Firefighters Local Union No. 1784 v. Stotts Motion for Leave to File a Brief as Amici Curiae in Support of Petitioners

    Nos. 82-206 and 82-229

In The

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1982

FIREFIGHTERS LOCAL UNION NO. 1784,

Petitioners,

v.

STOTTS,

Respondents.

CERTIFICATE OF SERVICE

I hereby certify that on August 19, 1983, I served three copies of the motion for 
leave to file a brief as amici curiae and brief for the American Federation of Labor and 
Congress of Industrial Organizations and the Public Employee Department, AFL-CIO as 
amici curiae in support of petitioners on the following by prepaid first class mail:

THOMAS M. DANIEL 
Cox & Fields 
707 Adams Avenue 
Memphis, Tennessee 38105

JACK GREENBERG
10 Columbus Circle 
Suite 2030
New York, New York 10019

BARRY GOLDSTEIN
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

ALLEN S. BLAIR
Hanover, Walsh, Jalenak & Blair 
219 Adams Avenue Building 
Memphis, Tennessee 38103

CLIFFORD D. PIERCE, JR.
City Attorney 
125 N. Main
Memphis, Tennessee 38103

Respectfully submitted,

4SU
LAURENCE GOLD 

815 16th Street, N.W. 
Washington, D.C. 20006 
202/637-5390

Counsel for Amici Curiae



Nos. 82-206 and 82-229

In T he

Bnpnm  (tart rtf %  llttttrfc ^tatrs
October T erm , 1983

Firefighters Local Union No. 1784,
Petitioner,v. ’

Carl W. Stotts, et a l .,
Respondents.

Mem phis F ire Departm ent, et a l .,
Petitioners,v.

Carl W. S totts, et a l .,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

MOTION FOR LEAVE TO FILE A  BRIEF AS 
AMICI CURIAE AND BRIEF FOR THE 

AMERICAN FEDERATION OF LABOR AND CONGRESS 
OF INDUSTRIAL ORGANIZATIONS AND THE 
PUBLIC EMPLOYEE DEPARTMENT, AFL-CIO,

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

J. Albert W oll 
815 15th Street 
Washington, D.C. 20005

Michael H. Gottesman 
Robert M. Weinberg 

1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036

Laurence Gold 
(Counsel of Record)
815 16th Street, N.W. 
Washington, D.C. 20006 
(202) 637-5390

W ilson  - Epes Prin tin g  C o . .  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



In The

(Eiturt at tip TUnxtab l^tatr#
October Term, 1983

Nos. 82-206 and 82-229

Firefighters Local Union No. 1784,
Petitioner,

v.

Carl W. Stotts, et al.,
Respondents.

Memphis Fire Department, et al.,
Petitioners,

v.

Carl W. Stotts, et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

MOTION BY THE AMERICAN FEDERATION OF LABOR 
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS 

■ AND THE PUBLIC EMPLOYEE DEPARTMENT, 
AFL-CIO, FOR LEAVE TO FILE A BRIEF 

AS AMICI CURIAE IN SUPPORT OF PETITIONERS



2

The American Federal of Labor and Congress of In­
dustrial Organizations (AFL-CIO) and the Public Em­
ployee Department, AFL-CIO (FED), respectfully move 
this Court for leave to file the accompanying brief as 
amici curiae in support of the position of the petitioners 
in these consolidated cases.

INTEREST OF THE. AMICI CURIAE AND ISSUES
TO BE COVERED IN THE BRIEF AMICI CURIAE

The AFL-CIO is a federation of 97 national and in­
ternational unions having a total membership of approx­
imately 13,500,000 working men and women. The PED 
is composed of 30 of the AFL-CIO’s affiliated unions hav­
ing a total membership of 2,000,000 public employees.

The AFL-CIO and PED have consistently championed 
the rights of victims of discrimination to be made whole 
for the injuries caused thereby. The AFL-CIO’s position 
in that respect is reflected by its joint brief with the 
United Steelworkers of American in Franks v. Bowman 
Transportation Co., 424 U.S. 747, advocating the result 
that this Court reached therein. But that is not the relief 
that has been awarded below. Instead, the lower courts 
have imposed a quota under which employees of one race 
who have committed no wrong and whose seniority en­
titles them to their jobs will be displaced by employees of 
another race who are not the victims of any discrimina­
tion and whose seniority does not entitle them to those 
jobs.

The AFL-CIO has also consistently championed the 
rights of private parties to adopt, if they choose to do 
so, racial quotas in employment in appropriate circum­
stances. The AFL-CIO’s position in that respect is re­
flected by its joint brief with the United Steelworkers of 
America in Steelworkers v. Weber, 443 U.S. 193, advocat­
ing the result that this Court reached therein. But the 
instant case involves no privately adopted quotas, but 
rather quotas imposed by courts as ostensible remedies



3

for discrimination allegedly violative of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e and 42 
U.S.C. §§ 1981 and 1983.

The legal principles espoused by the courts below would, 
if embraced by this Court, jeopardize collectively- 
bargained seniority systems throughout America. The 
interest of movants in protecting those systems prompts 
the filing of this brief to address the fundamental issue 
whether the courts’ remedial power includes displacing, 
on the basis of race, innocent employees from the jobs 
their seniority has gained them, in order to make room 
for junior persons of another race who have not been 
the victims of the discrimination- alleged in the lawsuit.

CONCLUSION

For the above-stated reasons, this motion for leave to 
file an amicus curiae brief should be granted.

Respectfully submitted,

J. Albert W oll 
815 15th Street 
Washington, D.C. 20005

Michael H. Gottesman 
Robert M. Weinberg

1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036

Laurence Gold 
(Counsel of Record)
815 16th Street, N.W. 
Washington, D.C. 20006 
(202) 637-5390



INTRODUCTION AND SUMMARY OF
ARGUMENT ...................... .......................................... 1

ARGUMENT ................................ ......................... .............  6

CONCLUSION......................................................................  30

APPENDIX: Statements of Proponents of the Bill
That Became the Civil Rights Act of 
1964 Respecting the Availability of 
Quota Remedies under Title V I I .........  la

TABLE OF CONTENTS
Page



11

Cases:
TABLE OF AUTHORITIES

Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ......... .................................. .................. ....10,18,28

American Tobacco Co. v. Patterson, 456 U.S. 53
(1982) ______________ ________________ ________ _ 27,29

Arizona Governing Committee v. N orris,------ U.S.
— , 51 L.W. 5243 (July 6, 1983) ........................  8

Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252 „ ___________________ ____ _ 9

Asbestos Workers v. Vogler, 407 F.2d 1047 (5th
Cir. 1969) ____________________ ________________  24

Atlantic Maintenance Co., 134 NLRB 1328 (1961),
enforced, 305 F.2d 604 (3d Cir. 1962)........ ....... 18

Bob Jones University v. United States, ——  U.S.
------ , 51 L.W. 4593 (May 24, 1983) ....................  21

Bush v. Lucas,-------U.S. -—-—, 51 L.W. 4572 (June
13, 1983) _________ _______________________ .-..5,16-17

Castaneda v. Partita, 430 U.S. 482________________ 8
Castro v. Beecher, 334 F. Supp. 930 (D.Mass.

1971) ................ .................... ................. ................. -  25
Connecticut v. Teal, 457 U.S. 440 (1982) .............. 8
Crowell v. Benson, 385 U.S. 2 2 ......................... .........  30
Darigold Dairy Products Co., 194 NLRB 701

(1971) ........ ........................ ........ .......................... . 18
Dayton Board of Education v. Brinkman, 433 U.S.

406 .......................... - ........- ................. ......- ........ 6,12
Ford Motor Co. v. EEOC, ——  U .S .------ , 50 L.W.

4937 (June 28, 1982) ___ ______ ________10, 12, 13-14,18
Fox v. United States Dept, of Housing, 680 F.2d

315 (3rd Cir. 1982)___ ______ _____________ ___  2
Franks v. Bowman Transportation Co., 424 U.S.

747 _____________________ _________10-12, 18, 20, 28, 29
Fullilove v. Klutznick, 448 U.S. 448____ _________  29
General Building Contractors Association v. Penn­

sylvania, ------ U .S.------- , 50 L.W. 4975 (June 29,
1982) ...................................................... ...................  9

W.R. Grace and Co. v. Local Union 759, Rubber
Workers, — — U .S.------ , 51 L.W. 4643 (May 31,
1983) 2



I l l

Great Lakes Dredge Dock Co., 169 NLRB 631
(1968) ................... ..................... ......-.......................  18

! I edit Co. v. Bowles, 321 U.S. 321 _____________ __ 6
Herman & MacLean v. Huddeston, ——  U .S .------ ,

51 LW 4099 (Jan. 24, 1983)................................ . 25
Hills v. Gautreaux, 425 U.S. 284................................  6
The Hughes Corp., 135 NLRB 122, (1962) ........... 18
Immigration and Naturalization Service v. Chadha,

------ U.S. — , 51 L.W. 4907 (June 28, 1983).... 25
Johnson v. Railway Express Agency, 421 U.S. 454.. 15
Los Angeles Dept, of Water & Power v. Manhart,

435 U.S. 702 ............ .................................... - ......... 7-8
Merrill Lynch, Pierce, Fenner & Smith v. Curran,

456 U.S. 353 (1982) ............. .............. ......... ........ 25
Milliken v. Bradley, 418 U.S. 717 (Milliken I ) .......  6, 7, 9
Milliken v. Bradley, 433 U.S. 267 (Milliken II).... 5, 6, 7,

10-12
Nevada Consolidated Copper Corp., 26 NLRB 1182

(1940) ........................................................... ............  18
Pasadena City Bd. of Education v. Spangler, 427

U.S. 424 .... ..................... .......................................... 6,12
Personnel Administrator of Mass v. Feeney, 422

U.S. 256 ............. ................. ....................... ............... 9
Porter Co. v. NLRB, 397 U.S. 99 (1970) .............. 27-28
Shelley v. Kraemer, 334 U.S. 1 ----------------- ----------- 8, 29
Steelworkers v. Weber, 443 U.S. 193------------ ----- 14
Swann v. Board of Education, 402 U.S. 1 ..... ..........6, 9,12
Teamsters v. United States, 431 U.S. 324 ........... 10-14, 18,

27, 28
United States v. Armour & Co., 402 U.S. 673

(1971) ........ ...................................... .......................  1
United States v. Ironworkers Local 86, 443 F.2d 

544 (9th Cir.), cert, denied, 404 U.S. 984
(1971) --- ------- ----------- --------- ------- ------------------  24-25

United States v. Security Industrial Bank, ------
U.S. —  51 L.W. 4007 (November 30, 1982).... 30

United States v. Swift & Co., 286 U.S. 106------------ 3

TABLE OF AUTHORITIES— Continued
Page



IV

University of California Regents v. Bakke, 438

TABLE OF AUTHORITIES— Continued
Page

U.S. 265 ......................................................................  8, 29
Washington v. Davis, 426 U.S. 229 (1976) ..... ........  9
Zipes v. Trans World Airlines, Inc., 455 U.S. 385.... 2

Constitution and Statutes:
United States Constitution

First Amendment............................ ............ ........ 16
Fourteenth Amendment .................... ................ passim

Civil Rights Acts of 1866 and 1871
42 U.S.C. § 1981 ................................................. passim
42 U.S.C. § 1983 ................................................. passim
42 U.S.C. § 1988 ................................................ 5,15-16

Civil Rights Act of 1964, Title V I I ............................ passim
§ 703 ................................................. ......................  7, 19
§ 703(h) .............................     26-29
§ 703(j) ..................................................................  25
§ 706(g) ................................................................ passim

Equal Employment Opportunity Act o f 1972 ........ 19-26
National Labor Relations Act o f 1964

§ 8(a) (3) ............................ ............ ........ ............  18
§ 8 (d) ......................................................................  27-28
§ 10(c) .................................................................18,27-28

Miscellaneous:
Congressional Record, Vol. 110 ................................. 19, 20
Development in the Law— Title VII, 84 Harv. L.

Rev. 1109 (1971) ................ ............ ......................... 25
H.R. Rep. 914, 88th Cong., 1st Sess. (1963) .......... 18
Legislative History of the Equal Employment Op­

portunity Act o f 1972, Subcommittee on Labor of 
the Senate Committee on Labor and Public Wel­
fare (Nov. 1972) ..................................................20,22-26



BRIEF FOR THE, AMERICAN FEDERATION OF LABOR 
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS 

AND THE PUBLIC EMPLOYEE: DEPARTMENT, 
AFL-CIQ, AS AMICI CURIAE 

IN SUPPORT OF PETITIONERS

This brief amici curiae is filed contingent on the 
granting o f the foregoing motion for  leave to file said 
brief. The interest o f the amici curiae in this case is 
set forth in that motion.

INTRODUCTION AND SUMMARY OF ARGUMENT
A t the threshold o f this case are two issues o f more 

than passing significance : first, whether a court may, in 
the absence of any adjudication o f liability, modify a con­
sent decree by adding a type o f relief— here an injunctive 
order that layoffs be governed by racial quotas rather 
than by the seniority rules that otherwise would have 
obtained— to which the defendants (collectively, the em­
ployer) have never agreed; second, whether the plaintiffs 
and the employer, again in the absence o f any adjudica­
tion of liability, may abrogate contractual obligations that 
the employer owes to the union representing the em­
ployer’s employees by agreeing, without the union’s con­
sent, to entry o f a consent decree that purports to over­
ride the union’s contractual rights. W e address these 
issues only in the margin because we understand the first 
is being addressed by petitioners, who are better posi­
tioned than we to elucidate the meaning o f the consent 
decree, and because the second turns on a state law ques­
tion not decided below and thus is not ripe for  decision 
in this Court.1

1 Under the “ four-corners of the decree” test of United States v. 
Armour & Co., 402 U.S. 673, 681-682 (1971), it cannot be found 
that the parties in this case actually agreed to the use of a racial 
quota for determining the order of layoffs. The courts below did 
not purport to find such an agreement, but instead concluded that 
the district court had power to modify the consent decree to achieve 
that result. Nor did the courts below determine in light of changed 
circumstances to reopen a case purportedly settled by a consent



2

W e concentrate instead on a third issue respecting the 
propriety of the district court’s order as modified: 
whether the order in its substance exceeds the proper 
bounds o f an equitable decree. In examining that issue, 
we treat the order here as i f  that order had been

decree, to adjudicate the original allegations of wrongdoing, and if 
violations were found to modify the decree to< impose additional rem­
edies. In this instance, rather, despite the defendants’ express dis­
claimer in the consent decree that they had committed any viola­
tions, and without any adjudication that they had, the courts below 
held that the modification providing additional relief to' the plain­
tiffs could be made. That action would be permissible, we submit, 
only if the original consent decree could be construed within its 
“ four corners” to contain the defendants’ consent to the district 
court making so sweeping a modification of the decree as entered. 
See Fox v. United States Dept, of Housing, 680 F.2d 315 (3rd Cir.
1982) . We believe that the original consent decree1 is not susceptible 
to that construction.

If the original consent decree were susceptible to that construc­
tion, it would follow that the employer had “consented” to the judi­
cial elimination pro tanto of whatever seniority rights were enjoyed 
by employees under the collective agreement between the union and 
the employer. The court below did not decide, but merely assumed 
arguendo, that under Tennessee law the collective agreement is 
legally enforceable. (Union Pet. App. A 38 and n.20). If  the col­
lective agreement created legally enforceable seniority rights, the 
question would be posed whether a district court is empowered, 
with the “consent”  of the employer and the plaintiffs, but without 
an adjudication that the employer has violated any law, to enter an 
order that abrogates contractual seniority rights enjoyed by em­
ployees pursuant to a collective agreement negotiated by their union 
(neither the affected employees nor their union having consented to 
the abrogation). That issue was debated by the. litigants, but not 
reached or decided by this Court, in Zipes v. Trans World Airlines, 
Inc., 455 U.S. 385. Our position on that, issue1—that A and B cannot 
contract away C’s rights, nor “consent” to a court’s abrogating those 
rights—is fully stated in the brief we filed in Zipes. Brief for the 
AFL-CIO in No. 80-951. See also Brief for Petitioner in No. 80-951, 
pp. 35-37; Reply Brief for Petitioner in No. 80-951, pp. 1-6. This 
Court’s later decision in W.R. Grace and Co. v. Local Union 759, 
Rubber Workers, ------  U.S. ------ , 51 L.W. 4643, 4647 (May 31,
1983) , holding that a concilitation agreement between an employer 
and the EEOC cannot override contractual seniority rights absent 
the union’s consent, lends additional support to1 the thesis stated in 
these briefs.



3

founded on an adjudication of liability, rather than on 
consent by the plaintiffs and the employer. Our ap­
proach avoids the question whether a court has less power 
to enter a decree drawn on racial grounds when its 
remedial authority is founded, as here, solely on the sup­
posed consent of the parties to the litigation, than when 
its remedial authority is founded on adjudicated viola­
tions. Our approach assumes, of course, that courts do 
not, by reason of a consent, have more power to grant 
this remedy than the judiciary possesses upon an adjudi­
cation that violations have occurred. That assumption, we 
believe, cannot be seriously disputed: whatever might be 
the power of a court to approve a consent decree inflict­
ing injury upon the defendant alone that the court could 
not have inflicted upon an unwilling defendant fol­
lowing adjudication of liability (cf. United States v. 
Swift & Co., 286 U.S. 106, 116-117), it must surely be 
the law that a remedy that a court is powerless to enter 
against a defendant because its impact upon innocent 
third parties renders that remedy inequitable is one that 
a court has no greater power to enter simply because the 
defendant is prepared to consent to the infliction of that 
inequity upon others.

On these premises, the issue that we address here may 
be stated as follows: whether in an employment dis­
crimination case a court may order that employees of 
one race who have done no wrong be deprived of their 
jobs to open those positions to persons of another race 
who were not the victims of any unlawful employment 
practice of the defendants?  In more concrete terms, the 2

2 There' is no dispute in this case that (a.) but for the> order at 
issue here the layoffs in question would have been made on the 
basis of seniority, and (b) the beneficiaries of the order at issue 
include persons who were not victims of the discrimination alleged 
in the complaint. The district court’s order requires that seniority 
not be applied “where it will decrease the percentage of black lieu­
tenants, drivers, inspectors and privates that are presently employed 
in the Memphis Fire Department.” Union’s Pet. App. A78. Thus, 
white employees, who by seniority would not have been laid off, were



4

question is whether, consistent with the principles of 
equity, the provisions of the applicable federal statutes, 
and the constitutional limits on race-conscious action by 
government, a court order may force employees to yield 
their jobs, solely because of their race, to persons of an­
other race who have not been deprived of those* jobs by 
reason of discrimination. This question is one of the ut­
most sensitivity and has never before been addressed by 
the Court.

The answer to this question, we believe, emerges from 
several distinct considerations, all of which point to the 
conclusion that the* courts are without authority to rem­
edy a violation by adopting quotas that, on the basis of 
race, displace innocent employees of one race from their 
jobs to make room for persons of another race who were 
not victims of that violation. As we discuss more fully 
herein :

1. The commands alleged to have been violated here—  
Title VII, 42 U.S.C. § 1981, and the Fourteenth Amend­
ment— all protect individuals from discrimination; none 
directs a racial balance in employment, The judicial au­
thority to* remedy violations of those commands is coin­
cident with the* protections conferred: victims of such 
violations are to be made whole; no remedies are* appro­
priate for nonvictims.

2. The quota remedy entered below does not conform 
to this remedial scheme : that remedy extends affirmative

as a result of the* court’s order laid off in lieu of black employees, 
so that the percentage of blacks in the Department co-uld be main­
tained. There is no allegation or evidence that the blacks who* were 
able to avoid being laid off as a result of the* order were themselves 
victims of prior hiring discrimination by the* Department. This is 
not to say that there might not be among those who benefit from 
the quota some who* coincidentally were, victims of prior discrimina­
tion, but only that the* class of beneficiaries of the quotas is not 
defined as, nor confined to, prior victims, nor is its effect—even 
when coincidentally benefiting a prior victim—to restore that* victim 
to his or her rightful place.



relief to persons who were not victims of the discrimina­
tion alleged and who thus are, without the benefit of any 
court order, already in “ the position they would have 
occupied in the absence of [defendants’ discriminatory] 
conduct.” Milliken v. Bradley, 433 U.S. 267, 280.

3. A concern for the impact of remedies upon innocent 
third persons is deeply embedded in the historic power of 
equity. Whatever may be the appropriate equitable bal­
ance when a remedy is sought to make whole the victims 
of discrimination at the expense of innocent employees, 
there is simply no competition of legitimate interests that 
could justify the displacement of innocent employees, on 
the basis of race, for the benefit of nonvictims.

4. Congress decided in enacting Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e, to disapprove 
quota remedies. That decision establishes the unavail­
ability of the remedy in question under Title VII and 
also points to the same conclusion with respect, to 
§ 1981 and the Fourteenth Amendment (here invoked 
through 42 U.S.C. § 1983). The remedial provision 
implementing §§ 1981 and 1983-—42 U.S.C. § 1988— di­
rects that remedies thereunder be fashioned “ in con­
formity with the laws of the United States, so far as 
such laws are suitable to carry the same1 into effect.” 
As complete make;-whole relief can be provided to vic­
tims without a quota remedy, it is “ suitable” to respect 
the congressional judgment against quota remedies. In­
deed, even on the hypothesis that courts have power to 
go beyond § 1988 in fashioning remedies for Fourteenth 
Amendment violations, the proper course is to respect 
the congressional judgment where, as here, that judg­
ment does not preclude the provision of complete make-
whole relief. Bush v. L ucas,------ U.S. — — 51 L.W.
4752 (June 13, 1983).

5. Congress also decided in enacting Title VII to pro­
tect bona fide seniority systems. That decision precludes 
the issuance under Title VII of remedies conflicting 
with seniority systems when such remedies are not



6

needed to restore victims to their rightful place. And 
for the reason just stated, that congressional judgment 
is entitled to respect in the fashioning of remedies under 
§§ 1981, 1983, and the Fourteenth Amendment.

6. It is a difficult and unsettled question whether 
a federal court violates the Constitution by ordering a 
quota remedy such as that at issue here. This Court’s 
settled rule to avoid, where “ fairly possible,” resolving 
difficult constitutional questions is additional reason, if 
any be needed, why the quota remedy entered below 
should be foresworn as lacking equity.

ARGUMENT
1. The point of departure for analyzing the propriety 

of a court order displacing employees of one race who 
have done no wrong from their jobs to make room for 
persons of another race who have not been the victims 
of any discrimination by the defendant is the nature of 
the violation for which the order in question purports 
to be the remedy. The remedial power of a court sit­
ting in equity is not unlimited. Swann v. Board of Edu­
cation, 402 U.S. 1, 3; Hills v. Gautreaux, 425 U.S. 284, 
294; Pasadena City Bd. of Education v. Spangler, 427 
U.S. 424, 434. Cf. Hecht v. Bowles, 321 U.S. 321, 329- 
330. Foremost among the applicable limitations is that 
“ the scope of the remedy is determined by the nature 
and extent of the . . . violation.” Milliken v. Bradley, 
418 U.S. 717, 744 (Milliken I) ; see also, e.g., Swann, 
402 U.S. at 16; Milliken v. Bradley, 433 U.S. 267, 280 
(Milliken II). Given that limitation, the task of the 
equity court, “ once a . . . violation is found, . . . is . . . 
to tailor ‘the scope1 of the remedy’ to fit ‘the nature and 
extent of the . violation.’ ”  Hills, 425 U.S. at 294; 
see also Dayton Board of Education v. Brinkman, 433 
U.S. 406, 420. And this Court has defined with pre­
cision the way in which the remedy must relate to 
the violation: “the decree must indeed be remedial in 
nature, that is, it must be designed as nearly as possi­
ble ‘to restore the victims of discriminatory conduct to



7

the position they would have occupied in the absence of 
such conduct.’ ” Milliken II, 433 U.S. at 280; see also 
MiUiken 1 at 746.

Thus, in assessing whether a remedial decree has ex­
ceeded proper limits, it is critical to know what is the 
violation being remedied, who are the victims, and how 
has the violation affected the victims. Here, as stated 
supra at pp. 2-3, we proceed by assuming arguendo that 
the plaintiffs could have proven the violations alleged in 
their complaints. Broadly read, the complaints allege 
that the defendants, who together constitute the em­
ployer in this case, violated Title YII of the Civil Rights 
Act of 1964 (42 U.S.C. § 2000e), the Civil Rights Act of 
1866 (42 U.S.C. § 1981), and the Fourteenth Amendment 
(invoked pursuant to 42 U.S.C. § 1983), by discriminat­
ing against blacks in hiring and in promoting. The 
complaints do not allege that all blacks employed by the 
Memphis Fire Department in fact were injured by one 
or both forms of discrimination; indeed, neither of the 
plaintiffs alleges that he personally was the victim of 
any hiring discrimination.

Each of the three provisions sued under is designed to 
protect individuals from discrimination on the basis of 
race; none is intended to mandate racial balance or the 
achievement of particular proportions of the races in a 
given workforce. In Title YII, the language of the pro­
vision defining unlawful conduct (§ 703) and of the re­
medial provision (§ 706(g)) focuses expressly on protect­
ing the “ individual” from racial, religious, sexual or na­
tional origin discrimination in employment. And this 
Court has repeatedly recognzed that focus. In Los Angeles 
Dept, of Water & Poiver v. Manhart, 435 U.S. 702, 708, 
this Court stated:

The statute’s focus on the individual is unambigu­
ous. It precludes treatment of individuals as simply 
components of a racial, religious, sexual or national 
class. . . . Even a true generalization about a class



8

is an insufficient reason for disqualifying an individ­
ual to whom the generalization does not apply.

In Connecticut v. Teal, 457 U.S. 440, 453-454, the point 
was repeated:

The principal focus of the statute is the protection 
of the individual employee, rather than the protec­
tion of the minority group as a whole. Indeed, the 
entire statute and its legislative history are replete 
with references to protection for the individual em­
ployee. See, e.g., §§ 703 (a )(1 ), (b ), (c) . . . .

And, most recently, in Arizona Governing Committee v.
Norris, ------  U.S. ------ , 51 L.W. 5243 (July 6, 1983),
this point was reiterated in each of the individual opin­
ions. Id. at 5244, 5245 (Opinion of Justice Marshall); 
5251 (Opinion of Justice Powell) ; 5252 (Opinion of Jus­
tice O'Connor).

Similarly, § 1983 and § 1981 create rights, or estab­
lish a mechanism to enforce rights, in individuals to be 
free of discrimination based on race. Section 1983 is 
designed to protect “any citizen . . .  or other person 
within the jurisdiction” ; transgressors incur liability 
“ to the party injured.” The source of the right to be 
free of racial discrimination enforceable under § 1983 is 
the Fourteenth Amendment. That Amendment, like Title 
VII, is designed at protecting individuals. As this Court 
stated in Shelley v. Kraemer, 384 U.S. 1, 22:

The rights created by the first section of the Four­
teenth Amendment are, by its terms, guaranteed to 
the individual. The rights established are personal 
rights. It is, therefore, no answer to these petitioners 
to say that the courts may also be induced to deny 
white persons rights of ownership and occupancy on 
grounds of race or color. Equal protection of the 
laws is not achieved through indiscriminate imposi­
tion of inequalities.

See also Castaneda v. Partita, 430 U.S. 482, 499-500; 
University of California Regents v. Balike, 438 U.S. 265, 
299 (Opinion of Justice Powell.)



9

And, consistent with that understanding, this Court 
repeatedly has held that the Fourteenth Amendment, 
whether sued on directly or through § 1983, does not 
prohibit official conduct simply because that conduct has 
a greater adverse effect on racial or ethnic minority 
groups than on majority groups. In Washington v. Davis, 
426 U.S. 229, 239, the Court held that “a racially 
neutral qualification for employment is [not] discrimina­
tory . . . simply because a greater proportion of Negroes 
fail to qualify than members of other racial or ethnic 
groups,” Id. at 245. “ That other Negroes also failed to 
score well would, alone, not demonstrate that [plaintiffs] 
individually were being denied equal protection of the 
laws . . Id. at 246 (emphasis added). See also, Ar­
lington Heights v. Metropolitan Housing Dev. Corp., 429 
U.S. 252, 264-265; Personnel Administrator of Mass. v. 
Feeney, 442 U.S. 256, 272.

Actions: brought under § 1983, and founded as here on 
the Fourteenth Amendment, are thus to provide “ the 
party injured” relief from purposeful discrimination by 
the state, and this Court has expressly stated that the 
Fourteenth Amendment does not require “ any particu­
lar degree of racial balance or mixing.” Swann, 402 
U.S. at 24; Milliken I, 418 U.S. at 739-741.

The same is true of § 1981. That statute too is ad­
dressed to discrimination against individuals as such. 
In General Building Contractors Association v. Pennsyl­
vania, ------  U.S. ------ , 50 L.W. 4975, 4977 (June 29,
1982), this Court held that § 1981 does not reach “prac­
tices that merely result in a disproportionate impact on 
a particular class. . .

In short, the vice of the employer’s practices in this 
case, assuming the allegations of the complaints to be 
true, is not that the employer failed to achieve a racial 
balance, but that the employer intentionally refused to 
hire or promote particular black individuals because of 
their race. The victims of that violation are those class 
members who, within the limitations period, applied for



10

and were refused hire or promotion on account of their 
race or who would have so applied but did not because 
of knowledge of the employer’s racial practices. Team­
sters v. United States, 431 U.S. 324, 357-377. And, what 
each of those victims has lost as a result of that violation 
is the wages, benefits, and seniority status that he would 
have received (and would presently enjoy) but for the 
defendants’ wrongful refusal to hire or promote him. 
These, then, are the parameters that determine the scope 
of the remedy permitted in this action.

2. It follows from what we have shown thus far that 
the individuals who have suffered discrimination by the 
defendants—the victims— are the ones entitled to be made 
whole. Individuals whose claim to an entitlement to re­
lief is that they are members of the same minority group 
as the victims, and who have not suffered from such dis­
crimination, are already in “ the position they would have 
occupied in the absence of [the defendants’ discrimina­
tory] conduct,” Milliken II, 433 U.S. at 280, and are not 
entitled to a court order that improves their position.

This limitation on equitable decrees is confirmed by 
decisions of this Court implementing Title VII. Those 
decisions are instructive with regard to §§ 1981 and 1983 
as well, for this Court has recognized that Title VII’s 
remedial provision— § 706 (g )— authorizes the courts to 
exercise “ the ‘historic power of equity.’ ” 3 In Franks v. 
Bowman Transportation Co., 424 U.S. 747, the Court 
drew the line as to the scope of permissible remedy 
between make-whole relief for “ actual victims of racial 
discrimination” (Franks, 424 U.S. at 772), which is 
permitted, indeed virtually required, and relief for non­
victims of such discrimination, which is not permitted. 
In Franks, the Court stated that the “ federal courts * &

3 Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 420-421. See 
also, Franks V. Bowman Transportation Co., 424 U.S. 747, 764, 777
& n.39; id. at 785-786, 789-790 (Opinion of Justice Powell); 
Teamsters, supra, 431 U.S. at 374-375; Ford Motor Co. v. EEOC, 
------ U .S.------- , 50 L.W. 4937, 4939 (June 28, 1982).



11

are empowered to fashion such relief as the particular 
circumstances of a case may require to effect resti­
tution, making whole insofar as possible the victims of 
racial discrimination in hiring.” 424 U.S. at 764. And 
the Court made clear that members of the plaintiff class 
in Franks who were found not to be actual victims of the 
defendant employer’s discrimination—viz., who were “ not 
in fact discriminatorily refused employment as an ORT‘ 
driver” (id. at 773 n.32)— would not be entitled to any 
equitable relief. Id. at 772-773, and n.32. Then, in 
Teamsters, the Court analyzed at length the question of 
how to determine whether a claimant for relief is an 
actual victim of the litigated violation and thus eligible 
for relief. 431 U.S. at 356-377. That lengthy discussion 
in Teamsters would have been pointless if courts were 
empowered under Title VII to provide remedies to non­
victims.4 * 6

The result in Franks and Teamsters follows from the 
general principles of equity discussed above: the victims 
of the violation are made whole for the losses they suf­
fered as a result of the violation; and the remedy is 
afforded only to those who are victims of that violation.®

4 Under Franks and Teamsters, when a class violation of hiring 
discrimination is proven, the burden of proof shifts to the defend­
ant to establish that individual members of the class who applied 
for the position or positions in question were not actually victims
of the violation. This shift in the burden of proof, far from au­
thorizing relief to nonvictims, simply determines how the court is 
to decide whether a given individual was a victim o f discrimination 
and is thus entitled to relief. Members of the class against whom 
the unlawful practice was committed— e.g. black applicants for jobs 
from an employer who has been proved to have had an across-the^ 
board practice of refusing to hire blacks—are presumed to be 
vticims, unless the defendant proves otherwise. Franks, 424 U.S. 
at 773 n.32; Teamsters, 431 U.S. at 357-362.

6 This Court’s school desegregation decisions follow precisely the 
same remedial principle: “ ‘to- restore the victims of discriminatory 
conduct to the positions they would have occupied in the absence of 
such conduct.’ ” Milliken II, 433 U.S. at 280. In school cases, the 
violation generally consists of practices intentionally maintained



12

3. In the context of competitive hiring and competitive 
promotion decisions, however, the Court has recognized 
that even a remedy designed only to make the victims of 
discrimination whole has a heavy cost: Where a court 
order confers upon the individual who was a victim of the 
employer’s wrong an improved competitive status with 
respect to promotion, or as in this case layoff, some 
employee, who was not in any respect responsible for the 
employer’s wrong, is of necessity disadvantaged. A ma­
jority of the Court in Franks determined that it is con­
sistent with equity for the innocent employee to be dis­
advantaged so that the victim can be made whole. 
Franks, 424 U.S. at 776-779; compare id. at 780-781 
(Opinion of Chief Justice Burger) and id. at 787-793 
(Opinion of Justice Powell.) But the Court has also de­
termined that the balance of equities is quite different 
when the question is whether to disadvantage the inno­
cent employee of one race in order to confer a competitive 
advantage on an individual of another race who was not 
the victim of any wrong of the employer and thus does 
not have a make-whole claim. Teamsters and Ford Motor
Co. v. EEOC, ------  U.S. - — , 50 L.W. 4937 (June 28,
1982), stand for the following proposition: it is not 
equitable for a court to direct that, on the basis of race, 
an innocent employee be deprived of his job so that he

by a school board for the purpose of segregating the races. All 
minority students subjected to such practices are victims of the 
violation. To make such victims whole may require both the 
“ dismantling” of the discriminatory practices and the affirma­
tive correction of education deficiencies which resulted from those 
practices. Milliken II, 433 U.S. at 282-283; Swann, 402 U.S. at 28, 
31-32. In that context, for example, makewvholei relief may require 
that a “ dual system” be dismantled, which may in turn require 
such actions as raceKionscious assignment policies for teachers and 
pupils alike. But, in that context, too, this Court has been careful 
to confine remedial decrees to the make^whole purpose, and has not 
permitted such decrees to be used to- achieve goals, such as racial 
balancing, beyond that purpose. Swann, 402 U.S. at 15-16, 31-32; 
Pasadena City Bd. of Education, 427 U.S. at 435-437; Dayton Board 
of Education, 433 U.S. at 419-420 (1977).



13

may be replaced by an employee who was nob the victim 
of any discrimination by the employer.

In Teamsters, the Court first made it clear that non­
victims have no entitlement to a remedy of competitive 
seniority, 431 U.S. at 367-372, and saw the judiciary’s 
task of equitable balancing as called for only with respect 
to victims:

[A]fter the victims have been identified and their 
rightful place determined, the District Court will . . . 
be faced with the delicate task of adjusting the re­
medial interests of discriminatees and the legitimate 
expectations of other employees innocent of any 
wrongdoing. [431 U.S. at 372, emphasis added].’8

In Ford Motor Co., this Court disapproved as inequi­
table a remedy that would have encouraged employers 
to give competitive seniority advantage to persons who 
claim they are victims of discrimination but whose 
claims have not yet been adjudicated:

. . . Title VII . . . permits us to consider the rights 
of “ innocent third parties.” City of Los Angeles 
Department of Water & Power v. Manhart, 435 U.S. 
702, 723 (1978). See also Teamsters v. United 
States, 432 U.S. 324, 371-376 (1977). The lower 
court’s rule places a particularly onerous burden 
on the innocent employees of an employer charged 
with discrimination. Under the court’s rule, an 
employer may cap backpay liability only by forcing 
his incumbent employees to yield seniority to a 
person who has not proven, and may never prove, 
unlawful discrimination. . .  .

The sacrifice demanded by the lower court’s rule, 
moreover, leaves the displaced workers without any 
remedy against claimants who fail to establish their 
claims. If, for example, layoffs occur while the Title 
VII suit is pending, an employer may have to fur­
lough an innocent worker indefinitely while retain-

10 Even thus limited to victims, the Court saw striking- the balance 
in Teamsters (where the innocent employees were, on layoff) as not 
foreordained by the decision in Franks. See 431 U.S. at 374-376.



14
ing a claimant who was given retroactive seniority. 
If the claimant subsequently fails to prove unlawful 
discrimination, the worker unfairly relegated to the 
unemployment lines has no redress for the wrong 
done him. We do not believe that “ ‘the large objec­
tives’ ” of Title VII, Albemarle Paper Co. v. Moody, 
422 U.S. 405, 416 (1975) (citation omitted), require 
innocent employees to carry such a heavy burden. 
[50 L.W. at 4942].

Where, as in the instant case, a court is asked to direct 
that a nonvictim of discrimination be given the job of an 
innocent employee, solely because the nonvictim is the 
same race as other persons who were actually discrimi­
nated against by the employer, there is not the competi­
tion of legitimate: interests that calls into play equitable 
discretion. To give the nonvictim the job is not to “ re­
store [him to his] rightful place” (Teamsters, 431 U.S. 
at SYS) ■—he was not wrongfully deprived of that place in 
the first instance. On the other hand, the “ innocent 
worker . . . unfairly relegated to the unemployment 
lines” as a result of such a court order would have a 
“wrong done him.” Ford Motor Co., 50 L.W. at 49427

4. There is yet another consideration that counsels 
against upholding the quota remedy entered below: the 
explicit congressional determination not to provide for 
quota remedies in Title VII cases. In enacting Title VII, 
Congress specifically addressed the question of court- 
ordered quotas and determined unequivocally not to per­
mit them. We set forth below the provisions of the stat- 7

7 Indeed, had the substance of the injunction in this case been 
instead part of a “private, voluntary, race-conscious affirmative 
action plant]” set up by an employer, or an employer and a, union, 
that plan might well be found in violation of Title VII. In Steel­
workers V. Weber, 443 U.S. 193, 208, in explaining why the plan at 
issue in that case did not violate Title! VII, the Court emphasized:

At the same time, the plan does not unnecessarily trammel 
the interests of the white employeeiS. The plan does not require 
the discharge of white workers and their replacement with new 
black hirees.



15

ute and the legislative history that manifest that deter­
mination. Before turning to that showing, however, we 
pause to discuss the significance of the determinations 
that Congress made in enacting Title VII to the remedial 
issues in this case.

As previously noted, the plaintiffs’ claims in this case 
were brought not just under Title VII but under §§ 1981, 
1983, and the Fourteenth Amendment as well. Insofar as 
the action is grounded in Title VII, the determinations 
made by Congress respecting the scope of remedies for 
violation of that statute are of course controlling; the 
courts are without power to furnish remedies for Title 
VII violations that Congress has not authorized. Those 
determinations do not, however, furnish a similarly con­
clusive answer respecting the power of courts under 
l§ 1981 and 1983; statutes that were enacted a century 
before and that contain their own remedial provision. 
See, e.g., Johnson v. Railway Express Agency, 421 U.S, 
454, 459-60. The remedial authorization furnished by 
Congress with respect to actions brought under §§ 1981 
and 1983 is contained in 42 U.S.C. § 1988, which provides 
in pertinent part:

The jurisdiction in civil and criminal matters con­
ferred on the district courts by [inter alia, §§ 1981 
and 1983] shall be exercised and enforced in con­
formity with the laws of the United States, so far as 
such laws are suitable to carry the same into effect 
. . . [Emphasis added].

This provision bespeaks a congressional intention that 
points the courts, in the circumstances of this case, to the 
explicit decisions respecting remedies made by Congress 
in such statutes as Title VII, subject to the caveat that 
those decisions may not be carried over if they would 
prevent “ suitable” relief to vindicate the wrongs made 
actionable by §i§ 1981 and 1983. Where, as here, com­
plete make-whole relief can be provided without incor­
porating a remedy disapproved by Congress, it is “ suit­
able” to abstain from the disapproved remedy.



1 6

Of course, given that § 1983 furnishes a cause of 
action to enforce what here are constitutional rights, 
it is arguable that the courts’ remedial power is not 
circumscribed by § 1988. It does not follow, however, that 
Congress’ judgments in Title VII about what remedies 
are appropriate, and what inappropriate, are to be dis­
regarded in fashioning relief for constitutional violations. 
Thus, even assuming arguendo that the federal courts 
have power in constitutional cases to enter quota reme­
dies compelling the layoff of innocent employees of one 
race to make room for nonvictims of another race, the 
congressional judgment that such remedies are inappro­
priate is entitled to weight in the courts’ determination 
whether that power should be exercised. In Bush v.
Lucas,------ U.S. -------- , 51 L.W. 4752 (June 13, 1983),
for example, where the petitioner sought “a new non- 
statutory damages remedy for federal employees whose 
First Amendment rights are violated by their superiors,” 
(id. at 4753), this Court declined to adopt this remedy, 
explaining:

Because such claims arise out of an employment rela­
tionship that is governed by comprehensive proce­
dural and substantive remedies . . .  we conclude that 
it would be inappropriate for us to supplement that 
regular scheme with a new judicial remedy. [51 
L.W. at 4753.]

This Court did not question its “power [in suits arising 
directly under the Constitution] to grant relief that is 
not expressly authorized by statute” (id. at 4754), but 
concluded that the circumstances warranted no departure 
from its predisposition that “ such power is to be exer­
cised in the light of relevant policy determinations made 
by the Congress” (id.). The Court ultimately answered 
in the negative the question “whether an elaborate re­
medial system that has been constructed step by step, 
with careful attention to conflicting policy considerations, 
should be augmented by a new judicial remedy for the 
constitutional violation at issue.” Id. at 4758.



With that preface, and with the knowledge that the 
remedy in dispute here is not necessary to make whole 
the victims of the wrong alleged,8 we turn to a demon­
stration that Congress did indeed, in enacting Title VII, 
specifically reject the concept of quota remedies.

a. The sole Title VII provision defining the remedies 
that a court may order upon finding a violation of the 
statute is § 706(g). As enacted in 1964, § 706(g) em­
powered courts, upon finding a violation, to “ enjoin the 
respondent from engaging in such unlawful employment 
practice, and order such affirmative action as may be ap­
propriate, which may include reinstatement or hiring of 
employees, with or without back pay . . .” The last sen­
tence of § 706(g), in turn, states that even where a 
court “ finds that the respondent has intentionally en­
gaged in or is intentionally engaging in an unlawful 
Title VII employment practice,”  the resulting remedial 
order may not run in favor of an individual who suf­
fered adverse employment consequences for “ any rea­
son other” than such discrimination. Senator Hum­
phrey cited this sentence during the debates as proof 
that the opponents’ charge that the bill authorized court- 
ordered quotas was incorrect (see App. p. 2a, infra). 
Certainly then the literal language of § 706(g) bars a 
remedial order that runs in favor of individuals who are 
members of a minority group but who have never suf­
fered employment discrimination at the hands of the 
respondent. A quota remedy— viz. a remedy providing 
employment benefits to members of a minority group who 
have not been shown to have suffered adverse employ­
ment consequences by reason of the respondent’s unlawful 
employment practice—therefore appears from the words 
of § 706(g) to be the very paradigm of the remedial

8 The Court; found it important in Bush that “ Congress intended 
that these; remedies [i.e. without the additional remedy sought in 
Bush] would put the; employee ‘in the same position he would have 
been in had the unjustified or erroneous personnel action not taken 
place.’ ” Id. at 4758. See also, id. at 4759 (Opinion of Justice 
Marshall).

17



18

order Congress determined should not issue in enacting 
the 1964 Civil Rights Act.

Moreover, the Court has recognized that the decisions 
under § 10(c) of the NLRA are an informative guide to 
the intent of the Congress that enacted § 706(g). Franks, 
424 U.S. at 769, 774-775 and n.34; Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 419; Teamsters, 481 U.S. at 
366-367; Ford Motor Co., 50 LW at 4939 n.8. It was 
well settled by 1964 that when an employer is found 
to have discriminated against union members in viola­
tion of § 8(a) (3) of the NLRA, the remedy provided 
under § 10(c) by the National Labor Relations Board is 
to reinstate the victims of the discrimination and award 
them backpay and rightful place seniority. In the NLRA/s 
history an employer had never been directed to give pref­
erential treatment to union members who were not vic­
tims of the violation.®

b. Title VII’s sponsors repeatedly confirmed that the 
Title does not empower the courts to issue quota remedies. 
Before the 1964 debate began, the bill’s opponents cited 
quota remedies as one of the evils that would be produced. 
H.R. Rep. 914, 88th Cong., 1st Sess. (1963) at 72. 
These opponents declared this “a not too subtle system 
of racism-in-reverse.” Id. at 73. In response to this 
charge, the principal sponsors of the bill repeatedly and 
unequivocally declared that under the bill the courts would 
be without power to order quota remedies. We quote 
these declarations in Part I of the Appendix to this brief.

The statements quoted in Part I of the Appendix— 
which explicitly articulate the courts’ want of power to 
order quota remedies— are not by any means the only 9

9 See Franks, 424 at 774-775, n.34; and see, e.g., Nevada Con­
solidated Cooper Corp., 26 NLRB 1182, 1231 (1940), enforced, 316 
U.S. 105; Darigold Dairy Products Co., 194 NLRB 701 (1971); 
Great Lakes Dredge Dock Co., 169 NLRB 631, 635 (1968); The 
Hughes Corp., 135 NLRB 1222, 1223 (1962); Atlantic Maintenance 
Co., 134 NLRB 1328, 1330 (1961), enforced, 305 F.2d 604 (3d Cir 
1962).



19

“ anti-quota” statements made by the bill’s proponents. 
In addition to the charge that the EEOC and/or courts 
would impose quota remedies, opponents charged that 
racial imbalance would be found to be a per se violation 
of Title VII, and that employers would opt for quotas 
to avoid the inference of discrimination that might 
be drawn from racial imbalance.10 In answering these 
various charges, the proponents repeatedly denied that 
Title VII would require quotas. Some of these remarks 
were clearly responding to “quota” charges other than 
that courts would order quotas; others are ambiguous 
and may well have been specifically addressed to the 
charge that courts would order quotas. But all reflect 
the mood of the 1964 Congress and thus help explain 
why § 706(g) was drafted so as not to empower the 
courts to issue quota remedies. We set forth a number 
of these statements in Part II of the Appendix to this 
brief.

In short, everything said and done in 1964 leads to 
the conclusion that Congress in enacting Title VII in­
tended to provide affirmative remedies for the victims 
of the defendants’ discrimination but not for nonvictims. 
That intent as we have shown is crystalized in positive 
statutory law in both the basic substantive provision of 
the Title*— § 703 (see1 supra at p. 8 )— and in the basic 
remedial provision— § 706 (g).

c. Nothing Congress has said or done since provides a 
basis for reading Title VII as amended differently in 
this regard from Title VII as originally passed. In 1972, 
Title VII was amended by the Equal Employment Op­
portunity Act of 1972. Section 703, which as we have 
shown, supra at p. 8, defines the practices prohibited by 
the Act as wrongs to “ individuals,” was not amended. 
Section 706 (g) was amended to add an authorization to 
grant “any other equitable relief the court deems appro-

10 See, e.g., 110 Cong. Rec. at 5092 (Sen. Hill); 7418-20 (Sen. 
Robertson); 7800, 8500-01 (Sen. Smathers); 8618 (Sen. Sparkman).



priat-e”  to the specific remedies already contained in the 
provision. The only explanation for that amendmentr— 
the Section-by-Section Analysis that was introduced in 
both houses11— indicates a single remedial abjective (118 
Cong. See. 7166, 7168) :

Section 706(g)— This subsection is similar to the 
present section 706(g) of the Act. . .

The provisions of this subsection are intended to 
give the courts wide discretion exercising their equi­
table powers to fashion the most complete relief pos­
sible. In dealing with the present section 706(g) the 
courts have stressed that the scope of relief under 
that section of the Act is intended to make the vic­
tims of unlawful discrimination whole, and that the 
attainment of this objective rests not only upon the 
elimination of the particular unlawful employment 
practice complained of, but also requires that persons 
aggrieved by the consequences and effects of the un­
lawful employment practice be, so far as possible, 
restored to a position where they would have been 
were it not for the unlawful discrimination. [Em­
phasis added].

The Congress that “added the phrase speaking to 
‘other equitable relief’ in 1 706(g) . . . indicated that 
‘rightful place’ was the intended objective of Title ¥11 
and the relief accorded thereunder.” Franks, supra, 424 
(J.S. at 764, n.21. This Section-by-Section Analysis “ is 
emphatic confirmation that federal courts are empowered 
to fashion such relief as the particular circumstances of 
a case may require to effect restitution, making whole 
insofar as possible the victims of racial discrimination 
. . Id. at 764 (emphasis added).

11 The Section-by-Section Analysis quoted in text was first sub­
mitted to the Senate by Senator Williams (the bill’s floor manager 
in the Senate) prior to adaption of the Senate bill. Senator Wil­
liams submitted it again in conjunction with the Conference Report, 
as did Rep. Perkins in the House. See Legislative History of the 
Equal Employment Opportunity Act of 1972, prepared by the Sub­
committee on Labor of the Senate Committee on Labor and Public 
Welfare (Nov. 1972), pp. xv n.3, 1769, 1773-74, 1843-44, 1848, 1856.

20



21

The! legislative history of the 1972 amendments is de­
void of a single word suggesting that the amendment to 
§ 706(g) was intended to authorize quota remedies. 
Given the explicit anti-quota decision made in 1964, and 
the retention in 1972 of the sentence in § 706 (g) that 
was the embodiment of that decision (see p. 17, supra), 
there is no conceivable warrant for construing the ad­
dition of “ other equitable relief” as an authorization of 
quota remedies.

It has been suggested by parties in other cases 112 that 
even granting that the 1964 and 1972 Congress’ legisla­
tive actions do not provide support for the proposition 
that Title VII authorizes quota remedies, the judicial 
power to order such remedies may properly be inferred 
from certain congressional refusals to act in 1972. Re­
lying on such inferences is hazardous at best. “ Ordi­
narily, and quite appropriately, courts are slow to at­
tribute significance to the failure of Congress to act on 
particular legislation.” Bob Jones University v. United
States, ------  U.S. ------ , 51 L.W. 4593, 4600 (May 24,
1983). But there is no need here to engage in the de­
bate as to the balance between the hazards and utility 
of drawing such inferences. For in this instance the con­
gressional determinations in 1972 not to amend the 1964 
Act do not in fact support the inference that the para­
doxical purpose of certain refusals to alter Title VII 
was to signal a new consensus that both victims of the 
defendant’s discrimination and nonvictims alike are to 
be entitled to affirmative relief under Title VII. A  re­
view of what happened in the House is dispositive.

The House de-bate focused on two competing bills— 
one (H.R. 1746) introduced by Rep. Augustus Hawkins 
and reported out by the House Labor Committee, and 
the other (H.R. 9247) offered by Rep. John Erlenborn

1:2 See, e.g., Brief for Respondent in Boston Firefighters Union, 
Local 718 V. Boston Chapter, NAACP, Inc., Nos. 82-185, et al. at 
pp. 48-53.



22

“ as an amendment in the nature of a substitute.” 72 
Leg. Hist. 150-151.18 The principal differences between 
the bills— and the subject of virtually all the debate—  
involved matters wholly irrelevant to the issue here (e.g., 
Should the EEOC be given “cease and desist” power? 
Should Title VII be extended to public employment?) 
Insofar as relevant here, the difference between the bills 
was that the Comittee bill proposed to transfer adminis­
tration of Executive Order 11246 from the Department 
of Labor’s Office of Federal Contract Compliance (OFCC) 
to the EEOC, while the Erlenborn bill did not. The 
Committee bill was accordingly perceived by some as 
providing the EEOC with power to order quotas, for the 
OFCC in its administration of the Executive Order had 
made it a condition to receipt of government contracts 
that the contractor adopt “goals and timetables.” The 
discussion of quotas in the House in 1972 thus centered 
on the propriety of quotas under the Executive Order. 
Rep. Erlenborn stated the theory on which quotas, al­
though properly precluded from imposition under Title 
VII, had been treated differently under the Executive 
Order:

The OFCC is an altogether different type of juris­
diction [from the EEOC]. It is not based upon con­
stitutional rights. It is not based, upon statutory 
rights.

The genesis of the power of the OFCC is the con­
tractual relationship that exists between the Federal 
Government and those with whom they contract for 
the acquisition of goods and services. In this juris­
diction the OFCC can and does go beyond those 
powers granted by the 1964 Civil Rights Act. I think 
it is important to note that the Chairman of the 
Equal Employment Opportunity Commission himself 13

13 We use “72 Leg. H ist.------ —” to refer to Legislative History
of the Equal Employment Oppotrunity Act of 1972, prepared by the 
Subcommittee on Labor of the Senate) Committee on Labor and 
Public Welfare (Nov. 1972).



23

has testified that you cannot mix these two enforce­
ment authorities. [72 Leg. Hist, at 231].

Supporters of the Committee bill did not dispute the 
theoretical basis for such a distinction, and they pro­
posed to resolve the dilemma not by leaving administra­
tion of the Executive Order with the OFCC, but by mak­
ing Title VU’s ban on quotas equally applicable to the 
Executive Order: Their solution was that coincident
with transfer to the EEOC of authority to enforce the 
Executive Order, the EEOC should be “prohibited from 
imposing or requiring a quot[a] or preferential treat­
ment.” 72 Leg. Hist, at 189. Rep. Dent, the floor man­
ager of the Committee bill, explained the reason for in­
corporating this express prohibition:

M y . . .  amendment would forbid the EEOC from im­
posing any quotas or preferential treatment of any em­
ployees in its administration of the Federal contract- 
compliance program. This responsibility, which is 
now vested in the Office of Federal Contract Com­
pliance of the Department of Labor, would be trans­
ferred by H.R. 1746 to the Commission. Such a pro­
hibition against the imposition of quotas or preferen­
tial treatment already applies to actions brought un­
der title VII. My amendment would, for the first 
time, apply these restrictions to the Federal contract- 
corn,pliance program. [72 Leg. Hist, at 190; emphasis 
added. See also id. at 199 (Rep. Perkins) ; 204, 208 
(Rep. Hawkins) ].

While there was some debate over the propriety of 
exacting quotas under the Executive Order as the price 
for receipt of government contracts (see, e.g., id., at 
202, 208-209, 222-223, 231), there was unanimity that 
quotas were not to be imposed upon employers generally 
as a matter of statutory law. Rep. Hawkins, the au­
thor of the Committee bill, declared:

[S]ome say that this bill seeks to establish quotas 
. . . Not only does Title VII prohibit this, but it es­
tablishes beyond any doubt a prohibition against any 
individual white as well as black being discriminated



24

against in employment. It only seeks to insure that 
persons will be treated on their individual merits 
and in accordance with their qualifications. [72 Leg. 
Hist, at 204; emphasis added].14 15

And Rep. Erlenborn, the author of the rival bill, cor­
rectly identified the narrow scope of the dialogue by 
pointing out that neither the Committee bill nor the 
Erlenborn substitute “ is going to repeal the prohibition 
against quotas that is in Title VII of the Civil Rights 
Act” [Id. at 261].“

14 Rep. Hawkins later repeated, during a colloquy, that Title VII 
already “prohibits the establishment of quotas.” Id. at 209.

15 In the end, the House voted to adopt the Erlenborn substitute 
(id. at 312-314). As that substitute contained no provision respect­
ing the administration of Executive1 Order 11246, the House never 
voted on the propriety of quotas under the Executive Order.

The fact that the House debate manifests the uniform under­
standing that Title VII did not permit court-ordered quotas—not a 
surprising fact in view of the definitive resolution of that contro­
versial issue just eight years earlier—precludes any notion that, 
because a handful of lower court cases purportedly authorizing 
court-ordered quotas had been decided by 1972, Congress should be 
deemed to have acted on the assumption that Title VII authorized 
such quotas.

Indeed, our research has uncovered only twoi cases decided prior 
to the completion of the 1972 consideration of Title. VII that even 
arguably approved quota remedies, and in both the approval was 
cryptic. In Asbestos Workers V. Vogler, 407 F.2d 1047 (5th Cir. 
1969), the court upheld an injunction striking down nepotism and 
prior experience as requirements for union membership and “or­
dered the development of objective mebership criteria,”  407 F.2d 
at 1051, not racial quotas or preferences, to govern future admissions 
to union membership. Pending development of such objective crite­
ria, the injunction prohibited new admissions of members (save 
identified discriminatees) and directed that during the interim 
period work referrals of existing members be made on a chrono­
logical basis, with alternating referrals of whites and blacks, id. 
In a cryptic passage near the end of its opinion, the Fifth Circuit 
explained that the temporary alternating referrals were required 
for “administrative reasons.” Id. at 1055. In United States V. Iron- 
workers Local 86, 443 F.2d 544, 553-554 (9th Cir.) cert, denied, 404 
U.S. 984 (1971), the Court, relying on Vogler, sustained an injunc-



25

While the Senate’s consideration of proposed amend­
ments was hardly more indicative of a desire to over­
turn the 1964 decision to prohibit quota remedies, we 
relegate discussion of the Senate’s consideration to the 
margin. For given the House’s unalterable opposition 
to statutorily-imposed quotas, nothing the Senate might 
have done alone could have effectuated a turnaround of 
that decision. As this Court has so recently confirmed, 
a congressional decision made by both houses and signed 
by the President may not later be overturned even by 
the positive action of one house, Immigration and Natu­
ralization Service v. Chadha, ------  U.S. -—-—, 51 L.W.
4907, 4916-18 (June 28, 1983), and a fortiori cannot be 
found inferentially to have been overturned by rejection 
of proposed amendments within one house.1'* * * * * 6

tion that contained compulsory numerical guidelines for minority 
admissions into apprentice programs, rejecting arguments that the 
injunction violated § 703(j) . The court declared that the injunction
it was affirming “did not establish a system of racial quotas or 
‘preferences’ in violation of section 703 ( j ) .” 443 F.2d at 554. Thus 
while close reading of Vogler and Ironworkers reveals that orders 
establishing racial preferences were approved, neither case pur­
ported to endorse court-ordered racial quotas in Title VII cases. 
And there was as of 1972 case law and commentary supporting the 
opposite proposition, viz., that quota, remedies are not appropriate 
under Title VII. Castro v. Beecher, 334 F. Supp. 930, 945 (D.Mass. 
1971) ; Developments in the Law— Title VII, 84 Harv. L. Rev. 1109, 
1114-16 (1971).
To say the least, there was not on. this issue in. 1972 “established 

judicial precedent” “consistently and routinely” applied as there
was in Herman & MacLean V. Huddeston, ------  U.S. ------ , 51 LW
4099, 4102 (Jan. 24, 1983); see also, Merrill Lynch, Pierce, Fenner
& Smith V. Curran, 456 U.S. 353, 379 (1982) ( “the federal courts 
routinely and consistently had recognized an implied cause of ac­
tion” ).

1,8 In the Senate, there was one proposed amendment that related 
tangentially to the issue of court-ordered quotas. Senator Ervin, in 
the course of introducing numerous amendments to prolong a fili­
buster, introduced one prohibiting any “ department, agency, or 
officer of the United States” from requiring employers to “practic[e] 
discrimination in reverse by employing persons” in percentages or



5. That the order entered below would conflict with a 
bona fide seniority system is another consideration coun­
seling against its propriety. As we show below, that 
conflict renders the remedy unavailable under Title VII.* 17 
And while that is not dispositive of the remedy’s avail­
ability under §§ 1981, 1983 and the Fourteenth Amend-

quo-tas on the basis of race, sex, religion or national origin (72 Leg. 
Hist, at 1017). This amendment, he explained, was addressed pri­
marily to the QFCC’S implementation of Executive Order 11246 to 
require government contractors to adopt quotas ( “the Philadelphia 
Plan” ), and secondarily to “ [t]he EEOC” , which “on less frequent 
Occasions, has hailed employers before its bar to practice discrimi­
nation in reverse.” (Id. at 1042-45.) The amendment was defeated 
by a vote of 44-22 (Id. at 1074-75).

Given the legislative dynamic in which the Ervin amendment was 
proposed—an ongoing filibuster that Senator Ervin was seeking to 
prolong through the introduction of multiple amendments— it is 
entirely possible that those seeking to end the filibuster (and who 
voted against all the amendments pro-posed by Senator Ervin) were 
deciding their vote not on the substance of each amendment, but on 
the tactical judgment that the way to end the filibuster was to vote 
down each amendment proffered by those- conducting the filibuster. 
The importance- of such tactical considerations in the legislative 
process make it- always dangerous to impute a new meaning to a 
previously enacted statute from the choice of a later Congress not 
to amend that legislation.

Moreover, those not wishing to fo-rbid goals and timetables under 
the Executive Order were required to vote against the- Ervin Amend­
ment, and the vote therefore cannot be understood as manifesting 
a decision to overturn Congress’ 1964 decision disapproving statu­
torily-imposed quotas.

17 While it is an open question whether the seniority system here 
is embodied in a legally enforceable collective agreement (the court 
below merely assuming arguendo that it is, see n.l, supra), we do 
not understand the system’s protection under § 703(h) of Title VII 
to depend upon the resolution of that question. There- is no dispute 
that the employer here wished to implement the seniority system 
unilaterally, and that the employees had justifiable expectations 
that layoff decisions would be determined by seniority. We are 
aware of no authority construing § 703(h) to afford less protection 
to seniority systems established unilaterally by employers or in non- 
binding understandings between unions and employers than to those 
embodied in legally enforceable agreements.

26



27

raent, the discussion supra at pp. 15-16 demonstrates the 
pertinence of the congressional decision under Title VII 
to the appropriateness of the remedy under those pro­
visions.

Section 703(h) is a reflection of Congress’ specific 
desire to protect bona, fide seniority systems. And while 
in terms § 703(h) merely declares that bona fide senior­
ity systems are not to be held violative of Title VII, that 
provision reflects a congressional concern—-that the sen­
iority expectations of innocent employees not be over­
turned18— that must also be respected at the remedial 
stage of a lawsuit. On this point this case is analytically 
indistinguishable from Porter Co. v. NLRB, 397 U.S. 99. 
The Court dealt there with the relationship between 
§ 8(d) of the NLRA, which states that an employer does 
not violate1 his duty to bargain by refusing to agree to a 
union proposal, and § 10(c), which empowers the NLRB 
to provide such affirmative remedies against violators 
“ as will effectuate the purposes of the Act.” The court 
of appeals, noting that § 8(d) is a prohibitory and not 
a remedial provision, held that it did not preclude the 
Board from directing an employer to agree to a union 
proposal as a remedy for violations independently found. 
This Court rejected that reasoning:

18 Opponents of Title VII, during the debates, had pointed to the 
bill’s silence respecting seniority systems as leaving at least am­
biguous “ Title VII’s impact on existing collectively bargained sen­
iority rights” ( Teamsters, 431 U.S. at 352 (emphasis added)), and 
had predicted that the bill would “destroy” such rights, id. at 350. 
That warning had led to an outpouring of responses from the bill’s 
sposnors, quoted in American Tobacco Co. v. Patterson, 456 U.S. 53, 
72-73, that “the bill would not affect seniority at all;” Title VII 
“would have no effect on seniority rights existing at the time it 
takes effect;” Title VII would “have no effect on established sen­
iority rights;” seniority rights “are in no way affected by the bill.” 
The sponsors’ intent was that the bill would “protect . . . seniority 
systems.” (Id. at 74.) Section 703(h) was added to confirm that 
intention, and the sponsors’ statements following its addition to 
the bill “are to the effect that ‘the Senate substitute bill expressly 
protects valid seniority systems.’ ”  (Id.)



We may agree with the Court of Appeals that as 
a matter of strict, literal interpretation [§ 8(d)]  
refers only to deciding when a violation has oc­
curred, but we do not agree that the observation 
justifies the conclusion that the remedial powers of 
the Board are not also limited by the same considera­
tions that led Congress to enact § 8 (d). It is im­
plicit in the entire structure of the Act that the 
Board acts to oversee and referee the process of 
collective bargaining, leaving the results of the con­
test to the bargaining strengths of the parties. It 
would be anomalous indeed to hold that while § 8(d) 
prohibits the Board from relying on a refusal to 
agree as the sole evidence of bad-faith bargaining, 
the Act permits the Board to compel agreement in 
that same dispute. [397 U.S. at 107-108 (emphasis 
in original).]

Section 706(g) of Title VII, like its model § 10(c) of 
the NLRA (see p. 18 supra), authorizes “appropriate” 
remedies, and “ the scope of a district court’s remedial 
powers under Title VII is determined by the purposes of 
the Act.” Teamsters V. United States, 431 U.S. 324, 364 
(1977);110 Thus, while § 703(h) of Title VII, like § 8(d) 
of the NLRA, speaks to whether a violation has occurred, 
both provisions express a congressional policy that pre­
cludes the fashioning of remedies inconsistent with that 
policy.20

28

19 See also, Albemarle Paper Co. V. Moody, 422 U.S. 405, 417 
(1975) ; Franks v. Bowman Transportation Co., 424 U.S. 747, 770- 
771 (1977).

80 This Court’s treatment of the interrelationship between 
§ 703(h) and § 706(g) in Franks, supra, does not undercut the prop­
osition just stated. In Franks, the plaintiffs were identifiable vic­
tims of post-Act hiring discrimination who sought merely their 
“ rightful place” : the place in the seniority system that the plain­
tiffs would have occupied but for the employer’s discriminatory 
refusal to hire them. The Court held that the congressional desire 
to protect seniority systems did not preclude that particular relief, 
explaining:

Petitioners do not ask for modification or elimination of the 
existing seniority system, but only for an award of the sen-



29

6. To the foregoing considerations, another must be 
added. Because we are here dealing with the propriety of
courts imposing racial quota remedies, the issue has a con­
stitutional dimension. Shelley v, Kraemer, 334 U.S. 1, 14- 
18. All of the opinions in University of California Reg­
ents v. Bakke, 438 U.S. 265, and Fullilove v. Klutznick, 
448 U.S. 448, recognize significant limits on the power of 
government to engage in race-conscious action. We do not 
here rehearse the various positions stated in those opin­
ions, or the particular implications of those positions for 
resolution of the constitutional question that would be pre­
sented here were the order entered below held equitable. 
We note only that, as we have shown, the racial quotas 
here are not necessary to, or even designed to, remedy 
the assumed violation in this case. Nor were the courts 
below carrying out any cangressionally determined or 
mandated policy— quite the contrary as we have shown, 
supra, at pp. 17-28. And, the courts below made no 
findings to support a conclusion that the drastic con-

iority status they would have individually enjoyed under the 
present system but for the illegal discriminatory refusal to hire. 
It is this context that must shape our determination as to the 
meaning and effect of § 703(h). [424 U.S. at 758, emphasis 
added.]

In contrast to the relief sought in Franks, the relief ordered in 
the instant case does constitute a “modification . . .  of the existing 
seniority system.” The challenged order here provides that persons 
who were not “victims of illegal discrimination”—and who there­
fore already are in their rightful place in the seniority system—are 
able to retain employment in preference to> persons who have com­
mitted no wrong and who have superior seniority claims to that 
employment. In American Tobacco, supra, this Court indicated that 
rightful place relief for victims is likely the limit of the inroad upon 
protection of seniority rights permitted at the1 remedy stage of a 
Title VII action.

Title VII does affect seniority rights, for Franks V. Bowman 
Transportation Co., supra, allows awards of retroactive sen­
iority to victims of unlawful discrimination. However, Senator 
Clark . . . and other key proponents of the bill intended that it 
have minimal impact on seniority systems. [456 U.S. at 74, 
n.15, emphasis added].



30

sequences visited by the order here are necessary to 
achieve any important, much less compelling, govern­
mental interest.

In these circumstances, we suggest that the appropriate 
disposition should be to foreswear the quota remedy im­
posed below as lacking equity without squarely ad­
dressing or deciding the constitutionality of its issuance. 
When asked to invalidate Acts of Congress, the Court 
has long followed “ the ‘cardinal principle that this Court 
will first ascertain whether a construction of the statute 
is fairly possible by which the constitutional question 
may be avoided’.” United States v. Security Industrial
B a n k ,------ U.S. -------- , 51 L.W. 4007, 4009 (Nov. 30,
1982), quoting Crowell v. Benson, 285 U.S. 22, 62. That 
course is likewise appropriate in formulating equitable 
remedies, especially where, as here, complete make-whole 
relief can be provided without implicating constitutional 
concerns, and those concerns arise only from an at­
tempted extension of judicial power to achieve results 
unconnected to the making whole of victims of alleged 
discrimination.

CONCLUSION

For the above-stated reasons, the judgment below 
should be reversed.

Respectfully submitted,

J. Albert W oll 
815 15th Street 
Washington, D.C. 20005

Michael H. Gottesman
Robert M. Weinberg

1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036

Laurence Gold 
(Counsel of Record)
815 16th Street, N.W. 
Washington, D.C. 20006 
(202) 637-5390



APPENDIX



la

APPENDIX

Statements of Proponents of the Bill That Became the 
Civil Rights Act of 1984 Respecting the Availability of 

Quota Remedies under Title VII

I

In the House, the opening speech in support of the 
bill’s passage was delivered by Representative Celler, 
the Chairman of the House Judiciary Committee. 
In pertinent part, he stated:

In the event that wholly voluntary settlement 
proves to be impossible, the Commission could 
seek redress in the federal courts, but it would 
be required to prove in the court that the partic­
ular employer involved had in fact, discrimi­
nated against one or more of his employees be­
cause of race, religion or national origin. . . .

Even then, the court could not order that any 
preference be given to any particular race, re­
ligion or other group but would be limited to 
ordering an end to discrimination,®

Subsequent to the House’s passage of the bill, the 
Republican sponsors in the House published a memo­
randum describing the bill as passed. In pertinent 
part, the memorandum stated:

Upon conclusion of the trial, the federal court 
may enjoin an employer or labor organization 
from practicing further discrimination and may 
order the hiring or reinstatement of an employee 
or the acceptance or reinstatement of a union 
member. But, Title VII does not permit the or­
dering of racial quotas in businesses or unions 3

3 110 Cong. Rec. 1518 (emphasis added). See also id. at 1600 
(Rep. Minish) ( “no quota system will be set up” ).



2a

and does not permit interferences with seniority 
rights of employees or union members. [Id. at 
6566; emphasis added].

When the bill was taken up by the Senate, Sen­
ators Humphrey and Kuchel, the co-managers of the 
bill, undertook a description of each of the Titles. In 
the course of his description of Title VII, Senator 
Humphrey detailed the manner in which discrimina­
tion claims could be processed through suit and find­
ing of discrimination, and then described the remedial 
powers available to a court:

The relief sought in such a suit would be an 
injunction against future acts or practices of 
discrimination, but the Court could order appro­
priate affirmative relief, such as hiring or rein­
statement of employees and payment of backpay. 
This relief is similar to that available under the 
National Labor Relations Act in connection with 
the unfair labor practices, 29 United States 
Code 160 (b ) . No court order can require hiring, 
reinstatement, admission to membership, or pay­
ment of back pay for anyone who was not fired, 
refused employment or advancement or admis­
sion to a union by an act of discrimination for­
bidden by this title. This is stated expressly in 
the last sentence of Section 707 (e) [enacted, 
without change, as § 706(g)].

*  •?:- *

Contrary to the allegations of some opponents 
of this title, there is nothing in it that will give 
any power to the Commission or to any court to 
require hiring, firing, or promotion of employees 
in order to meet a racial ‘quota’ or or to achieve 
a certain racial balance.

That bugaboo has been brought up a dozen 
times; but is nonexistent. [Id. at 6548 (em­
phasis added)]



3a

Senator Kuehel made the other major opening 
speech in support of the bill. He, too, addressed the 
“scare charges” that the bill would permit court- 
ordered quotas:

Title VII might justly be described as a mod­
est step forward. Yet it is pictured by its oppo­
nents and detractors as an intrusion of numer­
ous Federal inspectors as an intrusion of numer- 
out Federal inspectors into our economic life. 
These inspectors would presumably dictate to 
labor unions and their members with regard to 
job seniority, seniority in apprenticeship pro­
grams, racial balance in job classifications, 
racial balance in membership, and preferential 
advancement for members of so-called minority 
groups. Nothing could be further from the 
truth, I have noted that the Equal Employment 
Opportunity Commission is empowered merely 
to investigate specific charges of discrimination 
and attempt to mediate or conciliate the dispute. 
It would have no opportunity to issue orders to 
anyone. Only a Federal court could do that, and 
only after it had been established in that court 
that discrimination because of race, religion, or 
national origin had in fact occurred. Any order 
issued by the Federal district court would, of 
course, be subject to appeal. But the important 
point, in response to the scare charges which 
have been widely circulated to local unions 
throughout America, is that the Court cannot 
order preferential hiring or promotion consider­
ation for any particular race, religion, or other 
group. Its power is solely limited to ordering an 
end to the discrimination which is in fact occur­
ring. [Id. at 6563 (emphasis added)].

Each day during the Senate debates on the Civil 
Rights bill, the principal Senate sponsors prepared a



4a

Bipartisan Civil Rights Newsletter which was hand- 
delivered to the office of each Senator supporting the 
bill. Its purpose, as explained by Senator Humphrey, 
was “ to keep Senators who are in favor of civil 
rights legislation informed of our point of view.” 4 
The April 11, 1964, issue of the Newsletter, pub­
lished two days after the filibuster had begun, 
declared:

Under title VII, not even a Court, much less 
the Commission, could order racial quotas or the 
hiring, reinstatement, admission to membership 
or payment of back pay for anyone who is not 
discriminated against in violation of this title.
[Id. at 14465; emphasis added].

On May 25, Senator Humphrey introduced a brief 
explanation of the House bill which he said had been 
“ read and approved by the bipartisan floor managers 
of the bill in both houses of Congress.” Id. at 11847. 
In pertinent part, the explanation provided:

The relief available is a court order enjoining 
the offender from engaging further in discrimi­
natory practices and directing the offender to 
take appropriate affirmative action; for example, 
reinstating or hiring employees, with or without 
back pay, . . .

The Title does not provide that any preferen­
tial treatment in employment shall be given to 
Negroes or to any other persons or groups. It 
does not provide that any quota systems may be 
established to maintain racial balance in em­
ployment. [Ibid.]

4 Id. at 5042. It is apparent from the numerous references to 
the Newsletter that the publication was widely read by Sen­
ators. See id. 5044, 5046, 5079, 7474, 8369, 8912, 9105, 9870, 
10622,12210,14464.



5a

II

The Republican sponsors of Title VII in the House, 
in their “Additional Views” to the House Judiciary 
Report, declared:

It must also be stressed that the [Equal Em­
ployment Opportunity] Commission must con­
fine its activities to correcting abuse, not pro­
moting equality with mathematical certainty. In 
this regard, nothing in the title permits a person 
to demand employment. Of greater importance, 
the Commission will only jeopardize its con­
tinued existence if it seeks to impose forced 
racial balance upon employers or labor unions.1

Senator Clark, one of the bipartisan “captains” for 
Title VII, declared in his principal speech describing 
Title VII: “ The suggestion that racial balance or 
quota systems would be imposed by this proposed leg­
islation is entirely inaccurate.” s At the conclusion 
of his speech he introduced a Justice Department let­
ter that stated:

There is no provision, either in title VII or in 
any other part of the bill, that requires or au­
thorizes any Federal agency or Federal court to 
require preferential treatment for any individ­
ual or any group for the purpose of achieving 
racial balance . . .3

And Senator Clark introduced written answers he 
had prepared to certain “objections” to Title VII 
that had been voiced, which included the following:

Objection: The bill would require employers 
to establish quotas for nonwhites in proportion

1 H. Rep. No. 914, supra, at 150.
a 110 Cong. Rec. 7207.
s Id. at 7207.



to the percentage of nonwhites in the labor mar­
ket area.

Answer: Quotas are themselves discrimina­
tory.4

Senator Humphrey, in an extended colloquy with 
Senator Robertson, made the following remarks:

I feel sure that the Senator from Virginia is 
not going to suggest or intimate that under this 
title of the bill there would be such a thing as 
a quota or a required percentage.

*  ■?:-

[C]an the Senator from Virginia point out 
in title VII any section, or subsection or provi­
sion that would indicate that in connection with 
the elimination of the segregation in employ­
ment based on color, race, religion or national 
origin an employer would be required to hire 
any member of a certain ethnic group ?

*  *  *

I would like to make an offer to [the Sena­
tor]. If the Senator can find in title VII . . . 
any language which provides that an employer 
will have to hire on the basis of percentage or 
quota, related to color, race, religion, or national 
origin, I will start eating the pages one after 
another, because it is not in there.®

Senator Allot, one of the Republican sponsors of 
the bill, in another colloquy with Senator Smathers, 
expressed his disapproval of governmentally-imposed 
quotas:

I completely agree with the Senator that if an 
employer were required to employ a person on

4 Id. at 7218.
5 Id. at 7418-20.



7a

the basis of a quota, there would be no justifica­
tion for that procedure under the American 
system . . .

*  *  *

The only point I wish to make is that if any­
one sees in the bill quotas or percentages, he 
must read that language into it. It is not in 
the bill.6

Senator Keating, in a colloquy with Senator 
Sparkman, secured the latter’s agreement that “ the 
bill does not provide in any way for quotas of any 
kind.” 7 Senator Keating later declared, in response 
to a public advertisement that the bill would require 
quotas:

The coordinating committee has charged . . . 
that Title VII would . . . permit the Govern­
ment to impose quotas and preferences upon 
employers and labor organizations in favor of 
minority groups . . .

Title VII does not grant this authority to the 
Federal Government. . .

An employer or labor organization must first 
be found to have practiced discrimination be­
fore a court can issue an order to prohibit fur­
ther acts of discrimination in the first instance. 
Adequate administrative and judicial procedures 
have been provided in the title to assure that 
an order of court is only founded upon clear 
and conclusive evidence of discrimination. For 
the Commission to request or a court to order 
preferential treatment to a particular minority

* Id. at 8500-01.

7 Id. at 8618.



8a

group would clearly be inconsistent with the 
guarantees of the Constitution.'8

8 Id. at 9113. In addition several Congressmen and Senators, 
recognizing that quotas would inevitably collide with the sen­
iority rights of incumbent employees, cited protection of sen­
iority systems as a reason for their opposition to quotas. See, 
e.g., the “Additional Remarks” of the Republican sponsors in 
the House, supra at 150; 110 Cong. Ree. 5423 (Sen. Hum­
phrey) ; id. at 6563 (Sen. Kuchel); id. at 9113 (Sen. Keating); 
id. at 10520 (Sen. Carlson) ; id. at 11471 (Sen. Javits) ; id. at 
15893 (Rep. McCulloch).