection of appren
tices: it began paying for pre-examination training sessions for
5 Participation in the apprenticeship program is the principal means of admis
sion to membership in Local 28 (A. 325, JA. 303).
4
relatives of union members (A. 352). Furthermore, in the areas
governing access to work in the construction sheet metal trade
that had not been specifically addressed by Justice Markowitz,
the union’s policy of racial exclusion continued unchecked. See
p. 5, infra.
III. Federal Court Proceedings
Prior to the Contem pt Motion
In June 1971, the United States Department of Justice, pur
suant to Title VII, filed this suit against the Local to enjoin a
pattern and practice of discrimination against black and Spanish
surnamed individuals (“minorities”) who sought membership in
Local 28 and training and job opportunities in the sheet metal
trade in New York City. At that time (seven years after the State
had first taken action), minorities constituted 1.63% of the union’s
membership (JA. 323). The City intervened and alleged, inter
alia, that the union and JAC were violating the City’s fair employ
ment practices ordinance, Bl-7.0 of the New York City Ad
ministrative Code (“NYC Code § ____ ”), and were frustrating
the City’s efforts, through its contract compliance program, to
increase training opportunities for minorities.6
A. Judge Gurfein’s Consent Orders
In early 1974, work stoppages occurred on New York City and
New York City Board of Education construction sites. They were
aimed at preventing sheet metal contractors from employing
minority trainees on City and Board of Education funded con
struction projects. In response, the Sheet Metal Contractors
Association (“Contractors Association”) sought a court order in
this action restraining Local 28 from engaging in such work
stoppages7 (JA. 355). As a result of this court action, the late
United States District Judge Murray Gurfein, in April and July,
6 The Local joined the State as a third party defendant but the State was realign
ed as a plaintiff (A. 319).
7 As of 1974, Local 28 was the only union local in New York City that refused
to participate voluntarily in the New York Plan For Training, the program that
provides for the training and employment of minority “trainees” on federal and
New York State construction projects in New York City (JA. 354, 320).
5
1974, entered consent orders which required the JAC to inden
ture at least 40 minority apprentices by September 30, 1974 (JA,
363-64, 356). The union did not meet the September 30 deadline.
It did little to comply with Judge Gurfein’s orders until it faced
the immediate threat of a contempt finding8 (A. 352, JA, 345-47,
356-58).
B. Liability Determination
Following a trial in 1975 before the late United States District
Judge Henry Werker, the court found that petitioners had in
tentionally discriminated against minorities in violation of both
Title VII and NYC Code § Bl-7.0 by administering discriminatory
entrance examinations; excluding persons who lacked a high
school diploma; offering cram courses to the sons and nephews
of union members but not to minority applicants; refusing to ac
cept blowpipe sheet metal workers for membership because most
such workers were members of minority groups; consistently
discriminating in favor of white applicants seeking to transfer
into Local 28 from sister locals; refusing to administer journeyman
examinations because of their concern that minority candidates
would do well, and, instead, issuing work permits to non
members on a discriminatory basis; and failing to organize non
union sheet metal shops owned bv or employing minorities (A.
330-50).
On the basis of these findings and a recognition that the “record
in both state and federal court against these defendants is replete
with instances of . . . bad faith attempts to prevent or delay af
firmative action” (A. 352), the court, on August 29,1975, entered,
pursuant to Fed. R. Civ. P. 54, an Order and Judgment (“O&J”).
It enjoined petitioners from all violations of Title VII and ordered
them to achieve, by July 1, 1981, a remedial goal of 29 % minority
membership (JA. 142, A. 305, 354). This goal was based on the
8 Petitioners refer to these consent orders when they declare that “racial hiring
pursuant to fixed and intransigent percentages has been involved in this action
even before the entry of the O&J in 1975.” Pet. Br. at 5 n.7. While claiming
that “these orders were complied with,” (id.) petitioners neglect to acknowledge
that, as the court of appeals observed, compliance occurred “under heavy
pressure” (A. 215). Petitioners also contend that they “objected” to Judge Gur
fein’s orders. Pet. Br. at 42, a contention which is unsupported by the record
(JA. 356-58).
6
relevant minority labor pool in New York City (A. 300, 305,
353-54). The court also ordered petitioners to eliminate the
diploma requirement for the apprenticeship program, to offer
non-discriminatory entrance exams for journeymen and appren
tices, and to allow transfers and issue temporary work permits
on a non-discriminatory basis (A. 354-56, 301-04, 308-10). Peti
tioners were required to engage in extensive recruitment and
publicity campaigns in minority neighborhoods in order to dispel
Local 28’s reputation for discrimination and to ensure a broad
applicant pool (A. 355, 312). They were also directed to main
tain records regarding applications, requests for transfer, inquiries
about permit slips and hiring (A. 355, 310-11). The court ap
pointed an administrator to supervise compliance with its decree
(A. 355, 305-07).
C. The First A ppeal (1976)
On appeal, the Court of Appeals for the Second Circuit af
firmed, finding ample evidence that petitioners “consistently and
egregiously violated Title V II” (A. 212). Indeed, the Local ’’[did]
not even make a serious effort to contest the finding of Title VII
violations” in this initial appeal (A. 215). The court upheld the
29 % goal as a temporary remedy, distinguishing it from ”a quota
used to bump incumbents or hinder promotion of present
members of the work force” (A. 221-22). It also upheld the re
quirement that entrance examinations be validated and ruled that
the testing schedules and recruitment requirements imposed by
the district court were appropriate exercises of the district court’s
discretion (A. 222). The court modified the relief ordered by
eliminating any provision that “might be interpreted to permit
white-minority ratios for the apprenticeship program after the
adoption of valid, job-related entrance tests” (A. 225). It con
cluded that the appointment of an administrator with broad
powers was “clearly appropriate,” given petitioners’ failure to
change their membership practices pursuant to the prior orders
of the district court and the New York State court (A. 220).
The Local did not seek review in this Court of the court of
appeals’ judgment, which finally determined all issues in the
action.
7
D. Entry o f RAAPO
On January 19, 1977, following the court of appeals’ affir
mance, the district court issued a revised affirmative action pro
gram and order (“RAAPO”) (A. 182). Among other things,
RAAPO granted the Local an additional year in which to meet
the 29 % membership goal. The court ordered the Local to make
“substantial and regular” progress every year in admitting
minorities to Local 28 (A. 183). Modifications were also made
to provide that, during a time of widespread unemployment in
the industry, apprentices would share equitably in available
employment opportunities in the industry (A. 183-84). The court
ordered the JAC to take all reasonable steps to insure that ap
prentices receive adequate employment opportunities and to in
denture two classes of apprentices each year, the size of each class
to be determined by the JAC, subject to review by the ad
ministrator (A. 192-93).
E. The Second A ppeal (1977)
The union and JAC appealed six provisions of RAAPO, in
cluding the apprenticeship indenture requirement and a provi
sion granting certain oversight powers to the administrator (A.
165). They also challenged the imposition of the goal and, on
the basis of the intervening decision of this Court in H azelw ood
School District v. United States, 433 U.S. 299 (1977), disputed
the 1975 finding of liability (A. 164-68). The court of appeals
rejected petitioners’ arguments based on H azelw ood , affirmed
RAAPO in its entirety and upheld the administrator’s powers (A.
160, 165-68). Once again, the Local did not seek a writ of cer
tiorari from this Court, even though Judge Meskill in dissent in
vited them to do so (A. 170 n.l).
IV. The Contem pt Proceedings
In 1982, the City and State, recognizing that Local 28 would
not achieve the 29 % goal by July 1 because it had failed to com
ply with several substantive provisions of the O&J and RAAPO,
moved for an order holding petitioners in contempt. The union
and JAC cross-moved for an order terminating the O&J and
RAAPO.
8
A. The First Contem pt Decision (1982)
Following a hearing, the district court found that the Local
had “impeded the entry of minorities into Local 28 in contraven
tion of the prior orders of this court” (A. 149-50).9 Judge Werker
held them in contempt for violating the O&J and RAAPO by
a) underutilizing the apprentice program to the detriment of
minorities; b) failing to undertake, as required by RAAPO, a
general publicity campaign intended to dispel petitioners’ reputa
tion for discrimination; c) failing to maintain and submit records
and reports; d) issuing work permits without prior authoriza
tion of the administrator; and e) entering into an agreement
amending their collective bargaining contract by adding a pro
vision that discriminates against Local 28’s minority members
by protecting members aged fifty-two or over during periods of
high unemployment. The cumulative effect of these contemp
tuous acts, the district court ruled, was that the Local failed even
to approach the 29 % goal, a benchmark of progress toward in
tegration and equal employment opportunity10 (A. 155-56).
The first contempt holding was based in part on the district
court’s finding that petitioners had deliberately underutilized the
apprenticeship program in order to limit minority membership
and employment opportunities. The court found that the JAG
trained substantially fewer apprentices after entry of the O&J
than before. The court rejected the Local’s contention that the
underutilization of the apprenticeship program resulted from a
downturn in the economy. To the contrary, the average number
9 Petitioners’ assertion, Pet. Br. at 9, that they had achieved a minority member
ship in Local 28 of 14.9% by April 1982 was rejected by both the district court
and the court of appeals (A. 9). Petitioners’ own April 1982 census showed its
minority membership to be only 10.8 %. Similarly, petitioners’ claim that 45 %
of their apprentice classes are made up of minorities, Pet. Br. at 9, is misleading.
Only since January 1981 have petitioners indentured apprenticeship classes con
sisting of 45% minorities (A. 37).
10 Although Local 28’s total minority journeyman and apprentice membership
was then only 10.8%, more than 18 percentage points below the ultimate goal
petitioners had been ordered to reach by July 1, 1982, the district court did
not base its finding of contempt upon petitioners’ failure to reach the goal (A.
155). Instead the court focused on the union’s failure to make regular and
substantial progress toward integrating minorities into its membership (A.
155-56).
9
of hours and weeks worked per year by Local 28 journeymen
members steadily increased from 1975 to 1981 (A, 16, 151). In
fact, by 1981, employment opportunities so exceeded the available
supply of Local 28 journeymen that Local 28 was compelled to
issue an extraordinary number of work permits to non-member
sheet metal workers, most of whom were white (A. 16). Thus,
the court concluded that during the years after entry of the O&J,
Local 28 deliberately shifted employment opportunities from ap
prentices to predominantly white, incumbent journeymen.11 That
the ratio of journeymen to apprentices rose from 7:1 before the
O&J was entered to 18:1 by 1981, well above the industry stan
dard of 4:1, demonstrated the extent of the shift (A. 16).“
The court based its finding that petitioners issued permits
without the administrator’s approval upon evidence that Local
28 had done so thirteen times between March and June 1981.
Of the thirteen unauthorized permit men, only one was minori
ty. These contemptuous acts were particularly significant given
the district court’s earlier finding, after trial, that Local 28 had
used the permit system to restrict the size of its membership with
the illegal effect of denying minorities access to employment op
portunities in the sheet metal industry (A. 345-46).
Local 28 was also held in contempt for entering into a
Memorandum of Agreement with the Contractors Association
to guarantee older (age 52 or older) sheet metal workers one of
ever\" four jobs during periods of high unemployment (the “older
workers’ provision”). The district court concluded that this pro
vision violated the O&J since it had the foreseeable consequence
of disadvantaging the predominantly young minority members
of the union (A. 155). * 12
u Petitioners erroneously assert, Pet. Br. at 9, that the administrator approved
each apprentice class. What petitioners mistakenly refer to are the reports
ultimately submitted to the administrator informing him of the number of ap
prentices in the JAC program (A. 42 n.3). The administrator neither approved
nor disapproved individual apprentice classes.
12 As the majority opinion of the court of appeals illustrates (A. 22-24), neither
petitioners’ argument nor Judge Winter’s dissent demonstrates that the
underulitization finding was clearly erroneous. Fed. R. Civ. P. 52(a); Pullman-
Standard. v. Swint, 456 U.S. 273 (1982).
10
Finally, petitioners were held in contempt for violating the pro
visions of the O&J and RAAPO requiring them to devise and
implement a written plan for an effective general publicity cam
paign designed to dispel their reputation for discrimination in
minority communities (A. 152-53). The general publicity plan
required by the O&J and RAAPO was never formulated, much
less implemented (A. 152). Finally, the union and JAG were held
in contempt for failing, since 1976, to comply with the impor
tant reporting requirements of the O&J and RAAPO and with
the administrator’s request for information relevant to the im
plementation of RAAPO (A. 154-55).
The district court denied petitioners’ cross-motion to terminate
the O&J and RAAPO, finding that their purposes had not been
achieved and that these orders had not caused the Local unex
pected or undue hardship (A. 157).
B. The Second Contem pt Decision (1983)
On April 11, 1983, the City brought a proceeding against the
Local for additional violations of the O&J and RAAPO. After
a hearing, the administrator found that the Local had again acted
contemptuously by failing to provide data required by the O&J
and RAAPO, failing to send copies of the O&J and RAAPO to
all new contractors in the manner ordered by the administrator,
and failing to provide accurate reports of hours worked by ap
prentices (A. 127, 128-38). The district court adopted the ad
ministrator’s findings and again held the Local in contempt (A.
125).
C. The Fund Order
To remedy petitioners’ past noncompliance, Judge Werker im
posed a fine of $150,000 for the first series of contemptuous acts
and additional fines of $.02 per hour for each journeyman and
apprentice hour worked for the second series of contemptuous
acts (A. 113, 114). These fines are to be placed in an interest-
bearing Local 28 Employment, Training, Education and Recruit
ment Fund (the “Fund”) to be used, among other things, to pro
vide financial assistance to contractors otherwise unable to meet
a 4:1 joumeyman-to-apprentice ratio, to provide incentive or mat
ching funds to attract additional funding from governmental or
private job training programs, to establish a tutorial program for
11
minority first year apprentices, and to create summer or part-
time sheet metal jobs for minority youths who have had voca
tional training (A. 116-18). The Fund is to “remain in existence
until the [new minority membership] goal set forth in the Amend
ed Affirmative Action Program and Order (“AAAPO”) . . . is
achieved and until the Court determines that it is no longer
necessary” (A. 114). The Fund is subject to AAAPO, which pro
vides that Local 28 may provide whites with the benefits afforded
under the program to minorities (A. 76, 118, 253). Upon termina
tion, any sums that remain are to be returned to the union (A.
116).
D. AAAPO
Because the remedial purposes of RAAPO had not been achiev
ed and because of the Local’s contemptuous conduct, the district
court on November 4, 1983, entered a new replacement order,
AAAPO (A. 53, 111). AAAPO modified RAAPO in a number of
respects. It adjusted the minority membership goal from 29 %
to 29.23 % to reflect Local 28’s expanded jurisdiction (due to the
merger of several unions into Local 28) and a population change
in the relevant labor pool (A. 54,122-23). It extended the deadline
for meeting the goal until August 31, 1987 (A. 55). It also re
quired that one minority applicant be indentured into the ap
prenticeship program for each white applicant indentured and
that (unless this provision were waived by plaintiffs) the JACs
assign each Local 28 contractor one apprentice for every four
journeymen (A. 57).
E. The Third A ppeal (1984)
Petitioners appealed to the court of appeals from the contempt
orders, the Fund order and the order adopting AAAPO. They
did not appeal the denial of their cross motion to terminate the
O&J and RAAPO (A. 12), nor did they contend that the 1975
findings of liability were erroneous or that the administrator
should not continue in office.13 By a 2-1 vote, the court of appeals
affirmed all of the district court’s findings of contempt against
13 The Local argued that the administrator’s powers should be curtailed to limit
his authority to adjudication of disputes under AAAPO. See Brief for Appellants
Local 28 and the JAC at 92.
1 2
the Local, except the finding based on the older workers’ provi
sion.14 It also affirmed the contempt remedies, including establish
ment of the Fund. With respect to the first contempt proceeding,
the court of appeals held that the evidence “solidly supports Judge
Werker’s conclusion that defendants underutilized the appren
ticeship program . . . ” (A. 17). The court concluded, “[p]ar-
ticularly in light of the determined resistance by Local 28 to all
efforts to integrate its membership, . . . the combination of viola
tions found by Judge Werker . . . amply demonstrates the union’s
foot-dragging egregious noncompliance . . . and adequately sup
ports his findings of civil contempt against both Local 28 and
the JAC” (A. 24). With respect to the second contempt pro
ceeding, the court held that the district court’s determination
was supported by “clear and convincing evidence which showed
that defendants had not been reasonably diligent in attempting
to comply with the orders of the court and the Administrator”
(A. 22).
The court affirmed AAAPO with two modifications: it set aside
the requirement that one minority apprentice be indentured for
every white, concluding that the ratio was unnecessary in order
to assure progress toward the goal, and it modified AAAPO to
permit the use of validated selection procedures before the 29.23 %
membership goal is reached. In addition, the court concluded
that the Fund was an appropriate coercive and compensatory
contempt remedy. The district court had aimed the relief at the
apprenticeship program, where it would be most effective, and
the Fund would compensate those who had suffered the most
from defendants’ contemptuous conduct. It also noted the Fund’s
coercive aspects and observed that its operation would cease and
any remaining monies would be returned when the Local reached
the 29.23% goal (A. 26).
For the third time, the court reaffirmed the 29.23 % member
ship goal, finding that it met the court of appeals’ two-pronged
14 The court of appeals did not overturn the finding that the provision violated
the O&J, but concluded that “the older workers’ provision was never im
plemented, and therefore did not have any effect—discriminatory or
otherwise—on nonwhites” (A. 17). It remanded this issue for further fact fin
ding and directed that if the provision were found to discriminate, the district
court should “strike it from the collective bargaining agreement . (A. 19).
Since this finding was the sole basis for the orders directed at sheet metal con
tractors, the court of appeals vacated the district court’s orders as to them (A. 37).
13
test for the validity of a temporary, race-conscious affirmative
action remedy (A. 29). First, the remedy was designed to cor
rect a long, continuing and egregious pattern of race discrimina
tion. Second, the remedy “will not unnecessarily trammel the
rights of any readily ascertainable group of non-minority in
dividuals” (A. 32).
Finally, the court rejected the Local’s attempt to curtail the
powers of the administrator (A. 36).
This judgment of the court of appeals affirming the contempt
orders is here on review.
SUMMARY OF ARGUMENT
Ten years ago, after finding a pervasive pattern of racial ex
clusion and noting a record of past noncompliance with court
orders directing the union to end discrimination, the district court
entered a series of comprehensive remedial orders. These orders
were intended to do more than restate the proscriptions of Title
VII against discrimination and compensate individuals specifical
ly harmed by the union’s prior conduct. They were also design
ed to insure, through the imposition of effective remedial
measures, that the union did not return to its discriminatory ways.
Given the union’s failure to “clean house,” the court determined
that the imposition of a remedial racial goal was ’’essential” and
directed that “regular and substantial progress” be made toward
reaching it. The goal was essential because the practices, habits
and customs within the union had, for generations, made racial
exclusion a fixed part of its members’ daily lives and expecta
tions. Because access to admission, membership, training and
employment in the trade ordinarily was obtained through infor
mal contacts among union members, the district judge in this
case knew that he would have no greater success than the judges
who preceded him in altering the indifference within the union
to fair employment laws unless substantial numbers of minority
workers were to become part of the informal mutual support
system that pervades the trade.
1. The district court determined liability and established the
numerical goal and the office of the administrator a decade ago.
The legitimacy of these determinations was upheld by the court
14
of appeals and no further review was sought. Accordingly, res
judicata bars further review of the correctness of these rulings,
which, in any event, were correctly made.
2. The court of appeals correctly concluded that the district
court acted properly in holding petitioners in civil contempt. It
noted 1) that the effect of the combined violations found by the
district court operated to prefer the largely white group of
journeymen over the racially integrated group of apprentices and
2) that the union historically “resisted . . . all efforts to integrate
its membership” (A. 24).
The court of appeals also correctly concluded that the sanc
tions imposed were designed to coerce compliance with the two
remedial orders of the district court. The sanctions imposed were
designed to assure plaintiffs and the intended beneficiaries of the
remedial orders that, unlike prior judicial orders directing the
union to comply with the fair employment laws, the O&J and
RAAPO would be obeyed. The sanctions were also intended to
provide compensatory relief to the class of persons harmed by
petitioners’ persistent discriminatory conduct. The numerical goal
is an integral part of the sanctions imposed: it is a means of veri
fying whether petitioners have discharged their legal obligation
to eradicate the effects of prior discrimination and whether they
have thereby purged themselves of contempt.
3. Section 706(g) of Title VII arms courts with authority to
enter effective remedial orders which will work to achieve the
Act’s purposes. That authority includes the power to order pro
spective race-conscious remedies, such as the relief ordered in this
case, that extend benefits to individuals who are not necessarily
the identified victims of prior unlawful discrimination. The plain
language of Title VII, its legislative history and court decisions
confirm that courts possess authority to enter such orders.
This Court’s decision in Firefighters L oca l Union No. 1784 v.
Stotts, 104 S.Ct. 2576 (1984), is not to the contrary. It concerned
awards of retrospective, make-whole relief which affected the
seniority expectations of white workers while not advancing Ti
tle V II’s primary purpose of achieving equality of opportunity
and barring future racial discrimination. In contrast, the remedies
15
ordered here are prospective remedies which advance the primary
purposes of Title VII, do not implicate the seniority expectations
of other workers, and only minimally affect the interests of white
applicants and members of Local 28.
A rule that bars courts from granting prospective race-conscious
relief to individuals who have not been specifically identified as
the victims of the defendant’s unlawful discrimination disserves
the central purposes of Title VII “to achieve equality of oppor
tunity and to remove barriers that have operated in the past to
favor identifiable groups of white employees over other
employees.” Griggs v. D uke Power Co., 401 U.S. 424, 429-30
(1971). If the statute were interpreted to limit relief in all cases
to identified victims, employers or labor organizations bent on
avoiding the command of Tide VII would be encouraged to “bury
their dead” by discouraging submission of applications by in
dividuals of the unwanted race, sex, religion or national origin;
failing to retain applications submitted by those persistent enough
to complete and submit them; maintaining an informal, word-
of-mouth system of job referrals to which white workers, by vir
tue of familial and friendship ties, have greater access; and adop
ting a range of other schemes which assure perpetuation of ex
clusionary practices while minimizing identification of victims
of the discriminatory system. The facts of this case illustrate why
the application of inflexible; “victim-specific” strictures, which
petitioners and the Solicitor urge the Court to read into section
706(g), will undermine rather than foster the central purposes
of this historic legislation. Congress did not intend this result.
I. PETITIONERS’ CHALLENGES TO RULINGS
MADE A DECADE AGO ARE UNTIMELY
Petitioners challenge, inter alia, the district court’s original fin
dings of race discrimination, its imposition in the O&J and
RAAPO (now AAAPO) of race-conscious remedies, including a
29 % goal, and its establishment of the office of the administrator.
These rulings, made a decade ago, were twice affirmed by the
court of appeals. No review was sought in this Court within the
proper time limits and accordingly, these rulings are res judicata.
They may not be resurrected for review by petitioners’ challenge
1 6
to the court of appeals’ affirmance of the district court’s 1982
contempt finding.15
Petitioners failed to seek review in this Court of these deci
sions and they cannot do so now. Sup. Ct. R. 20 and 28 U.S.C. §
2101 require that certiorari be sought no later than ninety days
after entry of the Judgment to be reviewed. The 1976 and 1977
appeals finally determined all of the issues then in the case, in
cluding the finding of liability and the validity of the goal and
the office of the administrator. As this Court has stated, “the judg
ment. . . was final and appealable. Since [it was not appealed]
we cannot now consider whether the judgment was in error.” Boe
ing Co. v. Van Gem ert, 444 U.S. 472, 480 n.5 (1980); accord
Pasadena Board o f Education v. Spangler, 427 U.S. 424, 432
(1976).16
“ In any event, petitioners did not challenge below the determination of their
liability under H azelw ood School Dist. v. United States, 433 U.S. 299 (1977),
or the continuation of the administrator in office. For this reason alone, the
Court should not consider these issues. See Sol. Loc. 28 Br. at 17, 22, Brandon
v. Holt, 105 S.Ct. 873, 879 n.25 (1985); M onsanto Co. v. Spray-Rite Service
Corp., 465 U.S. 752, 759-61 n.6 (1984); Adickes v. S.H. Kress 6- Co., 398 U.S.
144, 147 n.2 (1970).
Petitioners erroneously contend that respondents “never questioned the ap
pealability” in the court of appeals of the issues of the legality of the goal and
the administrator, Pet. Reply Br. on the Pet. for Cert, at 7. The State argued
in the court of appeals that “the inquiry on appeal should be limited to [peti
tioners’] challenges to the specific remedial provisions ad d ed by the AAAPO.”
Brief for Plaintiff-Appellee State Division of Human Rights, at 33 (emphasis
added). See also Brief for the EEO C at 16. The court of appeals agreed that
its previous decisions in this case were reason enough to dispose of petitioners’
arguments concerning the goal and the administrator (A. 29, 31).
16 The denial of petitioners’ motion to terminate the O&J by the district court,
not appealed to the court of appeals, clearly is not before this Court. Brow der
v. Director, D ep’t o f Corrections, 434 U.S. 257, 264 (1978). In any event, the
motion to terminate did not revive petitioners’ right to challenge the finding
of liability, imposition of the goal or the office of the administrator. Although
res judicata does not apply when a motion to modify is made after a final judg
ment, Arizona v. California, 460 U.S. 605, 619 (1983), the moving party must
demonstrate sufficiently changed conditions of law or fact to warrant relief.
Id . at 624-25. Petitioners could not allege that the applicable statute, Title VII,
had changed since entry of the decree; System F ed ’n No. 91 v. Wright, 364 U.S.
(footnote continued)
17
Because the 1976 and 1977 judgments of the court of appeals
were final and review was not timely sought in this Court, res
judicata bars further litigation of all issues that were or could
have been decided by those judgments.17 As the Court succinctly
stated in Arizona v. California:
[Ljitigation proceeds through preliminary stages, general
ly matures at trial, and produces a judgment, to which, after
appeal, the binding finality of res judicata and collateral
estoppel will attach.
642 (1961), nor did they present any new factual circumstances justifying relief
from the judgment (A. 157). This Court’s decision in Stotts, 467 U.S. 561, does
not justify a modification of the judgment: Stotts did not change the interpreta
tion given Title VII, but merely applied existing law. See Point III, infra.
Moreover, even if Stotts had changed the decisional law interpreting Title VII,
petitioners could not use the decision as a basis for excusing their failure to ap
peal the 1976 and 1977 judgments as they were free, following the judgments,
to seek a ruling from this Court that race-conscious remedies were not permissi
ble. When they chose not to use that opportunity, the judgment became res
judicata.
Moreover, “modification is not a means by which a losing litigant can attack
the court’s decree collaterally.” 11 C. Wright & A. Miller, Federal Practice b
Procedure, § 2962 at 600-01 (1973); accord 7 J. Moore, M oore’s Federal Prac
tice 1 60.27[2] at 274 (2d ed. 1985) (Fed. R. Civ. P. 60(b) (6) “cannot be used
as a substitute for appeal. Absent exceptional and compelling circumstances,
failure to obtain relief through the usual channels of appeal is not another reason
justifying relief.”); M cKnight v. United States Steel Corp., 726 F.2d 333, 338
(7th Cir. 1984); House v. Secretary o f H ealth b Human Services, 688 F.2d 7,
9 (2d Cir. 1982). See System F ed ’n No. 91, 364 U.S. at 647-48; United States
v. Swift b Co., 286 U.S. 106, 119 (1932); Restatem ent (Second) Judgm ents §
73 at 197-98 (1982).
17 Even applying the more flexible law of the case doctrine, see IB M oore’s Federal
Practice f 0.405[2] at 188-90, the Solicitor agrees with the State that many of
the issues raised by petitioners may not be reviewed by this Court. See, e.g.,
Sol. Loc. 28 Br. at 16-17 (the 1975 liability finding) and Sol. Loc. 28 Br. at 21-22
(challenge to the administrator’s appointment and powers). The Solicitor’s logic
applies equally to review of the goal and other race-conscious relief affirmed
in 1976 and 1977. It was certainly forseeable when the race-conscious relief
was imposed in 1975 that failure to make real and substantial progress toward
the goal would be met with stern measures. There was thus no excuse for the
union’s failure to seek review of the race-conscious relief in 1976.
18
460 U.S. 605, 619 (1983).18 See also Federated D epartm ent Stores
v. M oitie, 452 U.S. 394, 398-99 (1981).
Further, “a contempt proceeding does not open to reconsidera
tion the legal or factual basis of the order alleged to have been
disobeyed and thus become a retrial of the original controversy.”
Maggio v. Zeitz, 333 U.S. 56, 69 (1948); accord United States v.
Rylander, 460 U.S. 752, 756-57 (1983). The Third Circuit has ex
plained the reasons for this rule:
If a civil contemnor could raise on appeal any substantive
defense to the underlying order by disobeying it, the time
limits specified in [the Federal rules] would easily be set to
naught [ , ] . . . presenting] the prospect of perpetual relitiga
tion, and thus destroying] the finality of judgments of both
appellate and trial courts.
H alderm an v. Pennhurst State School 6- H ospital, 673 F.2d 628,
637 (3d Cir. 1982) (en banc), cert, denied, 465 US. 1038 (1984).
The rule that a party may not relitigate in a contempt pro
ceeding an issue previously decided is simply an application of
ordinary res judicata principles. United States v. Secor, 476 F.2d
766, 770 (2d Cir. 1973) (“To permit such a collateral attack would
be to make a mockery of the well settled doctrine of res judicata!’).
See also Daly v. United States, 393 F.2d 873, 876 (8th Cir. 1968);
W orld’s Finest C hocolate Inc. v. World Candies, Inc., 409 F.
Supp. 840, 844 (N.D. 111. 1976), a ffd , 559 F.2d 1226 (7th Cir.
1977), and cases cited therein.
Petitioners attempt to avoid the application of res judicata by
citing cases permitting a party to challenge both a civil contempt 18
18 Arizona v. California, cited by the Solicitor in support of his contention that
res judicata is inapplicable here, actually supports the State’s view that the court
of appeals’ 1976 and 1977 judgments bar review of the matters resolved therein.
In Arizona v. California, this Court, in the exercise of its original jurisdic
tion, decided to apply res judicata principles rather than law of the case to
preclude relitigation of factual and legal issues long ago decided, even though
the decree involved was not final. 460 U.S. at 618-19; id. at 644 (Brennan ].,
concurring in part and dissenting in part).
19
finding and an underlying temporary restraining order or
preliminary injunction. Pet. Br. at 36, n.25. These cases are ir
relevant when a party violates an unappealed perm anent
injunction:
[W fhere, instead o f a tem porary injunction, a perm anent
injunction is violated, the interest in enforcem ent consists
not only o f the need to maintain respect fo r court orders
and fo r judicial procedures, but also o f the need to avoid
repetitious litigation. This latter interest, the interest which
the doctrine of res judicata serves in all of its applications,
militates in favor of barring collateral attacks upon perma
nent injunctions in civil contempt proceedings as well as
in criminal ones.
NLRB v. Local 282, International Brotherhood o f Teamsters, 428
F.2d 994, 999 (2d Cir. 1970) (emphasis added).19
The adjustment of the 29 % goal to 29.23 % in AAAPO by the
district court in August 1983 (A. 119), did not remove the issue
of the legality of the imposition of the goal from the reach of
res judicata. As the district court noted, “[t]he new goal of 29.23 %
essentially is the same as the goal set in 1975” (A. 123). Petitioners
may not avoid the effects of res judicata by challenging what
is essentially a reiteration of a prior order. FTC v. Minneapolis-
Honey w ell Regulator Co., 344 U.S. 206, 211-12 (1952); Class v.
Norton, 505 F.2d 123, 125 (2d Cir. 1974); Sidney v. Zah, 718 F.2d
1453, 1457 (9th Cir. 1983).
Nor may petitioners avoid the consequences of res judicata by
citing intervening decisional law, even from this Court:
[T]he res judicata consequences of a final, unappealed judg
ment on the merits [are not] altered by the fact that the
“ The district court’s retention of jurisdiction did not transform the O&J and
RAAPO into a non-final judgment and order, the provisions of which might
still be subject to review. See Special Project, T he R em edial Process in Institu
tional R eform Litigation, 78 Colum. L. Rev. 784, 846 (1978). The retention
of jurisdiction simply permits the district court, without finding subsequent
violations of Title VII, to modify the remedies it ordered “to effectuate the equal
employment opportunities for nonwhites and other appropriate relief’ (A. 316).
See M orrow v. Crisler, 491 F.2d 1053, 1055 (5th Cir.), cert, denied, 419 U.S.
895 (1974).
2 0
judgment may have been wrong or rested on a legal prin
ciple subsequently overruled in another ease.
Federated D epartm ent Stores, Inc., v. M oitie, 452 U,S. at 398.
See also Nevada v. United States, 463 U.S. HO, 130 (1983), (citing
Commissioner v. Sunnen, 333 U.S. 591, 597 (1948) (“The judg
ment puts an end to the cause of action, which cannot again be
brought into litigation between the parties upon any ground
w hatever . . . .”) (emphasis added)). Therefore, even assuming,
arguendo, that petitioners and the Solicitor are correct in their
interpretation of the Court’s decision in Stotts, 467 U.S. 561, but
see p. 48, infra, the imposition of the goal and other race-conscious
relief contained in AAAPO nevertheless must be affirmed.
Accordingly, petitioners are barred from relitigating in this
Court issues decided by the court of appeals in 1976 and 1977.
II. AAAPO AND THE FUND ARE APPROPRIATE
EXERCISES OF CIVIL CONTEMPT POWERS
Petitioners contend that they were held in contempt for failure
to meet the 29 % goal, Pet. Br. at 40, and that their due process
rights were violated because the sanctions imposed under the
Fund order were, in petitioners’ view, criminal contempt sanc
tions. Id. at 39. The Solicitor argues that, while the Local was
properly held in civil contempt and the fines imposed were pro
per overall, the race-conscious aspects of the Fund order are con
trary to the express dictates of §706(g) of Title VII and should
be excised. We address these contentions here.
A. Clear and Convincing Evidence Supports
the Contempt Findings Below
The district court based the contempt findings20 upon various
and repeated clear violations of the O&J and RAAPO which
demonstrate the Local’s unflagging and unabashed commitment
20 The propriety of the findings underlying the second contempt judgment is
not before this Court inasmuch as the petition does not raise it as an issue. See
Sup. Ct. R, 21.1(a); B erkem er v. M cCarty, 104 S.Ct. 3138, 3153 n.38 (1984).
Nonetheless, in that proceeding, the evidence establishing the Local’s non-
compliance was so overwhelming that petitioners offered only token opposi
tion (A. 22).
21
to impede the entry of minorities into Local 28 (A. 125-26, 155).
Those orders were designed to prohibit petitioners from
discriminating further against minorities seeking union member
ship and “to assist in the achievement of the [29 % ] goal” (A. 123).
Contrary to the assertions of the Solicitor and petitioners, Sol.
Loc. 28 Br. at 8, Pet. Br. at 40, neither the district court nor the
court of appeals rested the contempt finding on petitioners’ failure
to meet the 29 percent minority membership goal by the date
prescribed in the RAAPO. Citing no less than seven separate viola
tions, see pp. 8-10 and 12, supra, those courts agreed that “the
collective effect of these violations has been to thwart achieve
ment of the 29 percent goal of non-white membership in Local
28 established by the court in 1975” (A. 155-56).
The findings underlying the first contempt order are supported
by “clear and convincing evidence.” Powell v. Ward, 643 F,2d 924,
931 (2d Cir.), cert, denied, 454 U.S. 832 (1981). Except for the
charge that petitioners underutilized the apprenticeship program,
petitioners virtually conceded below and concede here the other
violations cited — issuance of unauthorized work permits, failure
to propose and conduct a general publicity campaign and failure
to maintain and submit vital records (A. 13,23).
Petitioners’ contention that the record does not support a fin
ding that they underutilized the apprenticeship program was ex
haustively examined and rejected by the court of appeals (A.
15-16). Additionally, as we have already shown, the record sup
ports the finding that the Local had underutilized the appren
ticeship program to the detriment of minorities. See pp. 8-9,
supra. At this stage of the litigation, review by this Court of the
sufficiency of the evidence is neither warranted nor appropriate.
See National Collegiate Athletic Association v. Board o f Regents,
104 S. Ct. 2948, 2959 n.15 (1984); Rogers v. Lodge, 458 U.S. 613,
623 (1982).
The underutilization of the apprenticeship program coupled
with the three other violations cited by the court of appeals in
support of the first contempt order unequivocally established that
petitioners attempted to defeat two of the central provisions of
the RAAPO: “to assure that substantial and regular progress is
made toward this goal. . .” and “to assure apprentices of Local
22
28 share equitably in all available employment opportunities’'
(A. 183-84).21
B The Fund and AAAPO Constitute a Precisely Crafted
Civil Contempt Sanction Rather Than a Criminal
Penalty
The gravamen of civil contempt is its remedial purpose. See
Pen fie ld Co, v. SEC, 330 U.S. 585 (1947); Gompers v. Bucks Stove
& Range Co., 221 U.S. 418 (1911). Civil contempt sanctions may
be imposed “for either or both of two purposes: to coerce the
defendant into compliance with the court’s order, and to com
pensate the complainant for losses sustained.” United States v.
United Mine Workers, 330 U.S. 258, 303-04 (1947). The provi
sions of the Fund and AAAPO reflect the district court’s exercise
of its power “to grant the relief that is necessary to effect com
pliance with its decree[s].” M cCom b v. Jacksonville Paper Co.,
336 U.S. 187, 193 (1949); see Milliken v. Bradley, 433 U.S. 267
(1977). Here, after petitioners violated not only numerous specific
provisions of the O&J and RAAPO, but just as importantly their
unambiguous objective, full remedial relief was necessary to secure
compliance with the underlying decrees. M cCom b, 336 U.S. at
193. That this was the court’s purpose may be seen from the fact
that the Fund order and AAAPO permit petitioners to purge
themselves of contempt. Shillitani v. United States, 384 U.S. 364
(1966). The Fund order expressly terminates and money remaining
in the Fund is to be returned to petitioners once they attain the
goal and thereby demonstrate the eradication of prior discrimina
tion and its effects (A. 114).22 AAAPO contains a similar provi
sion (A. 55).23
21 Even if this Court were to disagree with the lower courts’ underutilization
finding, the first contempt judgment should be upheld because it is supported
by at least three other violations and the district court did not place primary
emphasis on the underutilization finding (A. 155).
22 The goal is thus an integral part of the Fund because it operates as a signal
of when petitioners have purged themselves of contempt.
23 Petitioners incorrectly contend that the Fund is not a coercive sanction because
its termination is also contingent upon the court’s determination that the Fund
is no longer necessary. This case is indistinguishable from Shillitani where the
petitioner was sentenced to prison for two years or until the further order of
(footnote continued)
23
The terms of the Fund and AAAPO are based on experience
and are reasonably crafted to coerce petitioners to admit minority
members and, in so doing, to remedy the consequences of peti
tioners’ contemptuous acts. The Fund is aimed at increasing
minority membership in Local 28 by augmenting the pool of
qualified minority applicants for the apprenticeship program (A.
116) , f 1f6b,c,i,j. To this end, some provisions require the creation
of support services for minority apprentices, including tutorial
and counseling services (A. 116), f f 6a,d; educational stipends (A.
117) , f6e; and low-interest loans for apprentices who demonstrate
financial need.24 Id ., 16f. Other provisions are designed to
stimulate an overall increase in employment opportunities so that
more minority apprentices may be hired. Thus, paragraph 6(h)
provides financial reimbursements to any employer who
demonstrates it cannot afford to hire additional apprentice to
meet the 1:4 apprentice-to-journeyman requirement of AAAPO,
and paragraphs 6(i) and 6(j) are directed at generating more train
ing and employment opportunities, which will increase minori
ty employment and membership in Local 28 (A. 116-18).
Furthermore, paragraph 6(b) of the Fund, which requires crea
tion of part-time and summer sheet metal jobs for qualified
minority vocational students, when coupled with the general
publicity requirement of AAAPO, is intended to operate to
develop the interest and awareness of minority youth in sheet
the court. 384 U.S. at 360. Rejecting the petitioner’s characterization of that
contempt sanction as a criminal penalty, this Court held that the clear intent
of the sentence was to obtain answers to the questions for the grand jury—“to
coerce, rather than punish.” Id . at 370, Likewise, no doubt exists that if peti
tioners comply with the 29.23% minority membership goal, the court will ter
minate the Fund and petitioners will be permitted to recover any monies re
maining (A. 114, 116). Here too, the purpose is to coerce, rather than punish.
See D oyle v. London Guar, ir A ccident Co., 204 U.S. 599, 603 (1906).
24 These services also counter-balance partially the deeply entrenched system
of mutual self-help among the white members that has long been a characteristic
of this union, see p. 51 n.55, infra, JA 402-03 and A.140, which has operated
to disadvantage minorities seeking admission and employment. Until minorities
are fully integrated into the union in substantial numbers, the tradition within
the union to “take care of its own” will, as this Court has recognized in the
school desegregation cases, continue to perpetuate the effects of the union’s racial
ly segregated past. See, e.g., United States v. M ontgomery Board o f Education,
395 U.S. 225, 227 (1969).
24
metal jobs. These programs aim to counteract Local 28’s self-
imposed isolation from minority communities. Paragraphs 6(g)
and 6(e) seek to maintain minority membership by encouraging
development of advanced skills by minority apprentices and
journeymen who are unemployed (A. 117). Similarly, the 1:4
apprentice-to-journeyman requirement contained in AAAPO will
ensure that the Local will not again circumvent the requirement
that apprentices share equitably in all job opportunities (A. 34).
Operating together, the provisions of the Fund represent a well-
designed plan to reverse Local 28’s racially discriminatory ad
mission practices by increasing minority participation in the
Local’s activities.
Likewise, the 29.23% minority membership goal coerces peti
tioners to comply with the G&J and AAAPO and serves as the
only objective measure of petitioners’ progress toward integra
tion. The goal is necessary, “particularly in light of the deter
mined resistance by Local 28 to all efforts to integrate its member
ship. . and its “foot-dragging egregious noncompliance with
the O&J and RAAPO” (A. 24) See pp. 49-52, infra.25
The compensatory character of the Fund is also apparent. That
some compensation is appropriate was evident from the nature
of the violations. Underutilization of the apprenticeship program
has resulted in the unwarranted rejection of minority applicants.
The Local’s failure to conduct a general publicity campaign
perpetuated the Local’s discriminatory reputation among
minorities who might otherwise have been attracted to the sheet
metal trade. Its failure to submit timely and accurate reports
deprived the court of the ability to monitor the Local’s compliance
and as a result weakened the entire remedial scheme. Its
unauthorized issuance of work permits as well as the issuance
25 The other contempt sanctions sustained by the court of appeals, the require
ment that petitioners pay for computerized record-keeping and the assessment
of attorney fees and expenses, are readily identifiable as civil contempt sanc
tions. Sol. Loc. 28 Br. at 14-15. Petitioners do not dispute this point. The com
puterized record-keeping provision clearly coerces compliance with the record
keeping requirement of the court’s orders, while the award of fees and expenses
compensates plaintiffs for the costs of litigating the contempt proceedings.
G ompers, 221 U.S. at 445.
25
of over 200 permits harmed minority journeymen who are not
affiliated with favored sister locals and is symptomatic of con
tinued discriminatory practices. The overall effect of these con
tumacious acts has been to undermine the remedial plan outlin
ed in the O&J and RAAPO. As a direct consequence, the Local
has injured the class of minorities interasted in becoming sheet
metal workers, the intended beneficiaries of the O&J and
RAAPO.
The Fund is designed to compensate these injured persons by
attracting qualified minorities to the apprenticeship program,
fostering an improved working environment for new and existing
minority apprentices and journeymen, and providing strong sup
port services to assist the progress of each of these groups. The
Fund thereby works “to compensate those who had suffered most
from defendants’ contemptuous underutilization of the appren
ticeship program” (A. 26). It does so “not with a money award,
but by improving the route they most frequently travel in seek
ing union membership.” Id. The compensatory feature of the
Fund is justified because petitioners’ dogged failure to comply
with the O&J and RAAPO has frustrated the relief awarded to
plaintiffs, economically injured the intended beneficiaries of those
orders, and caused monetary damages to be unquantifiable (A.
154, 128, 23).
Petitioners also contend that the sanctions imposed exceed the
standards for permissible contempt sanctions “because nothing
is payable to any complainant or related to any actual loss.” Pet.
Br. at 39. Petitioners view the civil contempt power too narrow
ly. By necessity, the district court exercised civil contempt power
commensurate in scope, force and ingenuity with the “determined
resistance” and “foot-dragging egregious noncompliance” (A. 24)
it sought to remedy. Hutto v. Finney, 437 U.S. 678 (1978); United
States v. United Mine Workers, 330 U.S. at 303. A compensatory
contempt sanction need not compensate a party for the precise
amount of his loss. For example, in M cComb, 336 U.S. at 193-95,
unpaid wages were awarded to nonparty employees and in Lem an
v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 455 (1931), the
compensatory relief awarded exceeded the injured parties’ losses.2® 26
26 Other characteristics of the contempt proceeding establish that it was civil
in nature. In this regard, the contempt action was between the original parties,
(foo tn ote continued)
26
See also Hutto v. Finney, 437 U.S. at 691 (a civil contempt fine
may combine compensatory and coercive characteristics).
A perfect match between the contempt sanction and the in
jury inflicted is not required as long as the sanction is reasonably
directed at securing compliance with the court’s orders, id., or
compensating the class of persons injured by the defendants’ con
tempt. In this case, the remedy imposed did both. Accordingly,
AAAPO and the Fund are appropriate civil contempt sanctions.
C. The Civil Contempt Sanctions Imposed
Are Not Limited by Title VII
A federal court has “inherent power” to prevent obstruction
of its authority by acts of “force, guile or otherwise” United States
v. Armour 6- Co., 398 U.S. 268, 274 (1970) (Douglas J., dissen
ting). These powers are rooted in common law, Beale, Contempt
o f Court, Criminal and Civil, 21 Harv. L. Rev. 161 (1908), and
are essential to the operation of the judiciary:
The inherent powers of federal courts are those which “are
necessary to the exercise of all others.” United States v. Hud
son, 7 Cranch 32, 34 (1812). The most prominent of these
is the contempt sanction, “which a judge must have and
exercise in protecting the due and orderly administration
of justice and in maintaining the authority and dignity of
the court. . . .” C ooke v. United States, 267 U.S. 517, 539
(1925); see 4 W. Blackstone, Commentaries 282-285. Because
inherent powers are shielded from direct democratic con
trols, they must be exercised with restraint and discretion.
and was instituted and tried as part of the main civil proceeding. Gompers,
221 U.S. at 445. In addition, the district court awarded costs to plaintiffs as
compensation for their successful prosecution of the contempt proceedings. Id.
at 447. Furthermore, the first order of the district court imposing contempt
fines expressly relied upon civil contempt guidelines articulated by this Court
in United M ine Workers, 330 U.S. at 304: the character and magnitude of the
harm threatened by continued contumacy, the probable effectiveness of any
suggested sanction in bringing about the desired result, and the consequent
seriousness of the burden to defendants (A. 156).
27
Roadway Express, Inc. v. Piper , 447 U.S. 752, 764 (1980); see
also Ex Parte Robinson, 86 U.S. 505 (1873).27
Inherent judicial powers are independent of statutory causes
of action and, unless specifically limited by statute,28 are fully
available to render complete justice. M cComb, 336 U.S. at 193;
Porter v. Warner Holding Co., 328 U.S. 398 (1946). Otherwise,
the scope of inherent powers is broad, flexible, and limited only
by the traditional usage of the particular power29 and the Con
stitution. Milliken v. Bradley, 418 U.S. 717; Swann v. Charlotte-
M ecklenburg Board o f Education, 402 U.S. 1 (1971); see Bivens
v. Six Unknown N am ed Agents o f Federal Bureau o f Narcotics,
403 U.S. 388, 406 (1971) (Harlan, J., concurring). It follows that
inherent powers are not to be laid aside by questionable inferences
from or doubtful constructions of statutory provisions. See
W einberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982); Brown
v. Swann, 35 U.S. (10 Pet.) 497, 503 (1836).
Anyone who is covered by the terms of an injunction is sub
ject to sanctions for violations of its provisions unless the injunc
tion was “transparently invalid or had only a frivolous pretense
to validity.” Walker v. City o f Birmingham, 388 U.S. 307, 315
(1967). It can hardly be said that the race-conscious provisions
imposed in the O&J and RAAPO were “transparently invalid”
"Decisions discussing the judiciary’s parallel inherent authority to award
equitable relief shed additional light on the scope of the civil contempt power.
See R oadw ay Express, Inc. v. Piper; com pare H echt Co. v. Bowles, 321 U.S.
321 (1944), w ith Swann v. Charlotte-M ecklenburg Board o f Education, 402
U.S. 1 (1971).
28 Although several statutory provisions including 42 U.S.C. § 2000h and of the
Fed. R. Grim. P. 42 limit the exercise of criminal contempt power, there is no
similar restraint on the exercise of civil contempt power.
29 As demonstrated above, the sanctions fashioned are consistent with the tradi
tional usages of civil contempt to coerce compliance and compensate losses.
Apparently, the Solicitor misunderstands the purpose of civil contempt power:
he suggests that the district court should have designed sanctions to penalize
the “union’s leaders,” rather than innocent whites. Sol. Loc. 28 Br. at 31. As
we discussed earlier, punishment is not the purpose of civil contempt. Here,
the court properly fashioned a remedy to secure compliance with the O&J and
RAAPO and AAAPO. Although as the Solicitor argues, imprisonment may have
been a permissible coercive sanction, the district court had discretion to fashion
sanctions other than imprisonment. See Hutto v. Finney, 437 U.S. at 691.
28
or that they had “only a frivolous pretense to validity,” id., for
prior to the district court’s imposition of contempt sanctions (as
well as subsequently) every court of appeals had held that such
remedies are authorized by Title VII. See n. 49, infra at 44. In
fact, as shown below, a court has broad powers under Title VII
to grant complete relief for identified discrimination and it may
order relief that extends to individuals who are not the proven
victims of discrimination.
Petitioners argue that 42 U.S.C. § 200Qh precludes courts from
awarding compensatory relief as a civil contempt sanction in con
tempt proceedings arising out of a Title VII action. Pet. Br. at
38. They press this contention despite their express recognition
that section 2000h only governs ’criminal contempt proceedings
under the Act.” Pet. Br. at 37. Moreover, section 2000h expressly
provides that the section does not affect a court’s power to im
pose civil contempt sanctions “to secure compliance with or pre
vent obstruction of. . . any lawful writ, process, order, rule, decree
or command of the court. . . .” Civil contempt sanctions, whether
coercive or compensatory, are designed “to secure compliance
with or prevent obstruction oP’ court orders. See M cCom b, 336
U.S. at 193-95; Lem an 284 U.S, at 455. The district court thus
properly awarded compensatory as well as coercive relief as sanc
tions for petitioners’ contemptuous conduct.
III. THE RACE-CONSCIOUS REMEDIES IMPOSED
BY THE COURT BELOW COMPORT WITH
TITLE VII AND THE FIFTH AMENDMENT
We have already shown that any effort to revisit the district
court’s decision fixing the goal is barred by the strong policy favor
ing repose in litigation. See Point I, supra. We have also shown
that the goal is an integral part of the Fund order and that the
Court’s establishment of the goal, as well as the other race
conscious aspects of the Fund order, constitute an appropriate
exercise of the district court’s contempt power. See Point II, supra.
The district court’s legal predicate for imposition of the goal set
forth in AAAPO and the race-conscious aspects of the Fund order
should not be reconsidered absent a clear showing that such
29
remedies when imposed as contempt sanctions are barred by Title
VII or the fifth amendment of the Constitution.30 See p. 27-28,
supra. As shown below, far from barring such remedies, both Title
VII and the Constitution authorize the use of race-conscious
remedies in appropriate cases and the beneficiaries of such
remedies may include other persons besides the identifiable vic
tims of illegal discrimination.
A. The Race-conscious Remedies Ordered By The District
Court Are Authorized Under Title V II
1. A rem edy furthering the primary objective o f Title
VII o f eradicating discrimination and its continu
ing effects is within the scope o f section 706(g) o f
the Act
“[T]he scope of a district court’s remedial powers under Title
VII is determined by the purposes of the Act.” International
Brotherhood o f Teamsters v. United States, 431 U.S. 324, 365
(1977). Because race-conscious remedies such as those imposed
below are necessary to achieve Title V II’s primary purpose of
eradicating discrimination and its effects, they are well within
the scope of remedies authorized by Title VII.
The primary purpose of Congress in enacting Title VII in 1964
was prospectively to remedy the economic disadvantages resulting
from race discrimination that blacks have suffered in our
economy. United Steelworkers v. Weber, 443 U.S. 193, 202 (1979)
(citing 110 Cong. Ree. 6548 (1964) (remarks of Senator Hum
phrey)). Accord 29 C.F.R. § 1608.1b (1985). Congress was not,
as petitioners and the Solicitor suggest, Pet. Br. at 17-18; Sol. Loc
93 Br. at 7-9, solely, or even primarily, concerned with the
retrospective matter of remedying the injuries suffered by pro
ven victims of discrimination. Thus, much of the congressional
debate emphasized the high rate of unemployment among blacks,
30 Moreover, the relief imposed by the district court was designed to remedy
not only violations of Title V II but also violations of the NYC Code § Bl-7.0
(A. 321, 350-51). Petitioners have not challenged the permissibility of the goal
and the Fund order under the New York City ordinance, and, indeed, there
is no section in the ordinance that even arguably suggests that its broad remedial
provisions are limited by a victim-specific principle See appendix to this brief.
The existence of an independent state ground for the remedies is an additional
reason for affirming the judgment. See M ichigan v. Long, 463 U.S. 1032, 1038
(1983).
30
110 Cong. Rec. 6547, 7204 (1964) (remarks of Senator Clark),
particularly in comparison with white unemployment rates. Id.
at 6547 (remarks of Senator Humphrey).31 “Congress feared that
the goals of the Civil Rights Act [of 1964] — the integration of
blacks into the mainstream of American society — could not be
achieved” unless the increasing rate of black unemployment was
reversed. Weber, 443 U.S. at 202. Congress therefore passed Ti
tle VII “to open up employment: opportunities for Negroes in oc
cupations which have been traditionally closed to them.” 110
Cong. Rec. 6548 (remarks of Senator Humphrey), cited in Weber,
443 U.S. at 203.
This Court has repeatedly recognized that Congress’ primary
purpose in passing Title VII was “to achieve equality of employ
ment opportunities and to remove barriers that have operated
in the past to favor an identifiable group of white employees over
other employees.” Griggs, 401 U.S. at 429-30; accord Ford Motor
Co. v. EEO C, 458 U.S. 219, 228 (1982); A lbem arle Paper Co.
v. M oody, 422 U.S. 405, 421 (1975); Fullilove v. Klutznick, 448
U.S. 448, 499 (1980) (Powell, J., concurring). Put differently, Con
gress’ main purpose was to eradicate discrimination and “the last
vestiges of an unfortunate and ignominious page in this coun
try’s history.” Albem arle, 422 at 417-418, 421 (citing United States
v. N.L. Industries, Inc., 479 F.2d 354, 379 (8th Cir. 1973)); ac
cord D othard v. Rawlinson, 433 U.S. 321, 328 (1977). This goal
was “of the highest priority.” Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974).
When Congress amended Title VII in 1972, it again sought
to eliminate the economic disparity between whites and
minorities, a disparity dramatized by statistics showing that far
more blacks than whites were unemployed, that blacks who were
employed were far more likely to have low-paying jobs, and that
the median income of white families was about 75 % higher than
that of minority families. S. Rep. No. 415, 92d Cong., 1st Sess.
31 Congress hoped that the passage of the Act would eliminate a “severe ine
quality in employment [that] is felt both on a personal and on the national
level.” See H. Rep. No. 914, Part 2, 88th Cong., 2d Sess. (additional views of
McCulloch, et al.) reprinted in 1964 U.S. Code Cong. & Ad. News 2487, 2514.
The national costs of this inequality were perceived as including additional ex
penses for “unemployment compensation, relief, disease and crime.” Id. at 2515.
31
6 (1971), reprinted in Subcomm. on Labor of the Comm, on
Labor & Pub. Welfare, 92d Cong. 2d Sess.: Legislative History
of the Equal Employment Opportunity Act of 1972 Comm. Print
(1972) at 410, 415, 417 (“1972 Leg. H ist”). Congress strengthen
ed Title VII to eliminate that disparity. Id. at 417. See also H.
Rep. No. 238, 92 Cong., 1st Sess. 3 (1971), 1972 Leg. Hist, at 64
(“minority groups are not obtaining their rightful place in our
society”). Title VII was also enacted to make whole proven vic
tims of discrimination for economic injuries they suffered as a
result of discriminatory conduct. Franks, 424 U.S. at 763, 767
and n.27; Albem arle, 422 U.S. at 418-419; Teamsters, 431 U.S.
at 364. This, however, was only “a secondary, fallback purpose.”
Ford M otor Co. v. EEOC, 458 U.S. at 230. Obviously, case-by
case adjudications aimed solely at compensating identified vic
tims of discrimination will not result in the prompt removal of
racial barriers or prevent future discrimination.
This Court has firmly held that a district court’s remedial
powers under the Act must be determined not just by its make
whole purposes but by the primary purpose of “achiev[ing] equal
employment opportunity and ... removing] the barriers that have
operated to favor white male employees over other employees.
Teamsters, 431 U.S. at 364-65; Franks, 424 U.S. at 768 n.28, 770,
771; Albem arle, 422 U.S. at 417-21. A district court should
therefore exercise its discretion under section 706(g) “to allow the
most complete achievement of the objectives of Title VII that
is attainable under the facts and circumstances of the specific
case.” Franks, 424 U.S. at 770-71 (citing Albem arle, 422 U.S. at
421). Relief is to be denied “only for reasons which, if applied
generally, would not frustrate the central statutory purposes of
eradicating discrimination throughout the economy and mak
ing persons whole for injuries suffered through past discrimina
tion.” Id. (emphasis added).
As demonstrated below, a holding that section 706(g), under
the circumstances presented here, bars prospective, race-conscious
remedial relief carefully designed to remedy the effects of decades
of unrelenting discrimination would frustrate Title VII’s primary
purpose of bringing about equality of opportunity.
32
2. Section 706(g) grants district courts broad equitable
authority to im pose goals and other race-conscious
relief necessary to rem edy proven discrimination
The first part of section 706(g) of Title VII, 42 U.S.C. §
2000e-5(g), provides that:
If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful
employment practice charged in the complaint, the court
may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirm ative action as
may be appropriate, w hich m ay include, but is not lim ited
to, reinstatement or hiring of employees, with or without
back pay ... or any other equitable relief as the court deem s
appropriate, (emphasis added).
As reflected by its broad language, section 706(g) was intended
to confer extremely broad equitable powers upon district courts
to enable them to remedy unlawful discriminatory conduct and
its effects.32 Teamsters, 431 U.S. at 364; Franks, 424 U.S. at 771;
A lbem arle, 422 U.S. at 421. The federal courts have freely exer
cised the discretion conferred by section 706(g) to assure that
employers found to be in violation of the Act eliminate their
discriminatory practices and the effects of those practices.
Teamsters, 431 U.S. at 361 n.47; see Fullilove, 448 U.S.at 510-13
(Powell, J., concurring).33
32 Section 706(g), as amended in 1972, is fully applicable to this action. See
Bradley v. School Bd., 416 U.S. 696 (1974). The amendments to section 706
were inapplicable only to proceedings filed with, the EEO C prior to the effec
tive date of the amendment, not to suits such as this one filed by the Justice
Department pursuant to section 707 of the 1964 Act, 42 U.S.C. § 2000e-6, Equal
Employment Opportunity Act of 1972, Public Law No. 88-352 § 14; 1972 U.S.
Code Cong. & Ad. News 2166 (section-by-section analysis § 10). See Franks,
424 U.S. at 764 n.21 (relying upon 1972 amendments and legislative history
in determining appropriate remedy under section 706(g) for pre-1972
discrimination).
33 Contrary to the Solicitor’s contention, Sol. Loc. 93 Br. at 8 n,5, the principles
developed under section 10(c) of the NLRA, 29 U.S.C. § 160(c), “guide, but do
not bind, courts tailoring remedies under Title VII.” Ford M otor Co. v. EEOC,
458 U.S. at 226-28. See Franks, 424 U.S. at 769 n.29. But even under section
10(c), while punitive sanctions are barred, the Board may “removej] or avoid[]
(foo tn ote continued)
33
Petitioners and the Solicitor argue, however, that the last
sentence of section 706(g) limits a district court’s equitable powers
under Title VII by depriving it of the authority to terminate the
effects of discrimination unless the relief benefits only proven vic
tims of discrimination. The contention does not withstand scrutiny.
a. The plain language o f section 706(g) demonstrates
that race-conscious relief may benefit persons w ho
are not proven victims o f discrimination
The last sentence of section 706(g) bars a court from ordering
“admission . . . o i an individual as a member of a union . . .
if such individual was refused admission . . . for any reason other
than discrimination on account of race . . . .” 42 U.S.C. 2000e-5(g)
(emphasis added). The plain language of the sentence
demonstrates that it is not a bar to race-conscious relief design
ed to remedy proven discrimination. First, a goal does not order
the admission of “an individual,” but instead directs that the union
take steps to increase its overall minority membership. If Con
gress had intended to bar judicial relief benefitting unspecified
members of a group, as opposed to relief running to specific in
dividuals, it could plainly have done so. That is precisely the
language Congress used in section 703(j) (“group or individual”).
See n. 35 infra at 35. Second, the sentence only bars orders that
grant relief to individuals who were ’’refused admission” to a
union; under the orders in this case, eligibility for union member
ship under the prescribed goal is not dependent upon prior re
jection by the union. Third, the sentence obviously addresses only
the situation in which an individual was denied membership for
a reason other than discrimination. “[T]he section merely prevents
a court from ordering [a union to admit someone unqualified
the consequences of violations where those consequences are of a kind to thwart
the purpose of the Act”. L oca l 60, United Bhd. o f Carpenters v. NLRB, 365
U.S. 651, 655 (1961), (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 236
(1938)). “The task of the NLRB in applying § 10(c) is ‘to take measures design
ed to recreate the conditions and relationships that would have been had there
been no unfair labor practice’.” Franks, 424 U.S. at 769 citing L oca l 60, United
Bhd. o f Carpenters, 365 U.S. at 657 (Harlan, J., concurring)). The remedial
relief imposed below will further the primary purpose of Title VII and is “design
ed to recreate the conditions” that would have existed absent discrimination
against minorities.
34
for membership] and has nothing to do with prospective class
wide relief.” Stotts, 104 S. Ct. at 2609 (Blackmun, J., dissenting).34
b. The legislative history o f Title VII supports the plain
meaning construction o f 706(g)
The 1964 legislative history supports the “plain meaning” in
terpretation of the last sentence of § 706(g). It demonstrates that
the sentence was added to ensure that the Act would not impair
an employer’s right to make personnel decisions on non-
discriminatory grounds. See Stotts, 104 S. Ct. at 2608-09
(Blackmun, J., dissenting); EEO C v. Am erican Telephone ir
Telegraph, 556 F.2d 167, 177-78 (3d Cir. 1977), cert, denied, 438
U.S. 915 (1978). Section 707(e) of H.R, 7152, 88th Cong., 1st Sess.
(1963), the predecessor to section 706(g), barred judicial relief
to an individual “if such individual was ... refused employment
or advancement or was suspended or discharged for cause.” H.R.
Rep. No. 914, 88th Cong., 1st Sess. (“H.R. Rep, No, 914”) reprinted
in EEOC, Legislative History o f Titles VII and XI o f Civil Rights
Act o f 1964, at 2012 (“1964 Leg. Hist.”). After it was amended
to its current version, the sponsor, Representative Celler, stated
that the purpose of both the original and amended versions was
to clarify that an employer would not violate the statute by de
nying employment on grounds other than unlawful discrimina
tion. 110 Cong. Rec. 2567 (1964) see H.R. Rep. No. 914,1964 Leg.
Hist, at 2029; see also 110 Cong. Rec. 6549 (1964) (remarks of
Sen. Humphrey); id. at 2568, 2570 (1964) (remarks of Rep. Gill).
When Congress amended Title VII in 1972, it was still of the
view that the last sentence of section 706(g) barred only relief
aimed at non-discriminatory employment decisions and not race
conscious relief to remedy systemic discrimination. Thus, the Con
ference committee report stated that “the provisions of existing
34 The Solicitor professes that the sentence bars preferences to persons “not ‘refus
ed employment or . . . suspended or discharged’ as a result of discrimination.”
Sol. Loc. 93 Br. at 8-9, (quoting section 706(g)). The Solicitor General distorts
the sentence Its bar to preference is limited to persons who were “refused
employment [or membership]” for a reason other than discrimination, and does
not prevent relief benefitting persons who were not refused employment at all.
35
law prohibiting court ordered remedies based on any adverse ac
tion except unlawful employment practices under Title VII are
retained.” Conf. Rep. No. 899, 92d Cong., 2d Sess. 19 (1972), 1972
Leg. Hist, at 1839.35
Virtually none of the legislative statements quoted by peti
tioners or by the Solicitor General lend any support to their claim
that Congress intended in 1964 to prohibit temporary race
conscious relief designed to redress proven discrimination. Rather,
consistent with the language and principles of sections 703(j) and
706(g), the statements quoted reflected Congress’ intent that the
Act not be interpreted to impose liability for a failure to adopt
a quota or for racial imbalance without more,36 to require
employers to hire particular individuals who had not been sub
ject to discrimination,37 to authorize the EEOC or the courts to
require employers to attain racial balance irrespective of past
discrimination,38 or to impose perm anent quotas to remedy pro
ven discrimination.39 None of those situations is presented here,
38 Section 703(j) does not bar a court from imposing race-conscious relief. That
section provides that the Act shall not be interpreted to require an employer
“to grant preferential treatment to any individual or to any group because of
the race;, color, religion, sex, or national origin of such individual or group on
account of [a racial] imbalance [in the work force]”. 42 U.S.C. 20Q0e-2(j). Under
the section, employers cannot be required to institute a preferential system in
order to avoid Title V II liability. Weber, 443 U.S. at 207 n.7. By its terms, the
section bars only preferential treatment designed to remedy an imbalance, 110
Cong. Rec. 8921 (1964), 1964 Leg. Hist, at 3189-90 (remarks of Sen. Williams),
not judicial relief premised upon a finding that the racial imbalance is at
tributable to past discrimination. If Congress had intended to bar race-conscious
measures designed to remedy past systemic discrimination rather than to redress
a racial imbalance, it would have said so. See Weber, 443 U.S. at 206.
36110 Gong. Rec. 7207 (1964) (Mem. of Justice Dep’t); id. at 1540, 15,876 (Rep.
Lindsay); id. at 8921 (Sen. Williams); id. at 2558 (Rep. Goodell); id. at 5092,
11,848 (Sen. Humphrey); id. at 7213 (Clark—Case Interpretive Memorandum).
37110 Cong. Rec. 6549 (1964) (remarks of Sen. Humphrey); id. at 14,465 (Bipar
tisan Civ. Rights Newsletter); id. at 7214 (Clark—Case Interpretive
Memorandum).
38110 Cong. Rec. 14,465 (1964) (Bipartisan Civ. Rights Newsletter); id. at 1600
(Rep. Minish); id. at 1518 (remarks of Rep. Celler).
39110 Cong. Rec. 6549 (1964) (remarks of Sen. Humphrey); id. at 6566 (Mem.
by Repub. members of H. Jud. Comm.); id. at 14,465 (Bipartisan Civ. Rights
Newsletter).
36
where the courts have, in a proven instance of persistent
discrimination, ordered prospective, temporary race-based
remedies designed to correct past discrimination.40
When Congress amended Title VII in 1972, it reaffirmed that
race-conscious relief is within the arsenal of remedies authoriz
ed by section 706(g). In the course of strengthening the statute,
Congress took several steps that touched directly upon section
706(g). The full significance of those steps, however, cannot be
appreciated without an understanding of the backdrop to the
amendments.
In 1965, President Johnson had issued Executive Order No.
11246, 30 Fed. Reg. 12,319 (1965), 42 U.S.C. § 2000e note. The
Executive Order created the Office of Federal Contract Com
pliance and required federal contractors to engage in affirmative
action to ensure equal opportunity. Id. Pursuant to the Executive
Order, the Department of Labor in 1967 established the
Philadelphia Plan. Contractors Association v. Secretary o f Labor,
442 F.2d 159, 163 n.7 (3d Cir.), cert, denied , 404 U.S. 854 (1971).
That Plan, as revised in 1969, required federal construction con
tractors subject to the Executive Order to make good faith ef
forts to attain numerical goals for the employment of minorities.
Id at 162-63. The requirement was extended to non-construction
contractors in 1970. Id. The Plan was found consistent with Ti
tle VII by both the Attorney General, 42 Op. Atty. Gen. 405,
411 (1969), and the federal courts. Southern Illinois Builders
Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Contractors
40 Indeed, in 1972, Senators Allott, Humphrey, Mansfield, Williams, Clark and
Case all voted against proposed amendments to Title V II that would have bar
red the imposition of goals. 118 Cong. Rec. 1676, 4918 (1972), 1972 Leg. Hist.
at 1074, 1716-17; see infra at 39 to 40. This is strong evidence that in 1964 these
Senators did not believe that Title V II barred the use of temporary remedial
goals.
Similarly, many of the members of the 1964 Congress who voted in favor
of Title V II later opposed a rider that would have barred the use of goals under
the Philadelphia Plan, see p. 37 n.41, infra, and emphasized that the use of
programs such as the Philadelphia Plan was necessary if equal employment op
portunity was to become a reality in the United States. See 115 Cong. Rec.
40,740-746 (1969) (remarks of Sens. Bayh, Javits, Griffin, and Scott); 115 Cong.
Rec. 40,905, 40,908-909, 40,915, 40,917-919, 40,921 (1969) (remarks of Reps.
Anderson, Bow, Ford, Fraser, Hawkins, McGregor, Reid and Ryan).
37
Association, 442 F.2d at 159. See generally Regents o f the Univer
sity o f California v. Bakke, 438 U.S. 265, 354 n.28 (1978) (Brennan,
Marshall, White and Blackmun, JJ.); Comment, The Philadelphia
Plan: A Study in the Dynamics o f Executive Power, 39 U. Chi
L. Rev. 723 (1972).41
Both the Department of Justice and the EEOC, the two federal
agencies charged with enforcement responsibilities under Title
VII, maintained consistently that race-conscious remedies were
permissible under Title VII. In appropriate cases they sought
court orders, consent decrees, and conciliation agreements con
taining such provisions. See, e.g., United States v. Ironworkers
Local 86, 443 F.2d 544 (9th Cir.), cert, denied, 404 U.S. 984 (1971);
118 Cong. Bee. 1665 (1972), 1972 Leg. Hist, at 1072 (press release
summarizing consent decrees); 118 Cong. Rec. 1662-64,1972 Leg.
Hist, at 1045 (remarks of Sen. Ervin criticizing EEOC for “re
quiring employers to practice discrimination in reverse by. . . [use
of] percentages, quotas, goals or ranges”). See also p. 43 n. 48,
infra. Furthermore, the courts, acting under section 706(g), had,
where necessary, imposed race-conscious remedies in order to
redress proven discrimination. See, e.g., Carter v. Gallagher, 452
F.2d 315 (8th Cir. 1971) (en banc), cert, denied, 406 U.S. 950
(1972) (applying Title VII analysis in action based on fourteenth
amendment); Ironworkers L ocal No. 86, 443 F.2d 554; United
States v. Sheetm etal Workers L ocal 36, 416 F.2d 123, 133 (8th
Cir. 1969); L ocal 53, International Association o f H eat ir Frost
Insulators v. Vogler, 407 F.2d 1047 (5th Cir. 1969), a ff ’g, 294 F.
Supp. 368 (E.D. La. 1968); Thorn v. Richardson, 4 F.E.P. Cases
299, 303 (W.D. Wash. 1971); United States v. L ocal 638, 337 F.
Supp. 217 (S.D.N.Y. 1972) (preliminary injunction); United States
v. Sheet M etal Workers, L ocal 10, 3 CCH Empl. Prac. Dec. f
8,068 (D.N.J. 1970) (preliminary injunction); NAACP v. Allen,
340 F. Supp. 703, 705-06 (M.D. Ala. 1972), a f f ’d, 493 F.2d 614
(5th Cir. 1974) (fourteenth amendment); Buckner v. Goodyear
41 The Senate rejected a rider to a supplemental appropriations bill that would
have barred programs like the Philadelphia Plan. See 115 Cong. Rec. 39,961
(1969) (remarks of Sen. Hruska). Although the Senate initially passed the rider,
id. at 40,039, it was subsequently rejected by the House, id. at 40,921, and,
upon reconsideration, by the Senate, id. at 40,749. See Comment, The
Philadelphia Plan: A Study in the Dynamics o f Executive Power, 39 U. Chi.
L. Rev. 723 (1972).
38
Tire ir R ubber Co., 339 F. Supp. 1108, 1125 (N.D. Ala. 1972),
a f f ’d without opinion, 476 F.2d 1287 (5th Cir. 1973).42
By the time Congress considered the 1972 amendments to Ti
tle VII, it was fully aware of the judicial decisions approving the
use of goals or ratios, H.R. Rep. No. 238, 92d Cong., 1st Sess.
8 n.2 (1971); S. Rep. No. 415, 92d Cong., 1st Sess. 5 n.l (1971);
118 Cong. Rec. 1662-76 (1972), 1972 Leg. Hist. 1046-1072, of the
Attorney General’s opinion upholding goals and timetables, and
of the Justice Department’s and EEOC’s view that goals and ratios
were permissible under Title VII. 118 Cong. Rec. 7166 (1972),
1972 Leg. Hist, at 1844; H.R. Rep. No. 238, 92nd Cong., 1st Sess.
16 (1971). Thus, had Congress simply left section 706(g) untouched
when it amended Title VII in 1972, its refusal to amend the sec
tion would have constituted a ratification of those decisions. Bob
Jones University v. United States, 461 U.S. 574, 599 (1983); id.
at 607 (Powell, J., concurring); North Haven Board o f Educa
tion v. Bell, 456 U.S. 512 (1982); Lorillard v, Pons, 434 U.S. 575,
580-81 (1978).
Congress did far more. First, in order “to give the courts wide
discretion, as has generally been exercised under existing law, in
fashioning the most complete relief possible,” 118 Cong. Rec. 7168
(1972), it reaffirmed the breadth of section 706(g) and added
language expanding its scope. The section was amended to
authorize
such affirmative action as may be appropriate, which may
include, but is not lim ited to, reinstatement or hiring of
employees, with or without back pay. . . or any other
equ itable relief as the court deem s appropriate.
42 U.S.C. § 2000e-5(g) (underscored language added in 1972).
Next, Congress expressly ratified decisions that had interpreted
Title VII:
42 Contrary to am icus curiae Operating Engineers Local 542’s contention, Op.
Eng. Br. at p 14-15 n.10, the court in Castro v. Beecher, 334 F. Supp. 930 (D.
Mass. 1971), a f f ’d in part and rev’d in part, 459 F.2d 725 (1st Cir, 1972), did
not hold that Title V II barred race-conscious relief. Id . at 733. The district
court did not doubt its authority to impose remedial goals. It merely declined
to exercise its authority under the facts as they then appeared. 334 F. Supp at
950; 459 F.2d at 737. Indeed, B eecher was not even a Title V II action. See 459
F.2d at 733.
39
In any area where the new law does not address itself, or
in any areas where a specific contrary intention is not in
dicated, it was assumed that the present case law as
developed by the courts would continue to govern the ap
plicability and construction of Title VII.
118 Cong. Rec. 7167 (1972), 1972 Leg. Hist, at 1844.43 By this
statement, Congress ratified the decisions authorizing goals. The
ratification was fully applicable to decisions authorizing race
conscious relief under section 706(g), cf. Stotts, 104 S.Ct. at 2590
n.15, inasmuch as the amendment expanded rather than curtailed
the scope of the section.
The Senate’s rejection of two amendments offered by Senator
Ervin further underscored its approval of goals as a means of
remedying past discrimination. His first amendment would have
barred any “department, agency or officer of the United States
from requiring employers to practice discrimination in reverse”.
118 Cong. Rec. 1662 (1972), 1972 Leg. Hist, at 1017. The second
would have made section 703(j) applicable to the Executive Order
and other statutes in addition to Title VII. 118 Cong. Rec. 4917
(1972), 1972 Leg. Hist, at 1681. Senators Javits and Williams,
respectively the Republican and Democratic floor leaders in the
Senate, argued against the amendments, 118 Cong. Rec. 1661-76,
4917-18. (1972), 1972 Leg. Hist, at 1046-48, 1070-73. In oppos
ing them, Senator Javits highlighted three court decisions and
two consent decrees that had expressly recognized the right of
executive agencies and the courts to require race-conscious hir
ing. 118 Cong. Rec. 1665-1676, 1972 Leg. Hist, at 1048-1070.
Senators Javits and Williams stated that the first amendment
would have barred courts as well as executive agencies from im
posing race-conscious goals.44118 Cong. Rec. 1616,1972 Leg. Hist.
43 The next paragraph of the statement, 118 Cong. Rec. 7168 (1972), stressed
that full make whole relief was within the scope of section 706(g); it did not
state that such relief exhausted the relief available under the section.
44 The amendment would not simply have deprived OFCC and the EEO C of
the authority to require contractors to adopt goals, as contended by amicus
Local 542 in its brief at 10. As Senator Javits argued, the amendment would
have barred the Justice Department or the EEO C from seeking judicial goals
(footn ote continued)
40
at 1046-47, 1072-73. The amendments were rejected, 118 Cong.
Rec. 1676, 4918, 1972 Leg. Hist, at 1074, 1681, thereby
demonstrating the Senate’s belief that goals were a necessary
means of remedying the effects of discrimination. Stotts, 104 S.
Ct. 2576, 2609-10 (Blackmun, J,, dissenting.)45
The House emphatically endorsed continued use of remedial
goals and timetables under Title VII. In discussing the advisability
of consolidating enforcement of Executive Order 11246 and Ti
tle VII in a single agency, the House Report stated that “affir
mative action is relevant not only to the enforcement of Executive
Order 11246 but is equally essential for more effective enforce
ment of Title VII in remedying employment discrimination.” H.R.
Rep. No. 238, 92d Sess. Cong., 1st Sess. 16 (1971), 1972 Leg. Hist.
at 76. Given Congress’ acute awareness that “affirmative action”
under the Executive Order included the imposition of goals and
timetables, see, e.g., 117 Cong. Rec. at 31,965-67 (1971), 1972 Leg.
Hist, at 210-ll(remarks of Rep. Green); 117 Cong. Rec. 31,965-66
(1971), 1972 Leg. Hist, at 212 (remarks of Rep. Hawkins), the
Report is strong evidence of the House’s approval of remedial goals
under Title VII. Moreover, like the Senate, the House defeated
a bill proposed by Congressman Dent that would have barred
quotas or preferential treatment under the Executive Order. 117
Cong. Rec. 32,111 (1971), 1972 Leg. Hist. 255-56.
The Solicitor General and amicus curiae Operating Engineers
Local 542 suggest that statements made by Representatives
under Title VII. 118 Cong. Rec. 1661, 1972 Leg. Hist, at 1046. Senator Ervin
did not disagree with this characterization. See also 118 Cong. Rec. 1676,1972
Leg. Hist, at 1072-73 (remarks of Sen. Williams).
45 Amicus curiae Operating Engineers Local 542 speculates that a Senator may
have voted against the first Ervin amendment simply because he did not want
to bar the use of goals under the Executive Order, and that such a vote thus
sheds no light on the Senate’s intentions as to judicially imposed goals. Op. Eng.
Br. at 14-15 n.10. The argument strains credulity. A Senator favoring the
wholesale imposition of goals upon federal contractors (irrespective of whether
the employers involved had engaged in discrimination) would hardly be op
posed to remedial goals judicially imposed only upon proven discriminators.
Thus, any Senator who voted against the bill was clearly in favor of judicially
imposed goals. See Com m ent, The Philadelphia Plan: A Study in the Dynamics
o f Executive Power, 39 U. Chi. L. Rev. at 759 n.189.
41
Erlenborn and Hawkins in 1972 demonstrate their (and the
House’s) understanding that Title VII prohibited the use of
judicially imposed goals. Sol. Loc. 93 Br. at 14 n.ll; Op. Eng.
Br. at 10-13. Representatives Hawkins and Erlenborn, however,
stated only that Title VII barred the establishment of quotas,
117 Cong. Rec. 31,965, 32,099-100 (1972), 1972 Leg. Hist, at 204,
261, not judicially imposed goals or goals established pursuant
to the Executive Order. Id. The distinction between quotas and
goals was made clear. 117 Cong. Rec. 31,965 (1971), 1972 Leg.
Hist, at 212-13 (remarks of Rep. Hawkins) (“I do not agree that
the Philadelphia plan imposes a quota”.)46
In Albem arle, 422 U.S. 405, this Court held that Congress’ re
jection in 1971 of a narrowing amendment to the back pay pro
vision of section 706(g), and the re-enactment of that provision
without change, was, in light of Congress’ knowledge of the courts
of appeals’ construction of the provision, a ratification of the
courts of appeals’ pre-1972 construction. Id. at 414 n.8, 420-21.
Similarly, Congress’ rejection of the anti-goal amendments and
its expansion of section 706(g), with the knowledge that the courts
and enforcement agencies had found goals permissible, une
quivocally demonstrate that Congress approved the use of race-
concious remedies.47
46 The important distinction between quotas and goals had been debated before
For example, in 1969 Congress considered the “Fannin Amendment” which was
intended to prohibit the Department of Labor from implementing the
Philadelphia Plan. See 37 n.41, supra. Although the debate in both houses of
Congress disclosed universal agreement that rigid, inflexible quotas should be
eschewed, large majorities favored flexible, race-conscious goals. Congressman
Bow explained the distinction as follows:
[T]he [Philadelphia] plan does not require, nor does it allow,
discriminatory hiring practices as implied in the use of the word ’quota’.
Instead the plan establishes a range of desirable hiring within which the
contractor must set his goal.
115 Cong. Rec. 40,905 (1969). See also id. at 40,915 (Rep. McGregor); id. at
40,916 (Rep. Rhodes); id. at 40,917 (Rep. Hawkins); id. at 40,919 (Rep. Gerald
Ford); id. at 40,743 (Sen. Percy).
47 The Solicitor’s argument based upon INS v. C hadha , 462 U.S. 919 (1983),
misses the point. Only the Senate rejected the Ervin amendment, but both houses
adopted existing case law interpreting Title VII; both expanded the breadth
(footn ote continued)
42
Congress further indicated its approval of affirmative measures
when it added Section 717, Pub. L. No. 88-352, Title VII, § 717,
as added by Pub. L. No. 92-261, § 11, 86 Stat. I l l (1972), codified
as amended at 42 U.S.C. § 20Q0e-I6 (Supp. V. 1981). Section 717
requires, among other things, that each federal department and
agency develop an affirmative action plan for employment. The
Civil Service Commission “is to review, modify and approve each
department or agency developed [plan] with full consideration
of particular problems and employment opportunity needs of in
dividual minority group populations within each geographic
area.” S. Rep. No. 415, 92 Cong., 1st Sess. 15 (1972). The purpose
of section 717 was to make the federal government a “model
employer.” 118 Cong. Rec. 2298 (1972) (statement of Senator
Williams). Requiring the federal government to institute affir
mative measures is inconsistent with the notion that Congress
intended to prohibit, or thought it had already prohibited, court-
imposed affirmative remedies for proven violations of Title VII.
3. The decisions o f this Court and the courts o f ap
peals support the use o f narrowly tailored race
conscious remedies to redress the effects o f past
discrimination
The Court’s reasoning in Weber, 443 U.S. at 201-05, upholding
voluntary, affirmative efforts to eliminate “conspicuous racial im
balance in traditionally segregated job categories”, id. at 209, is
equally applicable here. In Weber, the Court held that the goals
of eradicating discrimination and integrating blacks into the
mainstream of American society would be frustrated by an in
terpretation of section 703(a) and (d) of Title VII that prohibited
voluntary efforts to correct racial imbalance. Such remedies are
permissible so long as they are designed to remedy longstanding
discrimination and do not unnecessarily trammel the rights of
white workers. Id. at 208. It follows that a rule prohibiting similar
judicial relief against employers or unions which fails to correct
of section 706(g); and in the face of widespread controversy about, and judicial
acceptance of, goals, both refused to bar their use.
Moreover, the Solicitor’s argument flies in the face of cases holding that the
interpretation of a statute may be based upon subsequent Congressional inac
tion. E.g., B ob Jones University, 461 U.S. at 599-601.
43
an imbalance caused by their own discriminatory conduct would
also frustrate the purposes of the Act. As demonstrated in sec
tion III (A)(2), at 32-42 supra, neither section 706(g) nor section
703(j) bars such judicial relief to redress past discrimination. Ac
cordingly, “an interpretation of the Act that forbade all race
conscious remedial relief would bring about an end completely
at variance with the purposes of the statute and must be rejected.”
Id. at 202.48 * 37 * * * * 42
48 The Department of Justice and the EEO C, the federal agencies responsible
for the enforcement of Title VII, 42 U.S.C. § 2000e-4,5,6,8,12 and 14 (1981),
see Reorganization Plan No. 1 of 1978, E.O. 12067, 43 Fed. Reg. 19,807 (1978),
have throughout the two decades following passage of the Act maintained that
goals and other race-conscious means of remedying past discrimination are con
sistent with Title VII. E.g., Uniform Guidelines on Employee Selection Pro
cedures, 29 C.F.R. § 1607.17 (1985); Policy Statement on Affirmative Action
Programs for State and Local Government Agencies, 41 Fed. Reg. 38,814 (1976)
(issued by Equal Employment Opportunity Coordinating Council, composed
of heads of EEOC, the Department of Justice, the Department of Labor, the
Civil Service Commission and the Commission on Civil Rights). See 29 C.F.R.
§ 1607.17 (1982); Affirmative Action Appropriate Under Title VII of the Civil
Rights Act of 1964, as amended, 29 C.F.R. § 1608.4(c) (1985); 42 Op. Attv. Gen.
37 (1969); see also 28 C.F.R. § 42.203(i,j) (1985).
The position previously taken by the United States and the EEO C in this
case is consistent with this longstanding policy of both enforcement agencies.
Between June 1971 and July 1985, when the Solicitor General filed his response
to the petition for a writ of certiorari, all of the plaintiffs sought and supported
broad remedial court orders which include numerical goals, implementing ratios,
and timetables (JA. 372, 275-83, 157-61). Thus for example, in the complaint
filed in this action in 1971, former Attorney General Mitchell sought “selection
of sufficient apprentices from among qualified nonwhite applicants to over
come the effects of past discrimination” (JA. 374). Following the trial in 1975,
the United States Attorney for the Southern District of New York on behalf
of the EEO C argued:
In granting relief under Title V II Courts have wide discretion to fashion
the appropriate remedies and broad powers to grant affirmative relief.
42 U.S.C. §§ 2000e-5(g), 2000e-6(a).
[TJhis Court should establish a goal of no less than 30 percent nonwhite
membership in Local 28.
(footn ote continued)
44
This Court has expressed approval of race-conscious, non-victim
specific remedies intended to remedy proven employment
discrimination. Fullilove, 448 U.S. at 510-11 (Powell, J., concur
ring); Bakke, 438 U.S. at 353 n.28 (1978) (Brennan, White, Mar
shall and Blackmun, JJ.); id, at 301-02 (Powell, J.). Similarly, the
courts of appeals have unanimously approved the use of race
conscious remedies under section 706(g).49
In Albem arle, 422 U.S. 405, and Franks, 424 U.S. 747, the
Court found that awards of back pay and retroactive seniority
It is clear that “a reasonable preference in favor of minority persons to
remedy past discriminatory injustices is permissible.”
(JA. 276-77). As recently as July, 1984, the EEO C urged the court of appeals
that “the language and legislative history of 706(g) support the Commission’s
position that carefully tailored prospective race-conscious measures are permissi
ble Title V II remedies” (JA. 8).
The longstanding views of agencies charged with the statute’s administra
tion are entitled to great weight. N LRB v. Bell Aerospace Co., 416 U.S. 267,
274-75 (1974); R ed L ion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).
As this case indicates, the EEO C has of late shifted ground totally. Its radical
shift, so removed in time from the passage of the Act, counsels, at a minimum,
that little deference is due to its current view of these matters. Indeed, we sub
mit that deference should continue to be given to the EEO C ’s unwavering
previous position in the absence of either statutory or constitutional erosion of
the basis for that position.
* See, e.g,, Boston Chapter, N.A.A.C.E, Inc. v. Beecher, 504 F.2d 1017,1026-28
(1st Cir. 1974), cert, denied, 421 U.S. 910 (1975); Ass’n Against Discrim, in
Em ploym ent, Inc. v. City o f Bridgeport, 647 F.2d 256, 279-84 (2d Cir. 1981),
cert, denied, 455 U.S. 988 (1982); Rios v. Enterprise Ass’n Steamfitters L ocal
638, 501 F.2d 622, 631 (2d Cir. 1974); EEO C v. A m erican Tel. It Tel. Co., 556
F.2d 167, 174-77 (3d Cir. 1977), cert, denied, 438 U.S. 915 (1978); United States
v. In t i Union o f E levator Constructors, L oca l Union No. 5, 538 F.2d 1012,
1017-20, (3d Cir. 1976); Chisholm v. United States Postal Serv. 665 F,2d 482,
498-99 (4th Cir. 1981); W illiams v. City o f New Orleans, 729 F.2d 1554 (5th
Cir. 1984) (en banc); Jam es v. Stockham Valves It Fittings Co., 559 F.2d 310,
356 (5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978); Detroit Police Officers
Ass’n v. Young, 608 F.2d 671, 696-97 (6th Cir. 1979), cert, denied, 452 U.S. 938
(1981); United States v. City o f Chicago, 549 F.2d 415, 436 (7th Cir.), cert, denied,
434 U.S. 875 (1977); United States v. N.L. Indus., Inc. 479 F.2d 354, 380 (8th
Cir. 1973); Davis v. County o f Los Angeles, 566 F.2d 1334, 1342-44 (9th Cir.
1977), vacated as m oot, 440 U.S. 625 (1979); United States v. L e e Way M otor
Freight, Inc. 625 F.2d 918, 943-45 (10th Cir. 1979); Paradise v. Prescott, 767
F.2d 1514, 1527 (11th Cir. 1985); Thompson v. Sawyer, 678 F.2d 257, 293-95
(D.C. Cir. 1982).
45
were necessary to motivate employers to shun practices of dubious
legality and to “endeavor to eliminate, at long-last, the vestiges
of an unfortunate and ignominious page in this country’s history.”
Albem arle, 422 U.S. at 418; see Franks, 424 U.S. at 764. Similar
ly, a rule limiting relief to identifiable victims would serve as a
disincentive to employers to take steps to eliminate their
discriminatory practices and the effects of those practices. It
would create an incentive to ensuring that victims of discrimina
tion were not identifiable and would, as the facts of this case
illustrate, benefit the most blatant of discriminators. Petitioners
could avoid being subjected to any meaningful remedy by the
simple expedient of ensuring that their victims could not be iden
tified. They could maintain a nearly all white work force by
preserving their discriminatory reputation, thereby discourag
ing minority applications, see Teamsters, 431 U.S. at 365-66, or
as petitioners did here, by discouraging minority applicants who
called the union or went in person to obtain applications.
The impact of petitioners’ discriminatory practices has fallen
and will fall upon a whole range of victims whose identity will
never be discovered or proven: individuals whose applications
were discarded; others who were deterred from applying by the
union’s reputation; many who never knew about the union
because its reputation prevented it from being a subject of con
versation in minority communities; some who were unlawfully
denied membership but either did not know about this lawsuit
or are no longer in a position to join the union; relatives and
friends of the foregoing groups, who were deprived of support,
or of an opportunity to be informally trained for their own career
in sheet metal work. See Spiegelman, Court-Ordered Hiring
Quotas After Stotts, 20 Harv. C.R.-C.L. L. Rev. 339, 369-70 (1985)
(“Spiegelman”). Unlike the identities of these individuals, however,
the cause of all their injuries has been proven: petitioners’
longstanding resistance to fair employment laws and judicial
mandates enjoining discrimination. That conduct has establish
ed continuing barriers to equal employment opportunity in New
York City’s sheet metal industry. Consequently,
the [district] court has not merely the power but the duty
to render a decree which will so far as is possible eliminate
46
the discriminatory effects of [such conduct] as well as bar
discrimination in the future.
Albem arle, 422 U.S. at 418 (citing Louisiana v. United States,
380 U.S. 145, 154 (1965)).
Petitioners and the Solicitor miscontrue Albemarle, Franks and
Teamsters. These cases concern the retrospective, “make-whole”
component of Title VII. To the extent that they touched on the
prospective component of the Act, those cases disclose approval
of the wide discretion Congress accorded the courts to address
identified discrimination. Such prospective remedies need not be
restricted to the proven victims of discrimination. A lbem arle in
volved only the right of specific victims of racial discrimination
to an award of backpay.50 Similarly Franks concerned the extent
to which retroactive seniority may be awarded “identifiable ap
plicants who were denied employment because of race”51424 U.S.
at 750. Its holding was a straightforward application of the make-
whole retrospective feature of section 706(g) of the Act, which
bars judicial relief for an individual refused employment “for
any reason other than discrimination . . . .” See pp. 32-42, supra.
Granting seniority in Franks, 424 U.S. 747, to applicants who
had been rejected for non-discriminatory reasons would have
violated this provision. In contrast, the goal does “not compel
[petitioners] to [grant membership to] any particular
50 The issue before the Court in A lbem arle was narrowly framed to address
only the claims of identified victims to an award:
When employees or applicants for employment have lost the opportuni
ty to earn wages because an employer has engaged in an unlawful
discriminatory employment practice, what standards should a federal
district court follow in deciding whether to award or deny backpay?
422 U.S. at 408.
51 The Court defined the issue before it as follows:
This case presents the question of whether identifiable applicants who were
denied employment because of race . . . in violation of Title V II . . .
may be awarded seniority status retroactive to the dates of their
employment.
424 U.S. at 750.
47
applicants and [does] not require [that petitioners grant member
ship] to individuals who otherwise would have been rejected or
discharged on non-discriminatory grounds.” United States v. City
o f Buffalo, No. 85-6212, slip. op. at 9 (2d Cir. December 19,
1985).52
In Teamsters, the Court held that individual non-applicants
could not be awarded seniority unless they could demonstrate
that they would have applied but for the union’s discriminatory
reputation. 431 U.S. at 363. As in Franks, the Court’s holding
was an application of the principle that a court may not award
make-whole relief to a particular individual who had not been
subjected to actual discrimination.
In Teamsters, the Court touched on the prospective compo
nent of the Act. It noted that
[t]he federal courts have freely exercised their broad
equitable discretion to devise prospective relief designed to
assure that employers found to be in violation of § 707(a)
eliminate their discriminatory practices and the effects
52 The Court also held in Franks that relief that will further a central purpose
of the Act is not to be denied because innocent persons will be adversely af
fected by the relief. Franks, 424 U.S. at 777-78. “A sharing of the burden of
past discrimination is presumptively necessary” and “is entirely consistent with
any fair characterization of equity jurisdiction.” Id. at 777. Although the prin
ciple was invoked in Franks in connection with the make-whole purpose of the
Act, it applies a fortiori with respect to the Act’s “primary” purpose See Franks,
424 U.S. at 783 n.2 (Powell, J.)
Justice Powell’s partial dissent in Franks was based on his view that the ma
jority opinion failed to accord district courts adequate flexibility to award or
decline to award retroactive competitive seniority to identified victims of
discrimination. See 424 U.S. at 788. Justice Powell acknowledged that such an
award advances the “make-whole” purpose, but maintained that since such a
grant “causes only a rearrangement of employees along the seniority ladder
without any resulting increase in cost to the employer, Tide VIPs ‘primary ob
jective’ of eradicating discrimination is not served at all.” Id. At the same time,
the seniority award adversely affects the seniority expectations of innocent third
parties, expectations that were accorded special recognition by Congress. See
id. at 791. In contrast, the relief ordered below furthers the primary objectives
of the Act by removing the barriers to equal employment opportunity caused
by the union’s past and present discriminatory practices, broadening the pool
of workers available for employment in the sheet metal industry and ensuring
that future job opportunities are more equitably shared.
48
therefrom . . . . In this case prospective relief was incor
porated in the parties’ consent decree. See n.4, supra.
431 U.S. at 361 n.47. The footnote to which the Court referred
reveals that the “company obligated itself to hire one Negro or
Spanish-surnamed person for every white person hired.” Id. at
330 n.4.
The only issue in Stotts, 104 S. Ct. 2576, was whether retroac
tive seniority could be awarded to readily identifiable individuals
who had not been proven to be victims of discrimination. In fact,
as the EEOC aptly commented to the court of appeals, “[s]ince
the [Supreme] Court’s entire discussion [of § 706(g) in Starts] is
carefully limited to the improper award of ‘m ake-w hole’ relief,
it is clear that the Court consciously avoided addressing the
broader question of the availability of prospective race conscious
relief’ (emphasis in the original) (JA. 7). Consistent with
Teamsters and Franks, this Court held that under the policy em
bodied in section 706(g), retroactive seniority could not be award
ed to specific individuals who were not proven victims of
discrimination.
4. The race-conscious remedies im posed by the court below fur
ther the purposes o f Title VII and are fully supported by the
record
Title VII permits a court to impose race-conscious relief that
is not restricted to the proven victims of discrimination, although
this Court’s decisions counsel that orders which include such
remedies should not be entered lightly or routinely. See Weber,
443 U.S. 193; Fullilove, 448 U.S. 448. Of course, a court may not
impose a remedy — any remedy — over the objection of the
defendant except upon a finding of unlawful discrimination. See
Swann, 402 U.S. at 28; Milliken, 418 U.S. at 744-45. The remedy
imposed should extend no further than is reasonably necessary
to cure the identified discrimination. See Fullilove, 448 U.S. at
483; Milliken, 433 U.S. at 280-81. Where the remedy imposed
contains race-conscious features, it should be limited and pro
perly tailored to cure the effects of prior discrimination. See
Fullilove, 448 at 484. In this regard, a district court should con
sider factors such as “(i) the efficacy of alternative remedies . .
.(ii) the planned duration of the remedy. . . (iii) the relationship
between the percentage of minority workers to be employed and
49
percentage of minority group members in the relevant popula
tion or work force . . . and (iv) the availability of waiver provi
sions if the hiring plan could not be met.” Fullilove, 448 U.S. at
510-11 (Powell, J., concurring). The district court should also be
mindful of the effect of the order on third parties and its order
should not “unnecessarily trammel” the interests of white workers.
Weber, 443 U.S. at 208; accord Fullilove, 448 U.S. at 514 (Powell,
J., concurring).
The relief imposed by the district court in 1982 and 1983 en
compasses all of these considerations. It was necessitated by
decades of discrimination that numerous previous judicial and
administrative mandates had failed to cure.
The evidence adduced in the contempt proceedings dramatized
the continued need for a goal, as well as for the additional race
conscious relief contained in the Fund order.53 Twenty years after
the state court proceedings, twelve years after the Justice Depart
ment had brought suit, and eight years after the district court
had enjoined the union from continuing its discriminatory prac
tices, petitioners were still deliberately impeding the entry of
minorities into Local 28. Indeed, one would be hard-pressed to
find more compelling circumstances favoring imposition of race
conscious remedies than the situation in this case.
Petitioner’s discriminatory practices and policies, in the face
of federal and state laws and injunctions barring such discrimina
tion, make it unmistakably clear that something more is needed
to prevent future discrimination and to assure integration of the
union than injunctive remedies that merely track statutory pro
hibitions, see Morrow v. Chrisler, 491 F.2d 1053, 1055 (5th Cir.)
(en banc), cert, denied, 419 U.S. 895 (1974); Morrow v. Dillard,
580 F.2d 1284, 1295-96 (5th Cir. 1978); NAACP v. Allen, 493 F.2d
614 (5th Cir. 1974), and that require the union to conduct vigorous
recruiting and publicity campaigns. The plain lesson which the
courts below have drawn from petitioners’ past conduct is that.
53 Likewise, the record before the district court in 1975 demonstrated that an
order which did not include race-conscious provisions would not be effective.
The court found that “the imposition of a remedial racial goal in conjunction
with an admission preference in favor of nonwhites is essential to place defen
dants in a position of compliance . . .” (A. 352).
50
at least for now, the union simply cannot be trusted to make deci
sions in a non-discriminatory fashion or to comply with injunc
tions directing it to reach out to minority communities for new
members. Bias-free admission decisions can be assured only by
a directive requiring the union to make regular and substantial
progress toward reaching a level of minority membership that
parallels minority representation in the relevant work force.
Employment opportunities in the sheet metal industry in the
New York City metropolitan area are to a great degree restricted
to members of Local 28s4 (A. 322-24, 326). Thus, equality of
employment opportunity in the sheet metal industry in New York
City cannot be achieved until the union “removes the barriers
[to present job opportunities] that have operated in the past to
favor an identifiable group of white employees.” Griggs v. Duke
Power Co., 401 U.S. at 429-30. Essential to such an objective is
increasing minority membership in the union to the level it would
have reached absent past discriminatory practices.
Such thoroughgoing relief is also necessary to dispel the union’s
discriminatory reputation, earned over decades of unlawful
discrimination (A. 151, 350). Relief must assure potential minority
applicants that submission of an application will not be an act
of futility. Association Against Discrimination v. City o f
Bridgeport, 479 F. Supp. 101 (D. Conn. 1979), on rem and from
594 F.2d 306, 311 n.13 (2d Cir. 1979); Carter v. Gallagher, 452
F.2d 315, 331 (8th Cir. 1971) (en banc) cert, denied , 406 U.S. 950
(1972); see Bridgeport Guardians, Inc. v. Civil Service Commis
sion, 354 F. Supp. 778, 797 (D. Conn.), a f f ’d in part, rev’d in
part, 482 F.2d 133 (2d Cir. 1973). Only by changing “the out
ward and visible signs of yesterday’s racial distinctions” can the
union’s “reputation as an all-white organization,” NAACP v. Allen,
493 F.2d 614, 621 (5th Cir. 1974), be overcome so that a recruit
ment program can operate without being impaired by the linger
ing effects of the union’s discriminatory past. See Mims v. Wilson,
514 F.2d 106 (5th Cir. 1975); Morrow v. Crisler, 491 F.2d 1053
(5th Cir. 1974); Carter v. Gallagher, 452 F.2d at 315. Expanding 54
54 While petitioners maintain that Local 28 is a “small union,” Pet. Br. at 3,
it is the largest labor organization in the construction sheet metal trade in the
New York metropolitan area. Its members are employed on virtually every ma
jor construction involving sheet metal in New York City (JA. 406).
51
the minority work force also ensures that minority members will
learn of job opportunities through word-of-mouth, the major
means of job recruitment, on a more equal basis.55 See Blumrosen,
The Duty o f Fair Recruitment, 22 Rutgers L. Rev. 465, 490 (1968).
Because of Local 28’s past discrimination, minority persons
who become members of the union are compelled to work in
environments that are virtually all white. Such employees are fre
quently faced with an indifferent if not a hostile workplace and
with a union whose membership (and leadership) are unsym
pathetic to claims of discriminatory treatment (JA. 405). These
effects of past discrimination will not significantly abate,
therefore, unless the union is directed to accept a significant
number of additional minority members (A. 351). See Taylor v.
Jones, 489 F. Supp. 498 (E.D. Ark. 1980), a j f ’d, 683 F.2d 1193
(8th Cir. 1981); see Spiegelman, at 364-84.
In its 1964 decision, the New York State Commission For
Human Rights likened Local 28 to “the medieval guilds” (JA.
402). In guild-like fashion, union members maintain informal,
mutual support systems to help each other find and retain
employment. See n. 55, supra. Because of the Local’s tradition
of racial exclusion and its longstanding commitment to preferr
ing the relatives and friends of its members, minority appren
tices are at a decided disadvantage when seeking or keeping
employment. As noted above, p. 23, supra, the provisions of the
Fund address this reality.
The remedial provisions here under review were carefully ar
rived at and contain great flexibility to deal with changing cir
cumstances. In imposing its order, the district court fixed the
29.23 % goal to reflect the representation of minority members
between the ages of 18-24 in the relevant labor market56 (A
119-123). The O&J, AAAPO and the Fund order are all temporary.
55 As petitioners note, “referral and hiring was done informally through word
of mouth and contacts with other members, apprentices and contractors” (Pet.
Br. at 4 n.5).
M Likewise, the district court exhibited great care in fixing the goal in 1975 (A.
353-54). In both instances the court of appeals affirmed the findings of the
district court (A. 168, 33).
52
They will expire, and court supervision of the admission process
will terminate, when the proportion of minority union members
approximates the proportion of minorities in the relevant labor
market (A. 54-55).
The goal only minimally impairs the rights of non-minority
union members and applicants, if at all, because the court has
insisted that the Local fully utilize the apprenticeship program,
thereby opening more opportunities for all. See Weber, 443 U.S.
at 280; Fullilove, 448 U.S. at 514-15 (Powell, J.). As modified by
the court of appeals, AAAPO does not require indenture of any
specific ratio of minority apprentices. No incumbent union
member or readily identifiable applicant will be displaced from
the union or from any job. No unqualified minority persons will
become members of the union or obtain job employment oppor
tunities by virtue of the district court’s order. The goal merely
ensures that competition for sheet metal jobs will not continue
to be limited to members of a pool artificially restricted by the
union’s past discriminatory acts (A. 54).
The Fund order and AAAPO do not impose any burden on
white union members or applicants, as AAAPO expressly pro
vides that the union may provide precisely the same services to
whites (A-76, 118). Many provisions of the Fund order, particular
ly those which provide for financial assistance to employers that
cannot otherwise meet the 1:4 apprentice to journeyman require
ment of AAAPO, and for incentive or matching funds to attract
additional funding for job training programs, are entirely race-
neutral and operate to the benefit of whites and non-white ap
prentices alike Similarly, the 1:4 apprentice-to-journeyman ratio
is itself not race-conscious and does not unnecessarily trammel
the interests of white journeymen. Adherence to the ratio, which
is based upon the standard in the industry (A. 34, 66), will simply
ensure that a reasonable share of present job opportunities will
be afforded to an apprentice pool untainted by past discrimina
tion. Moreover, given that the primary route into the union (and
to journeyman status) is through the apprenticeship program,
the 1:4 ratio will expedite the transition from a union whose
journeyman ranks were formed by discrimination to one that is
truly integrated and free from the effects of past discrimination
(A. 66-67).
53
The goal’s flexibility is evidenced by the court’s two prior
modifications of the goal, see pp, 7, 11, supra, and its express
refusal to hold the union in contempt for not meeting the goal
in 1982. However, the goal is meaningful. The district court has
repeatedly admonished that the Local is under an obligation to
assure “regular and substantial progress” (A. 305, 183, 54) every
year toward achieving the goal. Through imposition of fines, the
court hoped that the Local “will conclude that it is too expen
sive to continue to violate the court’s order and will make real
and substantial effort to bring an end to the obvious and per
nicious discriminatory practices that permeate this trade” (A. 112).
This Court stated in Weber.
It would be ironic indeed if a law triggered by a Nation’s
concern over centuries of racial injustice and intended to
improve the lot of those who had been excluded from the
American dream for so long, 110 Cong. Rec. 6552 (1964)
(remarks of Sen. Humphrey), constituted the first legislative
prohibition of all voluntary, private, race-conscious efforts
to abolish traditional patterns of racial segregation and
hierachy.
443 U.S. at 204. It would be even more ironic if Title VII were
held to bar one of its major objectives: remedying traditional pat
terns of segregation caused by decades of purposeful, egregious
discrimination.
B. The Remedies Imposed Comport with the Equal Pro
tection Component of The Due Process Clause of The
Fifth Amendment
Nothing in the equal protection component of the Fifth
Amendment’s due process clause deprives the district court of
authority to impose the remedies it ordered in this case. Racial
classifications imposed to eliminate the continuing effects of
unlawful discrimination, and to bar similar discrimination in the
future, are constitutional. Thus, the Court has ruled that a
medical school may properly consider the race of its applicants,
at least when a proper body has found that discrimination has
impaired the ability of minority group members to compete for
54
entry into the program. Regents o f the University o f California
v. Bakke, 438 U.S. 265 (1978) (Powell, J.); id, at 355 (Brennan,
White, Marshall, and Blackmun, JJ.). Similarly, in school
desegregation cases, the Court has upheld the assignment of
students and faculty on the basis of race, when necessary to
eliminate “root and branch” the continuing effects of racial
discrimination. Swann, 402 U.S. at 18-21; M cDaniel v. Barresi,
402 U.S. 39, 41 (1971); North Carolina State Board o f Education
v. Swann, 402 U.S. 43, 46 (1971); United States v. Montgomery
County Board o f Education, 395 U.S. 225 (1969); see also United
Jew ish Organization v. Carey, 430 U.S. 144, 159-62 (1977). And
in its most recent pronouncement on the constitutionality of race
conscious remedies, this Court upheld a federal law requiring
that at least ten percent of federal funds for public works pro
jects be awarded to construction companies owned or controll
ed by members of minority groups. Fullilove, 448 U.S. 448
(Burger, C.J., joined by White and Powell, JJ.); id, at 495 (Powell,
J.); id. at 517 (Marshall, J., joined by Brennan and Blackmun,
JJ-)-54
Contrary to the contentions of the Solicitor and petitioners,
this Court has upheld relief benefitting members of groups that
have suffered discrimination, irrespective of whether the in
dividuals receiving the benefit had themselves been victims of
that discrimination. Thus, in Fullilove, the Court upheld the ten
percent set-aside although minority contractors were eligible
under the set-aside whether or not they could make an in
dividualized showing that they suffered from the continuing ef
fects of discrimination. See Fullilove, 448 U.S. at 520 n.4 (Mar
shall, J., joined by Brennan and Blackmun); id. at 530 n.12
(Stewart, J., dissenting); id. at 540-41 and 541 n.13 (Stevens, J.,
dissenting); see also 448 U.S. at 479-80 (Burger, C.J.). And under
Bakke, 438 U.S. at 265, a candidate’s race can be considered
54 Remedial decrees incorporating racial classifications may be justified by
statutory as well as constitutional violations. Fullilove, 448 U.S. at 483 (Burger,
J., joined by White and Powell, JJ.), citing Franks, 424 U.S. 747 (1976), Teamsters,
431 U.S. 324 (1977), and A lberm arle, 422 U.S. 405. A ccord United Jewish
Organization, 430 U.S. at 147-165 (White, J., joined by Brennan, Blackmun
and Stevens, JJ.).
55
whether or not he had himself suffered discrimination that im
paired his ability to compete for admission to the school. Id. at
366 (Brennan, White, Blackmun, Marshall, JJ.); id. at 315-320
(Powell, J.).
Similarly, the Court has upheld race-conscious relief design
ed to remedy proven discrimination even when those adversely
affected by the remedy have not been responsible for, or the
beneficiaries of, acts of discrimination. Thus, in Fullilove, the
set-aside was upheld despite the recognition that such “[rjace con
scious remedies, popularly referred to as affirmative-action pro
grams, almost invariably affect some innocent persons.” Fullilove,
448 U.S. at 506-07 n.8, 514-517 (Powell, J., concurring). “When
effectuating a limited and properly tailored remedy to cure the
effects of prior discrimination, such a ‘sharing of the burden’ by
innocent parties is not impermissible.” Id. at 484 (Burger, C.J.,
joined by White and Powell, JJ.) (citing Franks, 424 U.S. at 777,
Albem arle, 422 U.S. at 405, and United Jew ish Organization,
430 U.S. at 144); accord Fullilove, 448 U.S. at 518 (Marshall, J.) ;
Bakke, 438 U.S. at 325; United Jew ish Organization, 430 U.S.
at 177 n.5 (Brennan, J., concurring). See also Franks, 442 U.S.
at 774.
The specific race-conscious measures imposed below are con
stitutional. They are remedies designed to serve important govern
mental objectives and are substantially related to achievement
of those objectives. Bakke, 438 U.S. at 359 (Brennan, White, Mar
shall and Blackmun, JJ.); see also Fullilove, 448 U.S. at 519 (Mar
shall, J., joined by Brennan and Blackman, JJ.). They are also
narrowly drawn to further a compelling governmental interest.55
Fullilove, 448 U.S. at 496, 498 (Powell, J.); cf. Bakke, 438 U.S.
at 305 (Powell, J.). Both the adjusted goal of 29.23 percent, and
the Fund order were designed to overcome the effects of iden
tified discrimination, and to assure that the union would not con
tinue to discriminate. This Court has held those purposes to be
legitimate, substantial and compelling. Bob Jones University, 461
55 The Court has not required that remedial plans be limited “to the least restric
tive means of implementation . . . [T]he choice of remedies to redress racial
discrimination is a ‘balancing process left, within appropriate constitutional
or statutory limits, to the sound discretion of the trial court.,” Fullilove, 448
U.S. at 508 (Powell J., concurring) (citing Franks, 424 U.S. at 794 (Powell, J.)).
56
U.S, at 594-95 (1983); Fullilove, 448 U.S. at 496, 497 (Powell, J.);
id. at 475-76 (Burger, C.J., joined by White and Powell, JJ.); id.
at 542-43 (Stevens, J.); Bakke, 438 U.S. at 407 (Powell, J.);
M cDaniel v. Barresi, 402 U.S. 39, 41 (1971).
The means employed by the district court were narrowly drawn
to redress the effects of the union s long history of discrimina
tion and are substantially related to achievement of that goal.
This Court has often upheld the use of numerical race-based ratios
to fashion relief for discriminatory practices. Fullilove, 448 U.S.
at 453 (Burger C.J., joined by White and Powell, JJ., concurr
ing); id. at 482 (Powell, J., concurring);56 Id. at 517 (Marshall,
J. joined by Brennan and Blackman, JJ.); United Jewish
Organization, 430 U.S. at 147; Swann, 402 U.S. at 18 21; Bakke,
438 U.S. at 269 (Powell, J.). As demonstrated in Point IIIA, the
remedies imposed by the district court are flexible, and the burden
imposed upon whites by the race-conscious remedies is the
minimum necessary to redress the exclusion of minorities from
Local 28 and the JAC. The remedies are thus consistent with the
governing principles formulated by this court. See Fullilove, 448
U.S. at 448; Bakke, 438 U.S. at 269.57
56 The reasoning by which this Court sustained Congress’ race-conscious remedy
in Fullilove is fully applicable to judicial race-conscious remedies imposed to
redress proven discrimination. Like the Fullilove set-aside, judicially imposed
goals have been authorized by Congress. Point IIIA, supra. Moreover, a district
court’s authority to eliminate the effects of past discrimination is as broad as
Congress’ authority. Fullilove, 448 U.S. at 510-14 (Powell, J.); North Carolina
State Bd. o f Ed. v. Swann, 402 U.S. 43, 46 (1971). Indeed, the need for race
conscious remedies is even greater here inasmuch as the remedy was imposed
only against a specific union that had been expressly found to have engaged
in a long history of race discrimination. In Fullilove, the set-aside benefitted
contractors who had not been subjected to discrimination and adversely af
fected many contractors that had never discriminated.
57Title V II is not a bill of attainder, as the Act does not apply to “named in
dividuals or to easily ascertainable members of a group in such a way as to
inflict punishment on them without judicial trial. . . .” United States v. Lovett,
328 U.S. 303, 315 (1946). Section 706(g) does not single out any specific class
of persons who, because of past activities, are “ineluctably designated” for punish
ment. 104 S.Ct. 3348, 3353 (1984), (citing Communist Party o f the United States
v. Subversive Activities Control Board, 367 U.S, 1, 87 (1961)); see United States
(footnote continued)
57
IV. THE CREATION OF THE OFFICE OF
ADMINISTRATOR WAS PROPER
Local 28 objects to the office of the administrator, claiming
that, in light of what it characterizes as its “established record
of adherence to [court] orders,” the creation of the office was not
the least intrusive remedy, and that the administrator is a receiver
supplanting the Local’s right to self-government. Pet. Br. at 42.
Local 28 also argues that the powers delegated to the ad
ministrator resulted in an abdication of judicial powers. We have
shown that these claims are untimely, see Point I, supra. In ad
dition, these belated arguments fail on the merits.* 58
The Local’s argument that there “was no basis” for appoin
ting the administrator in 1975 because “[b]y 1975, Local 28 had
an established record of adherence to orders,” Pet. Br. at 42, is
belied by the repeated findings of the courts below. See pp. 3,
and 5-6, supra. Indeed, the Local’s record of “past recalcitrance”
(A. 220), “bad faith” (A. 214) and “foot-dragging” (A. 24) over
v. Lovett, 328 U.S. at 322-23 (Frankfurter, J., concurring). Moreover, race
conscious remedies do not punish any person, but rather confer a benefit on
members of a class judicially determined to have been excluded from employ
ment opportunities by practices that violate Title VII. “That burdens are plac
ed on citizens by federal authority does not make those burdens punishment.”
Selective Sew. Sys. v. Minn. Public Int. Research Group, 104 S. Ct. at 3355
(citing Nixon v. Admin, o f G eneral Services, 433 U.S. 425, 470 (1977)). Here,
no person is permanently deprived of the opportunity to engage in the voca
tion of his choice, see Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866); Ex
Parte Garland, 71 U.S. (4 Wall) 333 (1867), and thus, section 706(g) “is in no
sense punitive; it authorizes no punishment in any normal or general accep
tance of that familiar term.” Selective Sew. Sys., 104 S. Ct. at 3360 (Powell,
J., concurring).
58 The court of appeals rejected petitioners’ attempt to limit the powers of the
administrator to adjudicating disputes under AAAPO, see pp. 11 n.13, 13, supra,
Sol. Loc. 28 Br. at 22, as both untimely and meritless. It stated that:
Local 28’s complaint that the obligations imposed by AAAPO will in
terfere with its right to self government need not detain us. . . . We have
rejected this contention on previous appeals [citation omitted], and we
reiterate that the government of Local 28 will be returned to its members
as soon as it ends its unlawful discrimination against nonwhites. Until
that time, the government of Local 28 must remain subject to the super
vision of the district court and the administrator.
(A. 31).
58
the past twenty years demonstrates the need for continuous over
sight of the “process of its legally required integration,” supra at
3. Accord A lberm arle, 422 U.S. at 418; see Special Project, The
R em edial Process in Institutional Reform Litigation, 78 Colum.
L. Rev. 784, 835 (1978) (“Special Project”); Harris, The Title VII
Administrator: A Case Study in Judicial Flexibility, 60 Cornell
L. Rev. 53 (1974) (“Harris”).
Courts have often upheld the appointment of an administrator
or special master to oversee the implementation of judgments
in complex civil rights cases where the defendant has failed to
comply with court orders requiring changes in existing practices
and conditions. See New York State Association fo r Retarded
Children v. Carey, 706 F.2d 956, 962-63 (2d Cir.), cert, denied,
464 U.S. 915 (1983); Ruiz v. Estelle, 679 F.2d 1115, 1159-63 (5th
Cir. 1982), cert, denied, 460 U.S. 1042 (1983); Gary W. v. State
o f Louisiana, 601 F.2d 240, 244-45 (5th Cir. 1979). Moreover,
the special difficulties inherent in monitoring compliance with
a decree aimed at the construction industry particularly justify
the office of the administrator. Harris, 60 Cornell L. Rev. at 62-63.
See cases cited in Pet. Br. at 44 n. 32.
The Local’s argument that the administrator is a receiver sup
planting the Local’s right to self-government is frivolous. Unlike
a receiver, the administrator has not replaced Local 28’s officers.
See Special Project, 78 Colum. L. Rev. at 835-37. The powers
granted the administrator did not interfere in any way with Local
28’s self-governance. Local 28 retains complete autonomy regar
ding its own elections and the collective bargaining process. To
the extent that the administrator monitors admission to union
membership or employment, such monitoring is fully justified
by Local 28’s “past recalcitrance” in response to court orders (A.
220) .
In any event, as the court of appeals stated in 1976, “[wjhile
union self-government is desirable and is, indeed, an ideal to
which the law aspires, 29 U.S.C. § 401, [the] interest in union
self-government cannot immunize Local 28 from the conse
quences of its actions” (A. 220). The principle of union self-
governance has never been allowed to override requirements im
posed by the labor laws or any other law. See Wirtz v. Local
153, Glass Bottle Blowers Association, 389 U.S. 463, 471 (1968)
59
(the freedom allowed unions to conduct their own elections is
reserved for those elections which conform to the democratic prin
ciples written into 29 U.S.C. § 401); Myers v. Gilman Paper Corp.,
544 F.2d 837, 857-59 (5th Cir.), cert, dismissed, 434 U.S. 801 (1977)
(collectively bargained agreements may be overidden if they
“either violatef ] Title VII or [are] inadequate in some particular
to cure the effects of past discrimination”).
Further, the administrator s appointment has not resulted, as
Local 28 claims, in an abdication of judicial power.59 First, the
administrator was appointed after liability was determined to
oversee implementation of the O&J and RAAPO (now AAAPO).
Thus, cases which concern the appointment of special masters
to determine liability, such as L a Buy v. Howes L eather Co.,
352 U.S. 249 (1957), Pet. Br. at 45, are inapposite.60 See Special
Project, 78 Colum. L. Rev. at 807. Second, because the ad
ministrator was appointed by the district court, is responsible to
that court and is subject to review by that court, his appoint
ment is not, as the union strains to argue, Pet. Br. at 45-46, in
violation of Article III, Section 1, of the United States Constitu
tion. See Northern Pipeline Construction Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 76-80 (1982); United States v. Raddatz,
447 U.S. 667, 681-84 (1980).
59 A district court’s authority to appoint an administrator stems not only from
Fed. R. Civ. P. 53, as petitioners contend, Pet. Br. at 45, but also from the court’s
inherent power
to provide [itself] with appropriate instruments required for the perfor
mance of [its] duties. . . . This power includes authority to appoint per
sons unconnected with the court to aid judges in the performance of
specific judicial duties, as they may arise in the progress of a cause. From
the commencement of our government it has been exercised by the federal
courts, when sitting in equity, by appointing, either with or without the
consent of the parties, special masters, auditors, examiners and
commissioners.
In Re Peterson, 253 U.S. 300, 312-13 (1920); see also Ruiz v. Estelle, 679 F.2d
at 1159-61, and cases cited therein at 1161 n.240.
60 Indeed, L a Buy supports the proposition that masters are particularly ap
propriate for making post-liability determinations. 352 U.S. at 249.
60
In sum, the appointment of the administrator in 1975 was pro
per, and because Local 28 has continued to refuse to comply with
court orders, the district court’s extension of the administrator’s
term in AAAPO was clearly appropriate.
V. PETITIONERS8 CHALLENGE TO IIS LIABILI
TY AND THE GOAL, BASED ON HAZELWOOD
SCHOOL DISTRICT v. UNITED S W E S , 433 U.S.
299 (1977), IS MERITLESS
Local 28 also quarrels with evidentiary determinations regard
ing statistics which the district court made over ten years ago.
It contends that liability was improperly found and the 29 % goal
was improperly established because the appropriate percentage
in the labor force which the district court found failed to dis
count disparities due to pre-Act discrimination and incorrectly
drew the geographical boundaries of the labor market. Pet. Br.
at 35. In support of these contentions, it points to this Court’s
decision in H azelw ood School District v. United States, 433 U.S.
299 (1977), but relies almost exclusively on the views set forth
in the dissenting opinion which Judge Meskill wrote in the 1977
appeal in this case. The union is now foreclosed from asserting
these claims. See Point I, supra. These claims are also meritless.
The 1975 findings of discrimination were consistent with
H azelwood. In H azelwood, this Court declared that “[w]here
gross statistical disparities can be shown, they alone may in a
proper case constitute prima facie proof of a pattern or practice
of discrimination.” 433 U.S. at 307-08. The Court observed,
however, that an employer might rebut this proof by presenting
proof that from the effective date of Title VII forward it made
all of its employment decisions in a wholly nondiscriminatory
way. Id. at 309. Accord Teamsters,-431 U.S. at 360. This Court
also noted that what employment figures prove depends on which
figures are compared. Id. at 310. The Court counseled that this
is a factual determination which is to be made initially in the
district court. Id. at 312.
In this case, few statistical comparisons were made because,
as the district court found, the Local failed to maintain statistics
as required by the EEOC regulations (A. 331, 329). Liability was
not based on inferences that could be drawn from racial
disparities between the proportion of minorities in the labor
61
market and in the union. Instead, liability was based on “direct
and overwhelming evidence of purposeful racial discrimination
over a period of many years” (A. 169), which began before the
passage of the 1964 Civil Rights Act, and continued long after
this case was initiated. See, pp. 2-3, 5 supra; Sol. Loc. 28 Br. at
18; A. 333 n.12 and A. 169, n.8, 212-15.
The 29 percent goal established by the district court a decade
ago as a measure of when equality of opportunity within the
Local could be achieved was based on a finding that the ap
propriate geographic area from which the membership of the
union is drawn matched the geographic boundaries of the union’s
jurisdiction (A. 353). The local did not contest this finding at
the time the decision was rendered.
Petitioners eventually raised this issue on their second appeal
in 1977, but, as the court of appeals observed, simply did not
show that a significant number of union members resided out
side New York City (A. 168). Accordingly, the court of appeals
affirmed the district court’s finding (A. 168).61 It is factual fin
dings such as these, concurred in by two lower courts, which this
Court has often stated that it is reluctant to disturn, E.g., Rogers
v. Lodge, 458 U.S. at 623; see National Collegiate Athletic
Association v. Board o f Regents, 104 S.Ct. at 2959 n.15 (1984).
61 In view of the expanded jurisdiction of the union, the district court in August
1983 adjusted the goal and fixed it at 29.23 %. Although, in the district court,
the Local sought to prove that the adjusted goal should be fixed at 21.7 % (A.
120), it now contends that “there is no evidence in the record from which the
correct percentage [goal] could be derived” (Pet. Br. at 36), and urges a hiring
goal of 16.2%. Id. at 36 n.26. The district court weighed conflicting evidence
on this issue — indeed, New York City requested a 33 % to 41 % goal (A. 120)
— and selected an “intermediate figure”, H azelw ood, 433 at 312, of 29.23%
(A. 122). The court of appeals affirmed (A. 33).
62
CONCLUSION
For the reasons set forth above, the judgment of the court of
appeals should be affirmed.
Respectfully submitted,
ROBERT ABRAMS
Attorney General o f the
State o f New York
Attorney fo r Respondent
New York State Division
o f Human Rights
Two World Trade Center
New York, New York 10047
(212) 488-3943
ROBERT HERMANN
Solicitor General
O. PETER SHERWOOD
Deputy Solicitor General
Counsel o f Record
LAWRENCE S. KAHN
COLVIN W. GRANNUM
JANE LEVINE
MARTHA J. OLSON
Assistant Attorneys General
MARGARITA ROSA
General Counsel
New York State Division o f
Human Rights
55 West 125 Street
New York, NY 10027
APPENDIX
A-l
ADMINISTRATIVE CODE OF THE CITY OF NEW YORK
§ Bl-7.0 Unlawful discriminatory practices: 1. It shall be an
unlawful discriminatory practice:
* * *
(c) For a labor organization, because of the age, race, creed,
color, national origin or sex of any individual to exclude or to
expel from its membership such individual or to discriminate in
any way against any of its members or against any employer or
any individual employed by an employer.
* * *
§ Bl-8.0 Procedure.
* * *
[Subdiv. 2]
(c) If, upon all the evidence at the hearing, the commission,
or such members as may be designated, shall find that a respon
dent has engaged in any unlawful discriminatory practice as
defined in this title, the commission shall state its findings of fact
and shall issue and cause to be served on such respondent an order
requiring such respondent to cease and desist from such unlawful
discriminatory practice and to take such affirmative action, in
cluding (but not limited to) hiring, reinstatement or upgrading
of employees, with or without back pay, restoration to member
ship in any respondent labor organization, admission to or par
ticipation in a program, apprenticeship training program, on-
the-job training program or other occupational training or
retraining program, the extension of full, equal and unsegregated
accommodations, advantages, facilities and privileges to all per
sons, evaluating application for membership in a club that is not
distinctly private without discrimination based on race, creed,
color, national origin or sex, payment of compensatory damages
to the person aggrieved by such practice, as, in the judgment of
the commission will effectuate the purposes of this title, and in
cluding a requirement for report of the manner of compliance.
If, upon all the evidence, the commission shall find that a respon
dent has not engaged in any such unlawful discriminatory prac
tice, the commission shall state its findings of fact and shall issue
A-2
and cause to be served on the complainant an order dismissing
the said complaint as to such respondent. The commission shall
establish rules of practice to govern, expedite and effectuate the
foregoing procedure and its own actions thereof. (Amended by
L.L. 1984, No. 63, Oct. 24).
COUNSEL PRESS INC.,
11 EAST 36TH STREET, NEW YORK, NEW YORK 10016
(212) 685-9800; (516) 222-1021; (914) 682-0992
(5840)