Local Nuber 93, International Association of Firefighters AFL-CIO, C.L.C. v City of Cleveland Brief Amici Curiae in Support of Respondents

    Nos. 84-1999, 84-1656

In the

SUPREME COURT OF THE UNITED STATES
O ctober T erm, 1985

L ocal N umber 93, International  A ssociation  
of F irefighters AFL-CIO, C.L.C.,

Petitioner,
v.

C ity of  C leveland , et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

L ocal 28 of the Sheet M etal W orkers’ I nternational 
A ssociation , and L ocal 28 J oint 

A pprenticeship C ommittee,
Petitioners,

v.
E qual E mployment O ppo rtu n ity  C ommission,

C ity of N ew  Y ork, and  N ew  Y ork  State 
D ivision  of H uman  R ig h ts ,

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE NATIONAL ASSOCIATION 

FOR THE ADVANCEMENT OF COLORED PEOPLE, 
THE AMERICAN CIVIL LIBERTIES UNION AND 

THE NATIONAL BLACK POLICE ASSOCIATION AS 
AMICI-CURIAE IN SUPPORT OF RESPONDENTS 

CITY OF CLEVELAND, THE VANGUARDS OF 
CLEVELAND, CITY OF NEW YORK 

AND STATE OF NEW YORK
H arold R. Tyler 
James R obertson 
N orman R edlich 

Trustees
W illiam L. R obinson 
R ichard T. Seymour 

Lawyers’ Committee for 
Civil R ights under Law 

Suite 400,
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212
January 24, 1986.

P aul C. Saunders 
Counsel o f Record

Betsy A. Breese 
Stacey E. Elias

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
57th Floor
New York, N.Y. 10005 
(212) 422-3000

Attorneys for Amici-Curiae 
Counsel continued on inside cover



E. R ichard Larson 
Burt N euborne 

American C ivil L iberties 
Union F oundation 

132 West 43rd Street 
New York, N.Y. 10036 
(212) 944-9800

G rover G. Hankins 
Charles E. Carter 

N ational Association for 
T he Advancement of 
Colored People 

186 Remsen Street 
Brooklyn, N.Y. 11201 
(718) 858-0800 

Attorneys for Amici-Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................................  iii
CONSENT OF PARTIES................................................  1
INTEREST OF AMICI....................................................  I
STATEMENT OF THE CASES...............................   2
SUMMARY OF ARGUMENT......................................  5
ARGUMENT...................................................................  7

I. CLASSWIDE RACE-CONSCIOUS NUMER­
ICAL RELIEF IS A PRACTICAL NECES­
SITY; IT IS SOMETIMES THE ONLY REM­
EDY THAT CAN EFFECTUATE THE CRITI­
CAL POLICY UNDERLYING TITLE V II......  7
A. It Would Be Impossible Effectively To

Enforce Title VII Without Classwide Nu­
merical Relief In Appropriate Cases.........  7

B. Victim-Specific Relief Is Often Too Nar­
row To Achieve The Goals Of Title VII..... 13

C. Effective Eradication Of Past Dis­
crimination Requires Integration In The 
Workplace..................................................  15

II. COURTS ARE INVESTED WITH WIDE DIS­
CRETION UNDER SECTION 706(g) TO OR­
DER CLASSWIDE RACE-CONSCIOUS NU­
MERICAL RELIEF WHERE SUCH RELIEF 
IS NECESSARY TO EFFECTUATE THE 
PURPOSES OF TITLE VII............    16
A. Section 706(g) of Title VII Permits

Many Forms of Relief Including Prospec­
tive Classwide Affirmative Relief And 
Make-Whole Relief As Remedies For 
Employment Discrimination......................  16

B. Congress Intended To Invest District 
Courts With Wide Authority To Remedy 
Discrimination And Endorsed The Courts’
Use Of Affirmative Classwide Race- 
Conscious Numerical Remedies In Appro­
priate Cases................................................  19

Page



11

Page

III. FEDERAL COURTS HAVE AWARDED OR
APPROVED NUMERICAL RELIEF ONLY 
AFTER A CAREFUL EXAMINATION OF 
THE NEED FOR THE RELIEF AND THE 
EFFECT SUCH RELIEF WOULD HAVE ON 
NONMINORITIES.........................   25

IV. STOTTS DOES NOT PROHIBIT PROSPEC­
TIVE RACE- AND GENDER-CONSCIOUS 
RELIEF UNDER TITLE VII.............................  28

CONCLUSION............................................    29



Page

TABLE OF AUTHORITIES

C ases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).. 7, 15, 16
Berkman v. City of New York. 536 F. Supp. 177 

(E.D.N.Y. 1982), ajf’d, 705 F.2d 584 (2d Cir.
1983).......................................................................... 13,16

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 
1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
( 1975)....... ................................................................ 17

Britton v. South Bend Community’ School Corpo­
ration, 775 F.2d 794 ( 7th Cir. 1985).......................  28

Buckner v. Goodyear Tire and Rubber Co., 339 F.
Supp. 1108 (N.D. Ala. 1972), ajf’d, 476 F.2d 1287
(5th Cir. 1973).........................................................  24

California Hospital Association v. Henning, 770 F.2d
856 (9th Cir. 1985)..................................................  25

Chisholm v. United States Postal Service, 665 F.2d
482 (4th Cir. 1981)..................................................  16

Commonwealth of Pennsylvania v. Local 542, Oper­
ating Engineers, 38 Fair Empl. Prac. Cas. ( BNA)
673 (3d Cir. 1985)....................................................  28

Commonwealth of Pennsylvania v. Rizzo, 13 Fair
Empl. Prac. Cas. ( BNA) 1475 ( E.D. Pa. 1975)  13

Contractors Association v. Secretary o f Labor, 442 
F.2d 159 (3d Cir.), cert, denied, 404 U.S. 854
(1971).......................................................................  22

Diaz v. American Telephone & Telegraph Co., 752
F.2d 1356 (9th Cir. 1985)....................................... 28

Deveraux v. Geary, 765 F.2d 268 ( 1st Cir. 1985).......  28
EEOC v. American Telephone & Telegraph Co., 419 

F. Supp. 1022 (E.D. Pa. 1976), ajf’d, 556 F.2d 167 
(3rd Cir. 1977), cert, denied, 438 U.S. 915 (1978) . 17, 18, 24

EEOC v. Local 638.. . Local 28 of the Sheet Metal 
Workers’ International Association, 421 F. Supp.
603 (S.D.N.Y. 1975), ajf’d and modified in part,
532 F.2d 821 (2d Cir. 1976), laterproc., 565 F.2d 
31 (2d Cir. 1977)......................................................  4,18

iii



IV

EEOC v. Local 638.. . Local 28 of Sheet Metal 
Workers, 753 F.2d 1172 (2d Cir.), cert, granted,
106 S. Ct. 58 ( 1985).................................................. 3,5,10,

27, 28, 29
Firefighters Institute for Racial Equality v. City of St.

Louis, 616 F.2d 350 (8th Cir. 1980), cert, denied,
452 U.S. 938 (1981 ).................................................  16

Firefighters Local Union No. 1784 v. Stotts, 104 S. Ct.
2576 ( 1984)............................................................... 5,28

Fullilove v. Klutznick, 448 U.S. 448 (1980 ) ................  17
General Electric Co. v. Gilbert, 429 U.S. 125 ( 1976)... 25
Grann v. City of Madison, 738 F.2d 786 (7th Cir.

1983), cert, denied, 105 S. Ct. 296 ( 1984)..............  28
Griggs v. Duke Power Co., 401 U.S. 424 (1971).........  16
Guardians Association of the New York City Police 

Department, Inc. v. Civil Service Commission of the 
City o f New York, 630 F.2d 79 (2d Cir. 1980), cert.
denied, 452 U.S. 940 (1981).............................. ...... 27

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 ( 1977).....................................  14,15

Kromnick v. School District o f Philadelphia, 739 F.2d 
894 (3d Cir. 1984), cert, denied. 105 S. Ct. 782
(1985)......................................................... .............. 28

Louisiana v. United States, 380 U.S. 145 ( 1965).......  7
McDaniel v. Barresi, 402 U.S. 39 ( 1971)....................  17
Morrow v. Crisler, 3 Fair Empl. Prac. Cas. (BNA)

1162 (S.D. Miss. 1971), afif’d, 479 F.2d 960 (5th 
Cir. 1973), rev’d, 491 F.2d 1053 (5th Cir.) (en
banc), cert, denied, 419 U.S. 895 ( 1974)................  8, 9, 15

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala.
1972), aff’d, 493 F.2d 614 (5th Cir. 1974).............  9, 17, 18, 27

North Haven Board of Education v. Bell 456 U.S. 512
( 1982)................................................. ...................... 24

Paradise v. Prescott, 767 F.2d 1514(11th Cir. 1985), 
petition for cert, filed, 54 U.S.L.W. 3424 (U.S. Dec.
10, 1985) (No. 85-999)...........................................  17,28

Regents of the University of California v. Bakke, 438
U.S. 265 ( 1978)........... .'...........................................  17

Rios v. Enterprise Association Steamfitters Local 638,
501 F.2d 622 (2d Cir. 1974)....................................  17

Page



V

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert.
denied, 105 S. Ct. 2357 ( 1985)................................  27

Sims v. Sheet Metal Workers, Local 65, 353 F. Supp.
22 (N.D. Ohio 1972), ajf’d, 489 F.2d 1023 (6th
Cir. 1973)..................................................................  24

State Commission for Human Rights v. Farrell, 43 
Misc. 2d 958, 252 N.Y.S.2d 649 (Sup. Ct. New
York Co. 1964).........................................................  3

State Commission for Human Rights v. Farrell, 47 
Misc. 2d 244, 262 N.Y.S.2d 526 (Sup. Ct. New 
York Co.), aff’d, 24 A.D.2d 128, 264 N.Y.S.2d 489
(1st Dep’t 1965).......................................................  3

State Commission for Human Rights v. Farrell, 52 
Misc. 2d 936, 277 N.Y.S.2d 287 (Sup. Ct. New 
York Co.), ajf’d, 27 A.D.2d 327, 278 N.Y.2d 982
(1st Dep’t 1967).......................................................  3

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971).....................................................  17

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982).. 16, 27
Thorn v. Richardson, 4 Fair Empl. Prac. Cas. ( BNA)

299 (W.D. Wash. 1971)..........................................  24
Turner v. Orr, 759 F.2d 817 ( 11th Cir. 1985),petition 

for cert, filed, 54 U.S.L.W. 3086 (U.S. July 31,
1985) (No, 85-177).................................................  17,28

United Jewish Organizations of Williamsburgh v.
Carey, 430 U.S. 144 (1977)....................................  17

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2d Cir. 1971)..........................................................  13

United States v. Bricklayers, Local 1, 5 Fair Empl.
Prac. Cas. (BNA) 863 (W.D. Tenn. 1973)............  24

United States v. Central Motor Lines, Inc., 325 F.
Supp. 478 ( W.D.N.C. 1970)...................................  24

United States v. City o f Alexandria, 16 Fair Empl.
Prac. Cas. (BNA) 930 ( E.D. La. 1977), rev’d, 614
F.2d 1358 (5th Cir. 1980)....................................... 17,25,26

United States v. City of Buffalo, 457 F. Supp. 612 
(W.D.N.Y. 1978), modified and ajf’d, 633 F.2d 
643 (2d Cir. 1980)....................................................  11,12,18,27

Page



VI

United States v. City of Buffalo, 609 F. Supp. 1252 
( W.D.N.Y.), aff’d, No. 85-6212, (2d Cir. Dec. 19,
1985), petition for cert, filed sub nom. Afro- 
American Police Association, Inc. v. United States,
—U.S.L.W.— (U.S. Dec. 24, 1985) (No. 85-
1085).......................................................................... 12,14,18

19,28
United States v. City o f Chicago, 411 F. Supp. 218 

(N.D. 111. 1976), aff’d in part, rev’d in part, 549
F.2d 415 (7th Cir. 1977)..........................................  18,27

United States v. City of Chicago, 663 F.2d 1354 (7th
Cir. 1981) (en banc)................................................  16,17

United States v. Dothard, 373 F. Supp. 504 (M.D.
Ala. 1974)....................................................................  10,15

United States v. Enterprise Association Local 638,
337 F. Supp. 217 (S.D.N.Y. 1972) ..... ................... 22

United States v. Frazer, 317 F. Supp. 1079 (M.D.
Ala. 1970).................................................................  9

United States v. IBEW, Local 212, 5 Fair Empl. Prac.
Cas. (BNA) 469 (S.D. Ohio 1972), aff’d, 472 F.2d
634 (6th Cir. 1973)...... .............................................  24

United States v. Ironworkers Local 86, 315 F. Supp.
1202 ( W.D. Wash. 1970), aff’d, 443 F.2d 544 (9th
Cir.), cert, denied, 404 U.S. 984 (1971)..................  17, 18,20

22, 24
United States v. International Union of Elevator 

Constructors, Local 5, 538 F.2d 1012 (3d Cir.
1976).......................................................................... 24

United States v. Lee Way Motor Freight, Inc., 625
F.2d 918 (10th Cir. 1979)..........................................  17

United States v. Masonry Contractors Association of
Memphis, Inc., 497 F.2d 871 (6th Cir. 1974)..........  17

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 ( 1969).......... ",............. '..............  17

United States v. Wood, Wire & Metal Lathers Inter­
national Union, Local 46, 341 F. Supp. 694 
(S.D.N.Y. 1972), aff’d, 471 F.2d 408 (2d Cir.),
cert, denied, 412 U.S. 939 (1973).............................. 24

United Steelworkers of America v. Weber, 443 U.S.
193 (1979)............ .................................................... 19,20,25,26

Page



Van Aken v. Young, 750 F.2d 43 (6th Cir. 1984).......  28
Vanguards of Cleveland v. City’ of Cleveland, 753 F.2d 

479 (6th Cir.), cert, granted sub nom. Local Num­
ber 93 v. City of Cleveland, 106 S. Ct. 59 ( 1985)....  2, 12, 27,

28, 29
Vogler v. McCarty, Inc., 1 Fair Empl. Prac. Cas.

(BNA) 197 (E.D. La. 1967), ajf’d sub nom. Heat 
and Frost Insulators v. Vogler, 407 F.2d 1047 (5th
Cir. 1969)........................................................... .'.....  24

Williams v. City of New Orleans, 543 F. Supp. 662 
(E.D. La.), rev’d, 694 F.2d 987 (5th Cir. 1982),
rev’d, 729 F.2d 1554 (5th Cir. 1984) (enbanc).... . 18,26,27

Wygant v. Jackson Bd. o f Education, 146 F.2d 1152 
(6th Cir. 1984), cert, granted, 105 S. Ct. 2015 
( 1985).......................................................................  28

Statutes

Title VII of the Civil Rights Act of 1964, Pub. L. No.
88-352, 78 Stat. 241, (July 2, 1964), codified as 
amended at 42 U.S.C. § 2000e et. seq. ( 1982):

42 U.S.C. § 2000e-2(h)........................................  passim
42 U.S.C. § 2000e-5(g)........................................  passim

Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, 86 Stat. 103...........................................  20

M iscellaneous  
118 Cong. Rec. ( 1972):

1662.......................................................................  21
1664 ....................................................................  21
1665 ....................................................................  22
1665-71..................................................................  22
1671-75..................................................................  22
1675 ..................................................................... 22
1676 ....................................................................  21,23
4918.......................................................................  23

vii

Page



Page

viii

Legislative History 1972: Subcommittee on Labor of 
the Senate Committee on Labor and Public Wel­
fare, Legislative History o f the Equal Employment 
Opportunity Act o f 1972:

1017........................................................................  21
1046........................................................................  21
1047-63........................................................    22
1048........................................................................  22
1063-70................................................    22
1071 ...................................................................... 22
1072 .....................................................................  21
1074-75...................................................................  23
1715........................................................................  23
1716-17...................................................................  23
1844........................................................................  23
1848........................    23
1902........................................................................  23



CONSENT OF PARTIES

Petitioners and Respondents have consented to the filing of 
this brief and their letters of consent have been filed with the 
Clerk of the Court.

INTEREST OF AMICI

The Lawyers’ Committee for Civil Rights Under Law 
(“Lawyers’ Committee” ) is a nationwide civil rights organiza­
tion that was formed in 1963 by leaders of the American Bar, at 
the request of President Kennedy, to provide legal representa­
tion to blacks who were being deprived of their civil rights. The 
national office of the Lawyers’ Committee and its local offices 
have represented the interests of blacks, Hispanics and women 
in hundreds of class actions relating to employment dis­
crimination, voting rights, equalization of municipal services 
and school desegregation. Over a thousand members of the 
private bar, including former Attorneys General, former presi­
dents of the American Bar Association and other leading 
lawyers, have assisted it in such efforts.

The National Association for the Advancement of Colored 
People is a New York nonprofit membership corporation. Its 
principal aims and objectives include promoting equality of 
rights and eradicating caste or race prejudice among the citizens 
of the United States and securing for them increased opportu­
nities for employment according to their ability.

The American Civil Liberties Union is a nationwide, 
nonpartisan organization of over 250,000 members dedicated 
to protecting the fundamental rights of the people of the United 
States.

The National Black Police Association (“NBPA” ) is a 
nationwide organization comprised of nearly 100 local black 
police associations representing 720,000 black police officers 
throughout the United States. Among the purposes of the 
NBPA is the elimination of discrimination in public safety



2

departments, particularly in employment with its concomitant 
effect of improving the delivery of public safety services to all 
members of the community.

Amici have a direct interest in the long-established prin­
ciple that Federal courts have wide discretion in fashioning 
remedies for violations of Title VII and may impose classwide 
numerical relief where necessary. Without such relief in 
appropriate cases, we and our clients will be impeded—perhaps 
totally precluded—in our efforts to vindicate the civil rights of 
minority groups that have historically been victimized by 
unlawful discrimination.

STATEMENT OF THE CASES
1. Local 93

On October 23, 1980, the Vanguards of Cleveland (“the 
Vanguards” ), minority firefighters employed by the City of 
Cleveland, filed a class action complaint in the United States 
District Court for the Northern District of Ohio alleging 
discrimination by the City in the hiring, promotion and assign­
ment of minority firefighters in violation of the Thirteenth and 
Fourteenth Amendments, Title VII of the Civil Rights Act of 
1964 and 42 U.S.C. §§ 1981 and 1983.

The parties then entered into settlement negotiations, and 
during the negotiations, Local 93 of the International Associ­
ation of Firefighters (“Local 93” ) intervened.

The Vanguards and the City filed a proposed consent 
decree on November 2, 1981. The court held evidentiary 
hearings on January 7-8 and April 27-28, 1982, to consider 
Local 93’s objections to the proposed decree.

On November 12, 1982, the magistrate reported that a 
tentative agreement had been reached by the three parties. The 
agreement, which contained promotional goals for minority 
firefighters, was later rejected by the membership of Local 93.

The Vanguards and the City then submitted another 
proposed consent decree that was substantially the same as the



3

plan negotiated by the leaders of Local 93 but rejected by the 
Local 93 membership. Local 93 opposed court approval of the 
decree.

The district court adopted the proposed consent decree on 
January 31, 1983. The court found that the evidence “revealed 
a historical pattern and practice of racial discrimination in 
promotions in the City of Cleveland’s Fire Department”. The 
court concluded that the affirmative action plan incorporated in 
the proposed consent decree was a reasonable remedy in light 
of that discrimination and adopted the consent decree as a fair, 
reasonable and adequate resolution of the claims.

The Sixth Circuit, after reviewing the district court’s find­
ings, held that the district court did not abuse its discretion in 
approving the consent decree, affirmed the district court’s order 
and denied Local 93’s request for a rehearing en banc.

2. Local 28

The Department of Justice instituted this action in the 
United States District Court for the Southern District of New 
York in 1971 against Local 28 and its Joint Apprenticeship 
Committee (“JAC”) under Title VII of the Civil Rights Act of 
1964 to enjoin a pattern and practice of discrimination against 
nonwhites.1 Shortly thereafter the EEOC was substituted as 
plaintiff, the City of New York intervened as a plaintiff and the 
New York State Division of Human Rights (“State” ), initially 
named a third-party defendant, realigned itself with the EEOC 
and the City.

After a three week trial in 1975, Judge Henry F. Werker 
found that Local 28 and the JAC had purposely discriminated 
against nonwhites in violation of Title VII.

1 Local 28 and its JAC had a long history of involvement in employment 
discrimination litigation prior to the commencement of this action in 1971. 
See State Commission for Human Rights v. Farrell, 43 Misc. 2d 958, 252 
N.Y.S.2d 649 (Sup. Ct. New York Co. 1964); State Commission for Human 
Rights v. Farrell, 47 Misc. 2d 244, 262 N.Y.S.2d 526 (Sup. Ct. New York 
Co.), aff’d, 24 A.D.2d 128, 264 N.Y.S.2d 489 ( 1st Dept. 1965); State 
Commission for Human Rights v. Farrell, 52 Misc.2d 936, 277 N.Y.S.2d 287 
(Sup. Ct. New York Co.), aff’d, 27 A.D.2d 327, 278 N.Y.2d 982 ( 1st Dept. 
1967).



4

In July 1975, the court entered an order and judgment 
(“O&J” ) and appointed an administrator to propose and 
implement an affirmative action plan (“AAP” ). The Second 
Circuit affirmed Judge Werker’s finding that Local 28 and the 
JAC intentionally violated Title VII, but reversed two provi­
sions of the O&J and the AAP. 532 F.2d 821, 829-33 (2d Cir. 
1976).

Judge Werker then adopted, and the Second Circuit 
affirmed, a revised AAP and Order (“RAAPO”) that estab­
lished a nonwhite membership goal of 29% to be achieved by 
July 1, 1982, and ordered Local 28 and the JAC to develop the 
apprenticeship program, to increase and maintain nonwhite 
enrollment, to maintain detailed records regarding union em­
ployment practices and to submit periodic reports summarizing 
those records. 565 F.2d 31, 33-36 (2d Cir. 1977).

A. First Contempt Proceeding

On April 16, 1982, the City and State moved to hold Local 
28 and the JAC in contempt for violating the district court’s 
orders by failing to take the required steps to meet the 29% 
membership goal by July 1, 1982.

In August 1982, Judge Werker, after studying voluminous 
evidence, concluded that Local 28 and the JAC had “failed to 
comply with RAAPO . . . almost from its date of entry” and 
held Local 28 and the JAC in civil contempt. Local 28’s 
contravention of court orders included: underutilization of the 
apprenticeship program, refusal to conduct a general publicity 
campaign, adoption of an older workers’ job protection provi­
sion, issuance of unauthorized work permits to white workers 
from sister locals and failure to maintain and submit records as 
required by RAAPO and the EEOC. The court concluded: “I 
am convinced that the collective effect of these violations has 
been to thwart the achievement of the 29% goal of nonwhite 
membership in Local 28 established by the court in 1975. . . .  I 
have no other recourse but to hold the defendants in civil 
contempt of court.” Judge Werker imposed a $150,000 fine to 
be placed in a training fund.



5

B. Second Contempt Proceeding

On April 11, 1983, the City brought a second contempt 
proceeding, this time before the administrator, charging Local 
28 and the JAC with further violations of the O&J, RAAPO and 
orders of the administrator. The administrator, after a hearing, 
found that Local 28 failed to provide records required by 
RAAPO in a timely fashion, that Local 28 and the JAC failed to 
provide accurate data and that Local 28 failed to serve RAAPO 
on the contractors who hired Local 28’s members. He recom­
mended that defendants again be held in civil contempt.

Judge Werker adopted the administrator’s recommenda­
tion that Local 28 and the JAC be held in civil contempt and in 
September 1983 Judge Werker adopted an amended AAP and 
Order (“AAAPO”), that made six important changes in 
RAAPO. Among other changes, AAAPO required that one 
nonwhite apprentice be indentured for every white apprentice 
and that contractors employ one apprentice for every four 
journeymen employed; it also established a 29.32% nonwhite 
membership goal to be reached by July 31,1987.

The Second Circuit affirmed all contempt relief ordered 
against Local 28 and the JAC and rejected defendants’ argu­
ments that the affirmative race-conscious relief contained in 
AAAPO was prohibited by Title VII, the Constitution or this 
Court’s decision in Firefighters Local Union No. 1784 v. Stotts, 
104 S.Ct. 2576 (1984). However, the court carefully reviewed 
AAAPO to ensure that the relief granted was warranted by the 
factual findings of the district court. The Court affirmed 
AAAPO but eliminated the intermediate one-to-one appren­
ticeship ratio. 753 F.2d 1172, 1 183-89 (2d Cir. 1985).

SUMMARY OF ARGUMENT

Title VII was enacted to halt discriminatory employment 
practices and to eradicate the present and future effects of past 
discrimination. To achieve those goals, the courts were given 
wide discretion and authority under section 706(g), 42 U.S.C. 
§ 2000e-5(g), to order effective relief.



6

Since the enactment of Title VII the Federal courts have 
adjudicated thousands of employment discrimination cases. In 
a small number of those cases the courts, after carefully 
reviewing the evidence presented, determined that a classwide 
numerical remedy was the only effective and practical remedy 
sufficient to achieve the goals of Title VII. Every circuit has 
reviewed the award of such relief in either a litigated decree or 
a consent decree and every circuit has approved it.

In awarding or reviewing the imposition of numerical 
remedies, the courts have taken great care to evaluate the 
remedy awarded in light of the purpose and duration of the 
goal and its effect on nonminorities. Numerical goals counter­
balance deeply entrenched favoritism toward nonminorities 
and foster inclusion of minorities in workforces from which they 
had been excluded. When properly utilized and carefully 
tailored, numerical goals do not result in invidious “reverse 
discrimination” but simply and fairly bring nonminority ex­
pectations into line with what would obtain had there been no 
historical unlawful discrimination against minorities.

Nothing in the plain language of the statute or in the 
legislative history of Title VII limits a court’s choice of remedies 
to correct a violation of Title VII to “make-whole” relief for 
identifiable victims of discrimination. As the courts that dealt 
with employment discrimination cases for over two decades 
recognized, racial discrimination is by its nature a class wrong 
and though it is often impossible to identify individual victims, 
many actual victims exist.

The elimination of classwide numerical relief as a possible 
remedy would prevent the courts from effectuating the goals of 
Title VII in the most egregious cases of racial discrimination. 
Such a result would emasculate Title VII and effectively erase 
more than twenty years of civil rights progress through the legal 
system.



7

ARGUMENT

I. CLASSWIDE RACE-CONSCIOUS NUMERICAL RE­
LIEF IS A PRACTICAL NECESSITY; IT IS SOME­
TIMES THE ONLY REMEDY THAT CAN EFFEC­
TUATE THE CRITICAL POLICY UNDERLYING 
TITLE VII.
The central objective of Title VII is to “eliminate the 

discriminatory effects of the past as well as bar like dis­
crimination in the future.” Louisiana v. United States, 380 U.S. 
145, 154 ( 1965). The courts, in a continuing effort effectively to 
promote that policy, have come to the realization that section 
706(g) cannot be interpreted, consistent with that objective, to 
eliminate a court’s discretion under Title VII to order numerical 
relief as the remedy in cases where such relief is necessary.

The failure of other remedies to achieve elimination of 
“the last vestiges” of discrimination, Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 418 ( 1975), illustrates the direct conflict 
between the position of petitioners and the Solicitor General on 
the one hand, and the policies underlying Title VII on the other.

A. It Would Be Impossible Effectively To Enforce Title 
VII Without Classwide Numerical Relief In Appropri­
ate Cases.

Numerical relief is not required, nor should it be, in every 
case in which violations of Title VII are found. There have 
been thousands of employment discrimination cases litigated 
since the enactment of Title VII; yet courts have found it 
necessary to impose numerical goals in fewer than 100 of those 
cases.2 Nevertheless, courts in every circuit have encountered 
cases where the purpose of Title VII simply could not be 
effectuated without the affirmance or imposition of classwide 
numerical relief. In those cases an injunction reiterating Title 
VII’s prohibition against discrimination or individual make- 
whole relief would be useless and would result in endless 
enforcement litigation. A Federal court must have the dis­

2 That number is derived from reported litigated decrees.



8

cretion to tailor relief that it determines is necessary and that 
will be effective in the specific situation before it.

1. Ingrained Patterns o f Racial Discrimination
Courts have justified the imposition of numerical relief in 

several types of situations. In many of the cases where 
numerical relief has been imposed, discriminatory practices 
were particularly long-standing or egregious and resulted in 
total or near total exclusion of minorities. In many instances 
numerical relief was ordered only after injunctive or other relief 
failed to eradicate the unlawful discrimination.

In 1974, the Fifth Circuit acknowledged the shortcomings 
of relief that allowed the actor who committed the dis­
criminatory practices to “self-correct” its own unlawful behav­
ior. Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en 
banc), cert, denied, 419 U.S. 895 ( 1974).

In Morrow, the district court found that the Mississippi 
Highway Patrol had engaged in unlawful discrimination in the 
employment of patrol officers. Specifically, the court found that 
while 36.7% of the population of the State of Mississippi was 
black, the Mississippi Highway Patrol had never employed a 
black officer. Of the 27 bureaus within the Department of 
Public Safety, only two had any black employees and these 
were low level jobs. Of the Department’s 743 employees, only 
17 were black. The court declined to order affirmative numer­
ical hiring goals or preferences and instead entered a decree 
enjoining the Mississippi Highway Patrol from future unlawful 
discrimination and requiring the Patrol actively to recruit black 
patrol officers. 3 Fair Empl. Prac. Cas. (BNA) 1162 (S.D. 
Miss. 1971). A Fifth Circuit panel affirmed:

“Time may prove that the district court was wrong, 
i.e., that the relief ordered was not sufficient to 
achieve a nondiscriminatory system and eliminate the 
effects of past discrimination. But until the affirma­
tive relief ordered has been given a chance to work, 
we cannot tell.” 479 F.2d 960, 964 (5th Cir. 1973).

However, the Court en banc reversed and ordered the district 
court to “fashion an appropriate decree which will have the 
certain result of increasing the number of blacks on the



9

Highway Patrol”. 491 F.2d at 1055. The Court did so because 
there was already strong evidence that lesser measures would 
be ineffective: sixteen months after the entry of the decree, there 
had been only six black patrol officers hired during a period 
when 90 patrol officers were added to a total force of approxi­
mately 500 troopers. The en banc court instructed the district 
court to order, among other things, some form of affirmative 
hiring relief such as temporary one-to-one or one-to-two hiring 
ratios until the patrol was effectively integrated. Id. at 1056.

The Morrow court recognized that discrimination against a 
class cannot be eliminated by a mere promise to hire more 
minorities in the future. The court has an obligation to develop 
a plan that “works and works now.” Id.

The need for race-conscious numerical relief is similarly 
highlighted by a comparison of two cases arising in the Middle 
District of Alabama, NAACP v. Allen, 340 F. Supp. 703 
(M.D.Ala. 1972), tiff'd, 493 F.2d 614 (5th Cir. 1974), and 
United States v. Frazer, 317 F. Supp. 1079 (M.D.Ala. 1970). 
Allen was a private action brought to challenge the exclusion of 
blacks from employment in the Alabama Department of Public 
Safety. Frazer was an action brought by the Attorney General 
to challenge racial discrimination against blacks in the employ­
ment of persons engaged in the administration of federally 
financed grant-in-aid programs in several Alabama agencies.

In both cases, the district court, Chief Judge Johnson, 
made detailed findings of widespread discrimination against 
blacks in recruitment and hiring highlighted by defendants’ 
nearly total exclusion of blacks from employment. Allen, 340 
F. Supp. at 705; Frazer, 317 F. Supp. at 1087. Judge Johnson 
ordered relief for specific black victims and prophylactic in­
junctive relief in Frazer, 317 F. Supp. at 1090-93, and interim 
and long term numerical hiring goals in Allen, 340 F. Supp. at 
706.

Comparing progress under the Allen decree imposing 
numerical goals on the Department of Public Safety and the



10

Frazer decree simply enjoining discrimination at a number of 
Alabama agencies, Chief Judge Johnson stated:

“The Frazer decree has a much wider scope than 
the Allen order, which focuses on only one 
agency—the Alabama Department of Public Safe­
ty—but the decree in Frazer lacks the precision 
achieved in Allen through the use of hiring goals.
The contrast in results achieved to this point in the 
Allen case and the Frazer case under the two orders 
entered in those cases is striking indeed. Even 
though the agencies affected by the Frazer order and 
the Department of Public Safety draw upon the same 
pool of black applicants—that is, those who have 
been processed through the Department of Person­
nel—Allen has seen a substantial black hiring, while 
the progress under Frazer has been slow and, in 
many instances, nonexistent. . . . Today the Alabama 
Department of Public Safety has nearly one hundred 
(100) blacks employed in nonmenial jobs in both 
trooper and support positions. With its eighty (80) 
black support personnel, the Alabama Department of 
Public Safety has nearly as many black clerical 
employees as all seventy-five (75) other Alabama 
state agencies combined!

“Thus in a radical discrimination in employment 
type case, when the parties are entitled to relief by 
reason of the fact that their constitutional rights have 
been violated, this Court’s experience reflects that the 
decrees that are entered must contain hiring goals; 
otherwise effective relief will not be achieved.”

NAACP v. Allen, sub nom. United States v. Dothard, 373 F. 
Supp. 504, 506-07 (M.D. Ala. 1974) (footnotes omitted).

The facts in Local 28 also demonstrate that the mere 
recalcitrance of some employers in complying with Title VII 
could defeat the purpose of the Act if courts did not have the 
power to order the discriminating employers to seek to achieve 
numerical goals by a time certain.



11

Some employers and organizations have dug in their heels 
and refused to comply with the mandates of Title VII, even 
after a judicial finding of violation. In those cases, and in cases 
in which numerical relief is necessary as a practical matter, 
courts must have the power to order effective relief.

2. Removal of Disparate Impact o f Discriminatory Proce­
dures

Courts have also determined that interim numerical goals 
are a most effective and efficient method of removing the 
discriminatory impact of an invalid hiring or promotional test. 
Interim hiring or promotional goals eliminate the disparate 
impact of the invalid selection practice, allow employers to 
begin hiring and promoting immediately and prevent a further 
violation of Title VII.

For example, affirmative interim hiring goals were proper­
ly imposed in United States v. City of Buffalo, 457 F. Supp. 612 
( W.D.N.Y. 1978), modified and aff’d, 633 F.2d 643 (2d Cir. 
1980). In Buffalo, the district court, after a lengthy trial, found 
that the City had engaged in a pattern and practice of 
discrimination against blacks, Spanish-surnamed Americans 
and women in police and firefighter hiring. The court found, 
for example, that while 20.4% of the City’s population and 
17.5% of its labor force were black, only 2.7% of the uniformed 
police officers and 1.2% of the firefighters were black. 457 F. 
Supp. at 621. The various tests for police and firefighter hiring 
were found not to be demonstrably related to job performance. 
Id. at 622-29. At the urging of the Department of Justice, the 
court entered a final decree which included, among other 
things, interim hiring goals providing that 50% of new police 
appointments must be minorities and 25% must be women, 
such goals to remain in effect until the city developed valid 
selection procedures or until the percentage of minorities and 
women in the police department equalled the percentage of 
minorities and women in the City’s labor force. The Second 
Circuit slightly modified the decree by eliminating its long term 
aspects and affirmed the rest of the district court’s decree 
including the interim goals:

“ [T]he ratio chosen was appropriate in light of ‘the 
resentment of non-minority individuals against quotas 
of any sort and of the need of getting started to redress



12

past wrongs.’ . . . The figures chosen here were not 
unreasonably high in light of the finding of serious 
discrimination and lack of previous progress, the slow 
rate of hiring projected in the police department, and 
the likelihood that prior discrimination had dis­
couraged minorities and women from applying for 
jobs.” 633 F.2d 643, 647 (2d Cir. 1980).
Thus while all police officer candidates must still take and 

pass the non-valid test, the City’s selection of minorities, out of 
rank order if need be, to satisfy the hiring goal eliminates the 
discriminatory impact of the test. The interim hiring goals were 
particularly effective since, after almost six years, the City has 
still not developed a valid selection procedure. An order 
requiring the City to develop valid selection procedures without 
an interim hiring goal would plainly have been ineffective; it 
also would have turned the district judge into a personnel 
director, monitoring all new hiring to prevent further Title VII 
violations.3

The promotional goals contained in the consent decree in 
Local 93 are similar to the interim hiring goals ordered in 
Buffalo. The promotional goals seek to remove the dis­
proportionate impact of the City of Cleveland’s admittedly 
discriminatory promotion procedures and to begin to eradicate 
the effects of the past discrimination.

The use of interim hiring or promotional goals is particu­
larly important in public sector cases like Buffalo and Local 93. 
Without the use of some form of affirmative action there could 
be no hiring or promoting (until valid selection procedures 
could be developed). Such freezing of all appointments or 
promotions in a city’s police or fire department could present a 
hazardous situation to the citizens of the community. See, e.g.,

3 In 1985 the Department of Justice sought to modify the final decree, 
arguing that after this Court’s decision in Stotts, the interim hiring goals were 
unlawful. The district court denied the Department’s motion, rejecting the 
Department’s interpretation of Stotts and holding that Stotts was in­
applicable. 609 F. Supp. 1252 (W.D.N.Y. 1985). The Second Circuit 
affirmed. No. 85-6212, slip op. (Dec. 19, 1985), and a petition for certiorari 
was filed on December 24, 1985, sub nom. Afro-American Police Ass’n. Inc. r. 
United States.



13

Berkman v. City o f New York, 536 F. Supp. 177, 216 (E.D.N.Y. 
1982), aff’d, 705 F.2d 584 (2d Cir. 1983).

Interim hiring and promotional goals have occasioned very 
little dispute because they merely end the discriminatory impact 
of an otherwise unlawful test and are not unfair to nonmino­
rities. They do not discriminate against “better qualified” 
whites because the selection procedures they correct are not job 
related; thus “better qualified” applicants cannot be identified. 
See Commonwealth o f Pennsylvania v. Rizzo, 13 Fair Empl. 
Prac. Cas. (BNA) 1475, 1481 (E.D. Pa. 1975).

B. Victim-Specific Relief Is Often Too Narrow To Achieve 
The Goals Of Title VII.

The consensus among the courts on the appropriateness of 
classwide numerical relief is premised in large part upon 
practical considerations. It is easier to structure complete and 
fair relief in cases where identifiable individuals have been 
injured by unlawful discriminatory' employment practices. In 
such cases courts award limited relief that will make those 
specific, individual victims whole. However, many cases are not 
limited to findings of individual discrete wrongs against a few 
identifiable victims but involve long-standing and blatant dis­
crimination against all class members.

In many of the most egregious cases, it is impossible to 
point to a single individual as the victim. For example, given 
Local 28’s long history of intentional discrimination and its 
reluctance to change its discriminatory practices even after a 
Court Order, it is certain that the Union rejected many, if not 
all, black applicants for racial reasons. Further, it failed to keep 
detailed employment records as required by EEOC regulations, 
making it virtually impossible to find and identify actual victims 
of petitioners’ discrimination. The only effective remedy in such 
cases is one benefiting the class as a whole, see United States v. 
Bethlehem Steel Corp., 446 F.2d 652, 660 (2d Cir. 1971), and it 
would be unfair to preclude such relief simply because a few 
(or, indeed, many) class members may benefit even though 
they were not identifiable victims of discrimination. Petitioners 
and the Solicitor General contend that even in such a situation, 
each applicant is required to show that had his or her appli-



14

cation been considered, without regard to race, he or she would 
have been hired. That is inconsistent with the fundamental 
purpose of Title VII.

The Second Circuit in reaffirming the interim hiring goals 
ordered in Buffalo, supra, slip op. at 739, 742, stated:

“The hiring inequities were serious and were 
clearly the product of discrimination. The harmful 
effects were equally serious and broad in scope. The 
victims were not simply a small number of identi­
fiable persons who might be made whole by a 
narrowly-drawn ‘make-whole’ decree but a large 
group, most of whom could not be individually 
identified. . . . Such broad discriminatory conduct 
demands equally broad prospective equitable relief. 
Otherwise the wrong will not be remedied. ‘Make- 
whole’ relief, absent ability to identify the individual 
victims, would be pointless and ineffective.”
This Court, in International Brotherhood o f Teamsters v. 

United States, 431 U.S. 324 ( 1977), addressed the danger of 
limiting relief to an overly narrow group of plaintiffs. While 
Teamsters did not pose the exact issue now before this Court, 
the relief structured by the Court in that case illustrates a basic 
point: denying affirmative relief to non-applicants and other 
victims of discrimination who cannot readily be identified 
“could exclude from the Act’s coverage the victims of the most 
entrenched forms of discrimination. Victims of gross and 
pervasive discrimination could be denied relief precisely be­
cause the unlawful practices had been so successful as totally to 
deter job applications from members of minority groups.” Id. at 
365A 4

4 Justice Stewart, writing for this Court, cited decisions where courts have 
granted affirmative relief under the National Labor Relations Act, the model 
for Title VII’s remedial provisions, even though identification of specific 
victims was impossible. Id. at 366-67. Justice Stewart also cited several Title 
VII cases where courts of appeals had held that nonapplicants can be victims 
of unlawful discrimination entitled to make-whole relief. Id.



15

Such a limitation on the equitable powers granted to courts by 
Title VII

“would be manifestly inconsistent with the ‘historic 
purpose of equity to secure complete justice’ and with 
the duty of courts in Title VII cases ‘to render a decree 
which will so far as possible eliminate the dis­
criminatory effects of the past.’ ”

Id., citing Albemarle, 422 U.S. at 418.

C. Effective Eradication Of Past Discrimination Requires 
Integration In The Workplace.

There is more to eliminating the “last vestiges” of employ­
ment discrimination than simply enjoining discriminatory prac­
tices. The lingering reputation of the employer as a dis­
criminatory entity continues to pose a formidable obstacle to 
minorities seeking entry into the workforce. As the en banc 
Fifth Circuit pointed out a decade ago in Morrow, supra, 491 
F.2d at 1056:

“ [W]e are not sanguine enough to be of the view 
that benign recruitment programs can purge in two 
years a reputation which discriminatory practices of 
approximately 30 years have entrenched in the minds 
of [minorities] . . . .”
On the other hand, if an employer is under an obligation to 

hire or promote minorities, whether imposed by court- 
structured relief or agreed to in a consent decree, the certain 
result will be an increase in minority participation in that 
employer’s institution. As awareness of that participation 
spreads by word of mouth minorities will no longer perceive as 
futile efforts to obtain jobs in the same employment sector. See 
generally id.

Injunctions without numerical goals require tremendous 
faith in the very same employer who felt no obligation to obey 
Federal statutes outlawing employment discrimination in the 
first place. The reality is that such faith is often misplaced. See, 
e.g., Morrow, supra, 491 F.2d 1053; Dothard, supra, 373 F. 
Supp. 504.



16

II. COURTS ARE INVESTED WITH WIDE DIS­
CRETION UNDER SECTION 706(g) TO ORDER
CLASSWIDE RACE-CONSCIOUS NUMERICAL RE­
LIEF WHERE SUCH RELIEF IS NECESSARY TO
EFFECTUATE THE PURPOSES OF TITLE VII.

A. Section 706(g) o f Title VII Permits Many Forms of 
Relief Including Prospective Classwide Affirmative Re­
lief And Make-Whole Relief As Remedies For Employ­
ment Discrimination.

In enacting Title VII, Congress sought to eliminate em­
ployment discrimination and eradicate the evils of its existence. 
To do so, Congress took care to arm the courts with full 
equitable powers and therefore section 706(g) explicitly au­
thorizes courts “ to order such affirmative action . . .  as the 
court deems appropriate”. Pursuant to that broad equitable 
power courts have ordered a wide range of relief for injuries 
occasioned by discriminatory and unlawful employment prac­
tices. See, e.g., Berkman, supra, 705 F.2d at 595-96.

“Make-whole” relief is intended “to make persons whole 
for injuries suffered on account of unlawful employment dis­
crimination”. Albemarle, supra, 422 U.S. at 418. Petitioners 
and the Solicitor General concede that much.

Prospective race-conscious classwide relief, including nu­
merical remedies, on the other hand, is directed to the achieve­
ment of equality of employment opportunities and the removal 
of barriers that have operated in the past to favor an identi­
fiable group of white employees over other employees. See 
Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).

Eleven circuits have held that prospective affirmative race­
conscious relief including numerical remedies is permissible 
under Title VII5 and is sometimes the only effective and 
practical remedy.

$ E.g., Thompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 1982); 
Chisholm v. United States Postal Service, 665 F.2d 482, 499 (4th Cir. 1981); 
Firefighters Institute for Racial Equality v. City o f St. Louis, 616 F.2d 350, 364 
(8th Cir. 1980), cert, denied, 452 U.S. 938 ( 1981 ); United States v. City of



17

In addition this Court has steadfastly held in other contexts 
that prospective affirmative classwide race-conscious relief is 
not only constitutional but a most appropriate means of 
remedying the effects of past discrimination.* 6

Until recently the government consistently sought the 
imposition of classwide prospective numerical relief in cases 
where such relief was necessary to effect complete relief. See 
briefs filed by the United States at both the district and 
appellate levels in: United States v. Ironworkers Local 86, 443 
F.2d 544 ( 9th Cir.), cert denied, 404 U.S. 984 (1971); NAACP

Chicago, 663 F.2d 1354, 1362 (7th Cir. 1981) (en banc); United States v. 
City of Alexandria, 614 F.2d 1358, 1363-66 (5th Cir. 1980); United States v. 
Lee Way Motor Freight, Inc., 625 F.2d 918, 943-44 ( 10th Cir. 1979); EEOC v. 
American Telephone & Telegraph Co., 556 F.2d 167, 174-177 (3d Cir. 1977), 
cert, denied, 438 U.S. 915 (1978); Boston Chapter, NAACP, Inc. v. Beecher, 
504 F.2d 1017. 1027-28 (1st Cir. 1974), cert, denied, 421 U.S. 910 ( 1975); 
Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622, 629 (2d 
Cir. 1974); United States v. Masonry Contractors Association of Memphis, 
Inc., 497 F.2d 871, 877 (6th Cir. 1974); United States v. Ironworkers Local 
86, 443 F.2d 544, 553-54 (9th Cir.), cert, denied, 404 U.S. 984 (1971). The 
Eleventh Circuit has approved consent decrees containing numerical rem­
edies. Paradise v. Prescott, 767 F.2d 1514 (11th Cir. 1985), petition for cert, 
filed, 54 U.S.L.W. 3424 (U.S. Dec. 10, 1985) (No. 85-999); Turner v. Orr, 
759 F.2d 817 (1 1th Cir.), petition for cert, filed, 54 U.S.L.W. 3086 (U.S. July 
31, 1985) (No. 85-177), but has not yet been directly confronted with the 
validity of such relief under Title VII in a court ordered decree.

6 E.g., Fullilove v. Klutznick, 448 U.S. 448 (1980) (“ 10% set aside” of 
federal funds for minority businesses under provision of the Public Works 
Employment Act of 1977 does not violate the Civil Rights Act of 1964 or the 
Constitution); Regents o f the University of California v. Bakke, 438 U.S. 265, 
320 ( 1978) (Powell, J., joined by White, J .) and at 355-79 (Brennan, White, 
Marshall and Blackmun, JJ., concurring) (State University may permissibly 
use race as a factor in admissions); United Jewish Organizations of Williams- 
burgh v. Carey, 430 U.S. 144 ( 1977) (Reapportionment of voting districts in 
accordance with specific numerical racial goals is permissible under of the 
Voting Rights Act of 1965); McDaniel v. Barresi, 402 U.S. 39 (1971) (To 
insure integrated school system, School Board properly took racial figures into 
account in redrawing school districts); Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1 (1971) (To insure integrated school system, court 
may properly use racial ratios in both districting and faculty assignment and 
order busing); United States v. Montgomery County Board of Education, 395 
U.S. 225 (1969) (district court may properly order faculty and staff desegre­
gation pursuant to flexible racial ratios in order to insure an integrated school 
system).



18

v. Allen, supra, 493 F.2d 614; United States v. City o f Chicago, 
549 F.2d 415 (7th Cir. 1977); Local 638, supra, 532 F.2d 821; 
EEOC v. AT&T, supra, 556 F.2d 167; Buffalo, supra, 633 F.2d 
643; United States v. Ironworkers Local 86, 315 F. Supp. 1202 
(W.D. Wash. 1970); NAACP v. Allen, supra, 340 F. Supp. 703; 
United States v. City o f Chicago, 411 F. Supp. 218 (N.D. 111. 
1976); Local638, supra, 421 F. Supp. 603, EEOC v. AT&T, 419 
F. Supp. 1022 (E.D. Pa. 1976); Buffalo, supra, 457 F. Supp. 
612.

Although prospective race-conscious numerical relief is still 
necessary in certain cases, the Solicitor General now asserts that 
such relief is unlawful. Petitioners and the Solicitor General 
assert that the last sentence of section 706(g) prohibits class- 
wide prospective relief and limits a court’s power to awarding 
make-whole relief to identifiable victims of discrimination.

The Third Circuit rejected that argument in EEOC v. 
AT&T, supra, 556 F.2d 167. That court carefully analyzed the 
“make-whole” language and the legislative history of the last 
sentence of section 706(g) and held that that sentence was 
intended to strike an equitable balance between class members 
seeking relief under Title VII and employers who are subject to 
the mandates of Title VII. “ [T]he sentence does not speak at 
all to the showing that must be made by individual suitors, or 
class representatives on behalf of class members, or the EEOC 
on behalf of class members. The sentence merely preserves the 
employer’s defense that the non-hire, discharge, or non­
promotion was for cause other than discrimination.” Id. at 176. 
See also Williams v. City o f New Orleans, 729 F.2d 1554, 1558 
n.4 (5th Cir. 1984) (en banc).

By its plain language section 706(g) establishes both 
make-whole and classwide prospective relief as appropriate 
remedies for Title VII violations. As recognized by the Second 
Circuit last month:

“The source of the court’s power to issue broader 
prospective relief is found in its powers as a court of 
equity and in the broad language of § 706(g), which 
authorizes the court to ‘enjoin the respondent from 
engaging in such unlawful practice, and order such



19

affirmative action as may be appropriate, which may 
include but is not limited to, reinstatement or hiring of 
employees . . . or any other equitable relief as the 
court deemed appropriate

Buffalo, supra, slip op. at 742 (emphasis in original).

The court in Buffalo noted that section 706(g) sets out a 
nonexclusive list of possible remedies for Title VII violations 
including “reinstatement or hiring of employees.” The 
nonexclusivity of the listed remedies is apparent from Con­
gress’s insertion of the language “which may include but is not 
limited to” and the closing phrase “or any other equitable relief 
as the court deems appropriate.” Id.

The last sentence of section 706(g) does not refer to or 
affect in any way the discretionary power given to courts in the 
language of the first sentence of section 706(g). The last 
sentence addresses itself only to make-whole remedies and 
means exactly what it says—no employer will be required to 
hire, promote, reinstate or award back pay to any specified 
individual unless that individual was an actual proven victim of 
discrimination.

B. Congress Intended To Invest District Courts With Wide 
Authority To Remedy Discrimination And Endorsed The Courts’ 
Use Of Affirmative Classwide Race-Conscious Numerical Re­
medies In Appropriate Cases.

During the floor debates in both houses a common objec­
tion vigorously pressed by opponents of Title VII was that it 
would take autonomy away from employers and unions and 
force them to hire unqualified minorities in order immediately 
to integrate their work force and to maintain racial balances 
without any showing or finding that the employer or union had 
engaged in unlawful discrimination in violation of Title VII.

Of course, the bill proposed no such thing. Representative 
Celler and Senator Humphrey emphasized the fact that nothing 
in Title VII required an employer to maintain a racial balance 
among employees through the use of a quota or to hire 
unqualified minorities. As this Court noted in United Steel­
workers o f America v. Weber, 443 U.S. 193, 206 (1979), section



20

703(j) was incorporated in the Dirksen-Mansfield substitute 
bill to silence the opposition’s fears, and to make clear that Title 
VII did not require the maintenance of a racial balance through 
use of quotas.

In Weber this court recognized that 703 (j ) provides that 
nothing in Title VII requires an employer to grant preferential 
treatment to any group on account of a de facto racial 
imbalance in the employer’s work force. Weber, supra, 443 
U.S. at 206-07. The Department of Justice similarly interpreted 
703(j), drawing the following distinction:

“ [W]here there has been an intentional policy of 
unlawful racial discrimination resulting in the exclusion of 
blacks from employment opportunities, as the lower court 
found here, the limitation on preferential treatment [in 
703(j) ] has no application.” Brief of Appellee United 
States, at 49-50, filed Feb. 10, 1971, in United States v. 
Ironworkers Local 86 (No. 26048 9th Cir.) (emphasis in 
original).
The passage of the Equal Employment Opportunity Act of 

1972, which amended Title VII, emphatically establishes the 
proposition ( if it were unclear before) that classwide numerical 
relief is a lawful remedy under section 706(g) and does not 
violate section 703(j). The views of the 1972 Congress 
expressed during the debates on the amending act are of 
considerable significance.7 During the Senate’s consideration of 
the amending act, Senator Ervin, one of the original opponents 
of the Civil Rights Act, proposed two amendments to S. 2515, 
the Senate equivalent of H.R. 1746 (the amending bill). The

7 The EEOC and Department of Justice now disavow their earlier 
position that the statements of the 1972 Congress should be awarded great 
weight in interpreting section 706(g).

“The ruling in Teamsters, supra n.39, that views of a later Congress 
should be given little weight in interpreting a provision enacted in 
1964, does not pertain here, since in 1972 the remedial provision of 
Section 706(g) . . . was amended and expanded . . . .” Opp. Cert.
Brief of the Federal Respondents (Department of Justice and the 
EEOC) filed in Communications Workers of America v. EEOC, Nos. 
77-241, 242, 243 (Nov. 1977).



21

first amendment proposed to add a new section to the bill that 
would read:

“No department, agency or officer of the United 
States shall require any employer to practice dis­
crimination in the reverse by employing persons of a 
particular race, or a particular religion, or a particular 
national origin, or a particular sex in either fixed or 
variable numbers, proportions, percentages, quotas, 
goals or ranges. . . . ”

118 Cong. Rec. 1662 (1972), Legislative History o f the Equal 
Employment Opportunity Act o f 1972, reprinted in Subcomm. on 
Labor of the Senate Committee on Labor and Public Welfare 
at 1017 (hereinafter “1972 Leg. Hist.” ).

Senator Javits, speaking against the amendment, noted 
that the amendment would not only restrain a department, 
agency or officer of the United States but would also affect a 
court’s power to remedy discrimination under Title VII.8 Cong. 
Rec. at 1664, 1972 Leg. Hist, at 1046. Accord id. at 1676, 1972 
Leg. Hist, at 1072 ( remarks of Sen. Williams) (“I am desper­
ately afraid—that this amendment would strip Title VII of the 
Civil Rights Act of 1964 of all its basic fiber. It can be read to 
deprive even the courts of any power to remedy clearly proven 
cases of discrimination. ” ).

There can be no doubt that at the time of the debates on 
the Ervin Amendment Congress was fully aware that courts had 
ordered classwide race-conscious numerical relief pursuant to 
their powers under Title VII, and that the Philadelphia Plan, a 
plan developed under Executive Order 11246 requiring govern­
ment contractors to meet race-conscious numerical goals, had 
been sustained by the Third Circuit. Senator Javits during the 
floor debates described the facts and holdings of two cases and 
caused the entire text of each case to be printed in the

8“ [T]he depth of this amendment is much greater than is apparent on 
the surface because it would purport not only to inhibit in given respects the 
officers of the United States but also the courts of the United States through 
whom, once they make a finding or a judgment, the officers of the United 
States are moved.” Id. at 1664, 1972 Leg. Hist, at 1046 (Remarks of Senator 
Javits).



22

Congressional Record. Ironworkers Local 86, supra, 315 F. 
Supp. 1202, reprinted at 118 Cong. Rec. 1665-71, 1972 Leg. 
Hist, at 1063-1070, upheld the award of classwide, race­
conscious numerical relief under Title VII, and Contractors 
Association v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert, 
denied, 404 U.S. 854 ( 1971), reprinted at 118 Cong. Rec. 1671- 
75, 1972 Leg. Hist, at 1047-63, upheld the Philadelphia Plan as 
being consistent with Title VII.9 Senator Javits then summa­
rized his objections to the amendment:

“So, there I believe that the amendment does 
two things, both of which should be equally rejected.

“First, it would undercut the whole concept of 
affirmative action as developed under Executive Or­
der 11246 and thus preclude Philadelphia type plans.

“Second, the amendment, in addition to dis­
mantling the Executive order program, would de­
prive the courts of the opportunity to order affirma­
tive action under Title VII of the type which they 
have sustained in order to correct a history of unjust 
and illegal discrimination in employment and there­
by further dismantle the effort to correct these in­
justices.” Id. at 1665, 1972 Leg. Hist, at 1048.

9 Senator Javits also referred to United States v. Enterprise Association 
Steamfitters Local 638, 337 F. Supp. 217 (S.D.N.Y. 1972 ), “ I am told, and 1 
believe the information to be reliable, that under the decision made last week 
by Judge Bonsai in New York, in the Steamfitters case, an affirmative order 
was actually entered requiring a union local to take in a given number of 
minority group apprentices.” Id. at 1665, 1972 Leg. Hist, at 1048. Senator 
Javits also described two cases involving consent decrees negotiated by the 
Justice Department:

“In one case, part of the decree required that 166 Negroes and 
Puerto Ricans be given preference—in filling future vacancies for which they 
were qualified.

“ In the other case in Kansas, the company agreed to make a good faith 
effort to hire from three minority groups for 20 percent of the clerical positions 
to be filled in the next three years.

“This amendment would make it impossible for the Justice Department 
to obtain such decrees in the future.” Id. at 1675, 1972 Leg. Hist, at 1071.



23

The second amendment proposed by Senator Ervin sought 
to apply section 703(j) to the executive, thus, as Senator Javits 
noted, “ [making] unlawful any affirmative action plan like the 
so-called Philadelphia Plan”. Id. at 4918, 1972 Leg. Hist, at 
1715.

The Senate rejected both amendments by two-to-one 
margins. Id. at 1676, 4918, 1972 Leg. Hist, at 1074-75, 1716- 
17.

A section-by-section analysis of the final version of H R. 
1746, the amending bill, submitted by the Conference Com­
mittee of the House and Senate, provides:

“In any area where the new law does not address 
itself, or in any areas where a specific contrary 
intention is not indicated, it was assumed that the 
present case law as developed by the courts would 
continue to govern the applicability and construction 
of Title VII.”

1972 Leg. Hist, at 1844. While the 1964 legislative history was 
somewhat cloudy, the 1972 amendments to Title VII and 
section 706(g)10 emphasize Congress’s intention to allow the 
courts wide discretion in fashioning effective remedies, in­
cluding numerical goals, for employment discrimination.

“The provisions of this subsection [706(g)] are 
intended to give the courts wide discretion in ex­
ercising their equitable powers to fashion the most 
complete relief possible.” 1972 Leg. Hist, at 1848.

10 Title VII was extended to cover public employers and section 706(g) 
was amended to include the italicized words:

“ If the court finds that the respondent has intentionally 
engaged in or is intentionally engaging in an unlawful employ­
ment practice charged in the complaint, the court may enjoin the 
respondent from engaging in such unlawful employment practice, 
and order such affirmative action as may be appropriate, which 
may include, but is not limited to, reinstatement or hiring of 
employees, with or without back pay . . ., or any other equitable 
relief as the Court deems appropriate. Back pay liability shall not 
accrue from a date more than two years prior to the filing of a 
charge with the Commission . . . . ”

1972 Leg. Hist, at 1902.



2 4

Prior to the enactment of the 1972 amendments, numerical 
goals or other group relief had been ordered in at least nine 
Title VII cases,11 including Ironworkers Local 86, supra, printed 
in the Congressional Record by Senator Javits. The courts had 
clearly decided that Title VII did not prohibit classwide numer­
ical remedies. Thus, Congress’s rejection of the Ervin amend­
ment was an unambiguous endorsement of the judicial inter­
pretation of the broad scope of section 706(g) remedial powers 
conferred by the 1964 Act, including the power to order 
classwide numerical relief. See, e.g., United States v. Inter­
national Union of Elevator Constructors, Local 5, 538 F.2d 
1012, 1019-20 (3d Cir. 1976); EEOC v. AT&T, supra, 556 F.2d 
at 177 (“ [T]he solid rejection of the Ervin Amendment 
confirmed the prior understanding by Congress that an affirma­
tive action quota remedy in favor of a class is permissible.” ).

The Department of Justice and the EEOC, initially and 
throughout the 1970s, consistently interpreted section 706(g) as 
providing the Federal courts wide discretion in formulating 
relief, including numerical remedies, for Title VII violations. 
See, e.g., briefs submitted by the United States in United States 
v. International Union of Elevator Constructors, Local Union 
No. 5, supra; EEOC v. AT&T, supra. That interpretation 
should be accorded deference. North Haven Board of Educa­
tion v. Bell, 456 U.S. 512, 522 n. 12 (1982).

The Solicitor General’s new “interpretation” is not entitled 
to any deference, however, because it is not contemporaneous

11 Vogler v. McCarty, Inc., 1 Fair Empl. Prac. Cas. (BNA) 197, 200 
(E.D. La. 1967), a ff’d sub. nom. Heat and Frost Insulators v. Vogler, 407 F.2d 
1047, 1054 ( 5th Cir. 1969); United States v. Ironworkers Local 86, supra, 315 
F. Supp. at 1247-52; United States v. Central Motor Lines, Inc., 325 F. Supp. 
478, 479 (W.D. N.C. 1970); Thorn v. Richardson, 4 Fair Empl. Prac. Cas. 
(BNA) 299, 303 (W.D. Wash. 1971); Buckner v. Goodyear Tire and Rubber 
Co., 339 F. Supp. 1108, 1124 (N.D. Ala. 1972), aff’d, 476 F.2d 1287 (5thCir. 
1973); United States v. Wood, Wire & Metal Lathers International Union, 
Local 46, 341 F. Supp. 694, 698 (S.D.N.Y. 1972), aff’d, 471 F.2d 408 (2d 
Cir.), cert denied, 412 U.S. 939 ( 1973); United. States v. IBEW, Local 212, 5 
Fair Empl. Prac. Cas. (BNA) 469, 470, 478 (S.D. Ohio 1972), aff’d, 472 F.2d 
634 (6th Cir. 1973); United States v. Bricklayers, Local I, 5 Fair Empl. Prac. 
Cas. (BNA) 863, 881-82 (W.D. Term. 1973); Sims v. Sheet Metal Workers, 
Local 65, 353 F. Supp. 22 (N.D. Ohio 1972), a ff’d, 489 F.2d 1023 (6th Cir. 
1973).



25

with the enactment of the statute or its amendment. Cf 
General Electric Co. v. Gilbert, 429 U.S. 125, 140-43 ( 1976); 
California Hospital Association v. Henning, 770 F.2d 856, 859 
(9th Cir. 1985).

III. FEDERAL COL RTS HAVE AWARDED OR AP­
PROVED NUMERICAL RELIEF ONLY AFTER A 
CAREFUL EXAMINATION OF THE NEED FOR THE 
RELIEF AND THE EFFECT SUCH RELIEF WOULD 
HAVE ON NONMINORITIES.
The Federal courts have taken great care in shaping relief 

to fit the specific situation presented. The courts have not 
lightly and freely imposed or approved affirmative numerical 
relief. Rather, the courts have limited and tailored affirmative 
relief to meet the specific needs of each case while taking care to 
limit and reduce the effects of such relief on nonminorities. 
There is no specific standard governing the imposition of 
numerical relief because the relief ordered in any particular 
Title VII case must be unique and individual to the specific facts 
of that case. Nevertheless, certain factors useful in assessing the 
advisability of affirmative relief have been developed.

The factors most commonly considered by courts were 
articulated by this Court in Weber, supra, 443 U.S. 193. This 
Court, while declining to “define in detail the line of demarca­
tion between permissible and impermissible affirmative action 
plans”, nevertheless examined the purpose and duration of 
Kaiser’s affirmative action plan and its effect on third parties 
before determining that the “plan falls on the permissible side 
of the line.” Id. at 208.

The courts’ responsible use of discretion and careful adher­
ence to this Court’s guidance in Weber is exemplified by two 
cases in the Fifth Circuit. In United States v. City o f Alexan­
dria, 614 F.2d 1358 (5th Cir. 1980), the Fifth Circuit used the 
same factors that were discussed in Weber to review de novo 
the proposed settlement between the Department of Justice and 
the City of Alexandria, which the district court had declined to 
approve, because it contained affirmative hiring relief for 
women and blacks in the police and fire departments. Id. at



2 6

1361. The Fifth Circuit determined that the proposed consent 
decree was appropriate given the presence of severe statistical 
imbalances. The court noted that the goals were temporary, 
did not bar the advancement of white males and did not require 
defendants to consider unqualified women and blacks for 
vacancies. The court concluded that “the goals will thus serve 
to prevent those responsible for personnel decisions from 
automatically choosing a white male when there is a qualified 
black or female. This attempt to break down traditional 
patterns which foreclose opportunities to blacks and women 
was the motivation behind Title VII.” Id. at 1366 (citations 
omitted).

Accordingly, the court reversed the district court’s refusal 
to enter the consent decree and remanded, instructing the 
district court to enter the decree. Id. at 1367.

In Williams v. City o f New Orleans, 543 F. Supp. 662 (E.D. 
La. 1982), the district court, after a four day fairness hearing, 
declined to approve the proposed consent decree unless the 
one-to-one promotion goal was deleted. The trial court deter­
mined that the goal exceeded the court’s remedial objectives 
and seriously jeopardized the career interests of nonminorities. 
A three-judge panel of the court of appeals concluded that the 
trial court had abused its discretion in conditioning its approval 
of the proposed consent decree on the deletion of the promotion 
goal and remanded the case instructing the court to sign the 
decree. 694 F.2d 987 (5th Cir. 1982).

On rehearing en banc, the Fifth Circuit found that the 
district court, properly following the Weber guidelines, did not 
abuse its discretion in finding that the “one-to-one promotion 
ratio was overbroad and unreasonable in light of the severe and 
longlasting effect on the rights of women, Hispanics and non- 
Hispanic whites.” 729 F.2d 1554, 1561 (5th Cir. 1984) {en 
banc). The panel emphasized:

“The ideal goal in this type case is to provide a 
suitable remedy for the group who has suffered, but 
at the least expense to others. . . . [W]e do not 
modify our previously expressed view that temporary 
hiring goals are ordinarily reasonable. . . . ‘Title VII



27

implicitly recognizes that there may be cases calling 
for one remedy and not another, and—owing to the 
structure of the federal judiciary—these choices are, 
of course, left in the first instance to the district 
courts.’” Id. at 1564 (citations omitted).

Those cases are neither an aberration nor a signal of a 
recent judicial shift. The history of judicially-imposed and 
judicially-approved affirmative relief in this country over the 
past two decades amply demonstrates judicial caution and 
selectivity.12

Similarly, the relief imposed in Local 28 and approved in 
Local 93 was carefully formulated and analyzed by the district 
courts and was scrutinized on review by the courts of appeal. In 
both cases the relief presently at issue before this Court was 
found to be necessary and appropriate relief in light of the facts 
of each case. In neither case did the courts find that the rights 
of nonminorities were unnecessarily trammeled.

12 For example, in Guardians Association of the New York City Police 
Department, Inc. v. Civil Service Commission of the City o f New York, 630 
F.2d 79 (2d Cir. 1980), cert, denied, 452 U.S. 940 ( 1981 ), the Second Circuit 
reviewed the record and the district court’s findings and determined that they 
were insufficient to support long-term or interim affirmative hiring goals but 
found that an interim compliance goal was permissible. In United States v. 
City of Buffalo, supra, 633 F.2d 643, the Second Circuit determined that the 
record did not support imposition of a long term affirmative goal but 
approved as appropriate an interim affirmative hiring goal. In Segar v. Smith, 
738 F.2d 1249 ( D C. Cir. 1984), cert, denied, 105 S.Ct. 2357 ( 1985), the 
District of Columbia Circuit vacated the district court’s imposition of 
promotional goals and timetables because “strict goals and timetables should 
not be imposed when alternative equally effective methods could . . . supplant 
resort to a quota.” Accord Thompson v. Sawyer, supra, 678 F.2d at 294; United 
States v. City of Chicago, supra, 549 F.2d at 437; NAACP v. Allen, supra, 493 
F.2d at 621. (Numerical goals were imposed reluctantly by the trial courts in 
these cases after non-numerical relief proved ineffective. In each case the 
affirmative relief imposed was affirmed by the appellate court.)



2 8

IV. S T O T T S  DOES NOT PROHIBIT PROSPECTIVE
RACE- AND GENDER-CONSCIOUS RELIEF UNDER
TITLE VII.
We agree with the appellate courts that have uniformly 

rejected the government’s argument and have held that Stotts 
did not overrule, sub silentio, and in dictum, nearly twenty years 
of Title VII law without discussing or even acknowledging the 
competing public policies implicated in this issue and in the 
array of precedential decisions.

Petitioners and the Solicitor General have read too much 
into Stotts. The courts of appeals have not interpreted the 
Stotts decision as limiting the remedial arsenal of section 
706(g) to make-whole relief for identifiable victims of dis­
crimination.13 Not one has interpreted it as a bar to all 
classwide race-conscious remedies whether ordered after litiga­
tion or entered pursuant to a consent decree. Rather the courts 
view Stotts as the proper application of make-whole relief upon 
the facts of that case. We suggest this Court should agree.

13 Deveraux v. Geary, 765 F.2d 268 ( 1st Cir. 1985); Buffalo, supra, No. 
85-6212, (2d Cir. Dec. 19, 1985); Local 638, supra, 753 F.2d 1172 (2d Cir.), 
cert, granted, 106 S. Ct. 58 ( 1985); Commonwealth of Pennsylvania v. Local 
542, Operating Engineers, 38 Fair Empl. Prac. Cas. (BNA) 673 (3d Cir. 
1985); Kromnick v. School District of Philadelphia, 739 F.2d 894 (3d Cir.
1984) , cert, denied, 105 S.Ct. 782 (1985); Wygant v. Jackson Bd. of 
Education, 746 F.2d 1152 (6th Cir. 1984), cert, granted, 105 S.Ct. 2015 
( 1985); Vanguards, supra, 753 F.2d 479 (6th Cir.), cert, granted, 106 S.Ct. 59 
( 1985); Van Aken v. Young, 750 F.2d 43 (6t.h Cir. 1984); Britton v. South 
Bend Community School Corporation, 775 F.2d 794 (7th Cir. 1985); Grann v. 
City of Madison, 738 F.2d 786 (7th Cir. 1983), cert, denied, 105 S.Ct. 296 
( 1984); Diaz v. American Telephone & Telegraph, 752 F.2d 1356 (9th Cir.
1985) ; Paradise v. Prescott, supra, 767 F.2d 1514; Turner v. Orr, supra, 759 
F.2d 817.



29

CONCLUSION

The judgments of the courts of appeals in both Local 93 
and Local 28 should be affirmed.

Respectfully submitted,

Harold R. T yler 
James Robertson 
N orman Redlich 

Trustees
W illiam L. Robinson 
R ichard T. Seymour 

Lawyers’ Committee for 
C ivil R ights under Law 

Suite 400,
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

E. R ichard Larson 
Burt N euborne 

American C ivil Liberties 
Union F oundation 

132 West 43rd Street 
New York, N.Y. 10036 
(212) 944-980

Paul C. Saunders 
Counsel of Record

Betsy A. Breese 
Stacey E. Elias

Cravath, Sw aine& Moore 
One Chase Manhattan Plaza 
57th Floor
New York, N.Y. 10005 
(212) 422-3000

G rover G. Hankins 
Charles E. Carter

N ational Association for 
T he A dvancement of 
Colored P eople 

186 Remsen Street 
Brooklyn, N.Y. 11201 
(718) 858-0800

January 24, 1986. Attorneys for Amici-Curiae