United Steelworkers of America (AFL-CIO-CLC) v. Weber Brief Amicus Curiae

    Nos. 78-432, 78-435 and 78-43G

lx\ Bnpvmt (Hmvi xsi %  Enlkb &tatw
October Term, 1978

United Steelworkers of A merica, AFL-CIO-CLC,
petitioner

V.
Brian F. W eber, et al.

Kaiser Aluminum & Chemical Corporation, 
petitioner

V.
Brian F. W eber, et al.

United States of A merica and Equal Employment 
Opportunity Commission, petitioners 

v.
Brian F. W eber, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Issie L. Jenkins 
Acting General Counsel 
Equal Employment

Opportunity Commission 
Washington, D.C. 20506

Carin A nn Clauss 
Solicitor of Labor 
Department of Labor 
Washington, D.C. 20210

W ade H. McCree, Jr. 
Solicitor General

Drew S. Days, III 
Assistant Attorney General

Lawrence G. W allace 
Deputy Solicitor General

W illiam C. Bryson 
Assistant to the Solicitor 

General

Brian K. Landsberg 
Robert J. Rein stein 

Attorneys
Department of Justice 
Washington, D.C. 20530



I N D E X

Opinions below .............  2

Jurisdiction ....................................................   2

Question presented.................................................  2

Statutory provisions involved.............................. 3

Statement ................................................................  4

Summary of argument .............................................  16

Argument:
The Gramercy training programs are a 
permissible form of voluntary affirmative 
action under Title V I I ......................................  20

A. Title V II permits, and often re­
quires, employers to take race­
conscious action ................................  22

B. Devising remedies for discrimi­
nation may require consideration
of r a c e .............................................  26
1. The legislative history of the

1964 Act ...................................  28
2. The legislative history o f the 

1972 amendments to Title
V II .............................................  31

C. Title V II permits private parties
to take affirmative action to rem­
edy apparent employment dis­
crimination similar to the relief 
that a court could order to rem­
edy proven discrim ination............ 35

Page



II

D. Kaiser could reasonably believe 
it would be found liable for dis-

■ criminating against blacks at the 
Gramercy plant ...........................

E. The Gramercy training programs
were appropriate remedies for 
the apparent Title V II violations 
in hiring for the craft positions.. 48

F. Title VII authorizes employers
to take affirmative action in 
response to Executive Order 
11246 ...............      54
1. The Executive Order pro­

gram requires government 
contractors to take affirma­
tive action, without need for 
proof o f prior discrimination
by each contractor ................... 56

2. The Executive Order pro­
gram is consistent with Title
V II ..................... ......................... 63

3. The Gramercy training pro­
grams were consistent with
the Executive Order pro­
gram     70

Conclusion ..............     73

CITATIONS
Cases:

Albemarle Paper Co. v. Moody, 422 U.S.
405 ........................ ......... ................... 24, 26, 36, 41

Alexander v. Gardner-Denver Co., 415 
U.S. 36

Argument— Continued Page

42

35



Ill

Asbestos Workers, Local 53 v. Volger, 407
F.2d 1047 ...............................................31, 32, 59

Boston Chapter, N.A.A.C.P., Inc. v. 
Beecher, 504 F.2d 1017, cert, denied,
421 U.S. 910 .............................................  26

Brown v. Gaston County Dyeing Machine 
Co., 457 F.2d 1377, cert, denied, 409
U.S. 982 ...................................................... 58-59

Carter v. Gallagher, 452 F.2d 315, cert.
denied, 406 U.S. 950 ................ 27-28, 30, 32, 51

Castaneda v. Partida, 430 U.S. 482 ......... 43
Contractors Ass’n of Eastern Pennsyl­

vania v. Secretary of Labor, 442 F.2d
163 ........................................................... 60, 67, 70

Cox v. Allied Chemical Corp. Local 216,
382 F. Supp. 309 ......................................  59

Crockett v. Green, 534 F.2d 7 1 5 ................. 27
Dothard v. Rawlinson, 433 U.S. 321 ........  43
Equal Employment Opportunity Commis­

sion v. American Telephone & Tele­
graph Co., 556 F.2d 167, cert, denied,
Nos. 77-241, 77-242, and 77-243 (July
3, 1978) .................................................26, 53-54

Ford Motor Co. v. Huffman, 345 U.S.
330 ................................................................. 51

Franks v. Bowman Transportation Co.,
424 U.S. 747 .................................... 24, 26, 37, 51

Furnco Construction Co. v. Waters, No.
77-369 (June 29, 1978) .........................  36, 38

General Electric Co. v. Gilbert, 429 U.S.
125 ................................................................  42

Griggs v. Duke Power Co., 401 U.S. 424.. 16, 24,
41,44

Hazelwood School District v. United 
States, 433 U.S. 299 ................................

Cases— Continued Page

43



IV

Hicks v. Crown Zellerbach Corp., 319 F.
Supp. 314 ........................................   59

International Brotherhood of Teamsters
v. United States, 431 U.S. 324..........24, 26, 30,

37, 44, 46, 53
Joyce v. McCrane, 320 F. Supp. 1284........ 60
McDonald v. Santa Fe Trail Transporta­

tion Co., 427 U.S. 273 ........... .................. 21, 41
Morgan v. Kerrigan, 509 F.2d 599 ......... 26
Morrow v. Crisler, 491 F.2d 1053, cert.

denied, 419 U.S. 895 ................................ 26, 28
N.A.A.C.P. v. Allen, 493 F.2d 614 ..........  26
Nashville Gas Co. v. Satty, 434 U.S. 136.. 41, 42 
Papermakers, Local 189 v. United States,

416 F.2d 980, cert, denied, 397 U.S.
919 ............................................... .................  59

Parson v. Kaiser Aluminum & Chemical
Corp., 575 F.2d 1374 ..................... ..........  47, 48

Patterson v. Newspaper Deliverers’ Union,
514 F.2d 767 .............................................  26

Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 ...........................................   58

Phelps Dodge Corp. v. National Labor Re­
lations Board, 313 U.S. 177 ....................  28

Regents of the University of California v.
Bakke, No. 76-811 (June 28, 1978)........passim

Rios Enterprise Ass’n v. Steamfitters,
Local 688, 501 F.2d 622 .........................  26, 51

Southern Illinois Builders Ass’n v. Ogil- 
vie, 327 F. Supp. 1154, affirmed, 471
F.2d 680 ...................................................... 60

Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 .............................. 31

United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, 430 U.S. 144.

Cases— Continued Page

25



V
Page

United States v. Allegheny-Ludlum Indus­
tries, Inc., 517 F.2d 826, cert, denied,
425 U.S. 944 .................................... -8 , 35, 40, 53

United States v. Carpenters Local 169,
457 F.2d 210, cert, denied, 409 U.S.
851 ................................................................  32

United States v. City of Chicago, 549 F.2d
415, cert, denied, 434 U.S. 875 ............  26-27

United States v. City of Jackson, 519 F.
2d 1147 .........................................    40

United States v. Electrical Workers Local 
38, 428 F.2d 144, cert, denied, 400 U.S.
943 ................................................................  32, 59

United States v. Electrical Workers, Local
212, 472 F.2d 634 ..................................... 26

United States v. Ironworkers, Local 86,
443 F.2d 544, affirming 315 F. Supp.
1202, cert, denied, 404 U.S. 984........27, 30-31,

32, 59
United States v. Masonry Contractors

Ass’n, 497 F.2d 871 ..................................  26, 58
United States v. N. L. Industries, Inc.,

479 F.2d 354 .............................................  27, 36
United States v. Operating Engineers,

Local 520, 476 F.2d 1201 .......................   58
United States v. Sheet Metal Workers,

Local 36, 416 F.2d 123 ...........................  59
Washington v. Davis, 426 U.S. 229 ..........  38
Watkins v. Scott Paper Co., 530 F.2d

1159, cert, denied, 429 U.S. 861 ............  44, 58
Weiner v. Cuyahoga Community College 

Dist., 238 N.E.2d 839, affirmed, 19 Ohio 
2d 35, 249 N.E.2d 907, cert, denied, 396 
U.S. 1004

Cases— Continued

6 0



VI

Statutes and regulations: Page
Civil Rights Act o f 1964, Pub. L. No. 88- 

352, 78 Stat. 241 et seq.:
Section 401, 42 U.S.C. 2000c(b )........  31
Section 407(b ), 42 U.S.C. 2000c-6.... 31
Section 701, 42 U.S.C. 2000e at 1232.. 3
Section 703(a ), 42 U.S.C. 2000e-2

(a ) ............................................. 10 ,13,17, 21
Section 703(d ), 42 U.S.C. 2000e-2

(d ) ................................................. ..10,13,21
Section 703(h ), 42 U.S.C. 2000e-2

(h) ........................................................ 23
Section 703( j ) ,  42 U.S.C. 2000e-2

( j )  ........................................................  30,31
Section 706(b ), 42 U.S.C. 2000e-5

(b ) ........................................................  35
Section 7 0 6 (f) (1 ), 42 U.S.C. 2000e-

5 ( f ) ( 1 )  ...............................................  13,35
Section 70 6 (g ), 42 U.S.C. 2000e-5

(g ) ............................................... 3, 27, 28, 31
Section 709(d ), 42 U.S.C. 2000e-8

(d ) ........................................................  63
Section 712, 42 U.S.C. 2000e-ll........  23
Section 7 1 3 (b )(1 ) , 42 U.S.C. 2000e-

1 2 (b ) (1 )  .............................................  3,40
Section 715, 42 U.S.C. 2000e-14........  69
Section 718, 42 U.S.C. 2000e-17........  68

Equal Employment Opportunity Act o f 
1972, Pub. L. No. 92-261, 86 Stat. 103.. 31

National Labor Relations Act, Section 10
(c ) , 29 U.S.C. 160(c) .............................. 28

Voting Rights Act o f 1965, Pub. L. No.
89-110, 79 Stat. 437 et seq.:

Section 2, 42 U.S.C. 1973 ...................  25
Section 4, 42 U.S.C. 1973b ................. 25
Section 5, 42 U.S.C. 1 9 7 3 c ................. 25



VII

41 C.F.R. Part 60-1.24(c) (2 ) ................... 61
41 C.F.R. Part 6 0 -2 ........................ -.......... -  61
41 C.F.R. Part 60-2.11 ...............................  61, 62
41 C.F.R. 2.11(a) ........................................ 72
41 C.F.R. 60-2.11 (b ) (1 ) (iii) ......... - .......  72
41 C.F.R. 60-2.11 (b ) (1 ) (viii) ................ 63,72
41 C.F.R. 60-2.12-60-2.24 ........ ..................  62
41 C.F.R. 60-2.20 (a ) (1) ............................ 72
41 C.F.R. 60-2.12 (d ) .................~~............. 72
41 C.F.R. 60-2.12 (g ) ................    72
41 C.F.R. 60-2.24 ........     62
41 C.F.R. Part 60-4 .......       61
41 C.F.R. Part 60-5 ............................   60
41 C.F.R. Part 60-6 ...................................  60
41 C.F.R. Part 60-8 ...................................  60
41 C.F.R. Part 60-10 ...........................    60
41 C.F.R. Part 60-11 .................................  60

Miscellaneous:
Comments, The Philadelphia Plan: A 

Study in the Dynamics of Executive 
Power, 39 U. o f Chi. L. Rev. 723
(1972) ..............................    31,64

Committee on Government Contracts, 
Patterns for Progress (Final Report)
(1960) ............................................ .............. 57, 62

109 Cong. Rec. (1963 ):
p. 3248 ................................................... 64
p. 11178 ..............................         64

110 Cong. Rec. (1964 ):
pp. 5877-5878 ..............................    29

p. 6549 ...................................................  29
p. 6563 ................................................ -  29

Statutes and regulations— Continued Page



VIII

p. 7214 ...................................................  29
p. 7215 ...................................................  64
p. 7243 ...................................................  29
p. 7774 .................................................... 29
p. 144465 ..................... -................-.......  29

117 Cong. Rec. (1971 ):
p. 31963 .................................................  67
p. 31975 .................................................  67
p. 32091 .................................................  67
p. 32105 .................................................  67
p. 32111 .................................................  33, 68

118 Cong. Rec. (1972 ):
p. 1385 .................................................... 66

pp. 1387-1391 ......................................... 65
p. 1389 .................................................... 66

pp. 1395-1396 ......................................... 62
p. 1397 .................................................... 64
p. 1662 .................................................... 67
p. 1663 .................................................... 67
p. 1664 ............................................... 33 ,67 ,68

pp. 1664-1676 ......................................... 33
p. 1665 .................................................... 33

pp. 1665-1671 ......................................... 33
p. 1671 .................................................... 67
p. 1675 .................................................... 34
p. 1676 .................................................... 33
p. 3367 .................................................... 67
p. 4917 .................................................... 67
p. 4918 .................................................... 33
p. 7166 .................................................... 34
p. 7168 .................................................... 35

Miscellaneous— Continued Page



IX

Miscellaneous— Continued Page
Executive Order 8802, 8 C.F.R. 957

(1938-1943 compilation) ....................... 56
Executive Order 10210, 3 C.F.R. 390

(1949-1953 compilation) ........... _.......... 56
Executive Order 10479, 3 C.F.R. 961

(1949-1953 compilation) ....................... 56
Executive Order 10925, 3 C.F.R. 448

(1959-1963 compilation) ................. 56, 57, 63
Executive Order 11246, 30 Fed. Reg.

12319 (1965) .................3 ,4 ,1 0 ,1 1 ,1 2 ,1 9 ,5 4 ,
57, 63, 68

Executive Order 11375, 32 Fed. Reg.
14303 (1967) ........................................... 3 ,4 ,6 3

Executive Order 12086, 43 Fed. Reg.
4650 (1978) ............................................ 4

36 Fed. Reg. 23152 (1971) ............... 61
41 Fed. Reg. 38814 (1976) ............... 41
43 Fed. Reg. 38290 (1978) ..........  41
44 Fed. Reg. 4421 (1979) ......_..................  40-41
44 Fed. Reg. 4426-4428 (1979) ................. 41
W. Gould, Black Workers in White Unions

(1977) ..................  58,59
H.R. 1746, 92d Cong., 2d Sess. (1972).... 34,35 
H.R. Rep. No. 92-238, 92d Cong., 1st Sess.

(1971) .........................................32 ,33 ,34 ,6 5 ,6 9
H.R. Rep. No. 1370, 87st Cong., 2d Sess.

(1962) ........................... 23
H.R. Rep. No. 914, 88th Cong., 1st Sess.

(1963) ..........................................................  23,63
F. Marshall, The Negro Worker (1967).. 58
F. Marshall and V. Briggs, Jr., The Negro

and Apprenticeship (1967) ................ 58
Memorandum on Goals and Timetables,

1 Empl. Prac. Guide (CCH) 3775 
(1973) ..........................................................  41



X

R. Nathan, Jobs and Civil Rights (1969).. 58
H. Northrup, Organized Labor and the

Negro (1944) .............................................  58
Note, Executive Order 1121-6: Anti-

Discrimination Obligations in Govern­
ment Contracts, N.Y.U.L. Rev. 590
(1969) ..........................................................  58

42 Op. A tt’y Gen. 405 (1969) ............... — 56
Order No. 4, 36 Fed. Reg. 23152 (1971).. 61, 62 
The Philadelphia Plan: Hearings on S.

931 Before the Subcomm. on Separa­
tion of Powers of the Senate Comm, on 
the Judiciary, 91st Cong., 1st Sess.
(1969) ......................................................   60

S. Rep. No. 92-415, 92d Cong., 1st Sess.
(1971) ..............  32 ,33 ,65

President’s Committee on Government 
Contract Compliance, Equal Economic
Opportunity (1953) ..................................  57

U.S. Bureau of the Census, 1970 Census 
of Population: Characteristics of the 
Population, Vol. 1, Part 20, Louisiana.. 45

United States Commission on Civil Rights,
Employment (1961) ........................——- 57, 58

United States Commission on Civil Rights,
The Challenge Ahead: Equal Oppor­
tunity in Referral Unions (1976) ..........  59

United States Commission on Civil Rights,
The Federal Civil Rights Enforcement 
Effort— 197h, To Eliminate Employ­
ment Discrimination .........................   61

Vaas, Title VII: Legislative History, 7 
B.C. Ind. & Comm. L. Rev. 431 (1966)..

Miscellaneous— Continued Page

30



Jin %  j§>ttpr£M£ (fottrt of thp IttUpb l§>tate
October Term, 1978

No. 78-432
United Steelworkers of A merica, 

AFL-CIO-CLC, petitioner

v.

Brian F. W eber, et al.

No. 78-435
Kaiser A luminum  &  Chemical Corporation,

PETITIONER

V.

Brian F. W eber, et al .

No. 78-436
U nited States of A merica and 

E qual E mployment Opportunity Commission, 
petitioners

v.

Brian F. W eber, et al .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(1 )



2

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la- 
54a)1 is reported at 563 F.2d 216. The order of the 
court of appeals denying rehearing (Pet. App. 57 a- 
58a) is reported at 571 F.2d 337. The opinion o f the 
district court (Pet. App. 59a-79a) is reported at 415 
F. Supp. 761.

JURISDICTION

The judgment of the court of appeals (Pet. App. 
55a-56a) was entered on November 17, 1977. Peti­
tions for rehearing were denied on April 17, 1978 
(Pet. App. 57a-58a). On July 7, 1978, Mr. Justice 
Powell extended the time for filing a petition for a 
writ of certiorari to and including September 14, 
1978. The petitions in Nos. 77-432, 77-435, and 77- 
436 were filed on September 14, 1978, and granted 
on December 11, 1978. The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, in the absence of an admission or proof 
o f past discrimination, an employer and a union may 
adopt a training program based in part upon a racial 
criterion to remedy apparent discrimination in hiring 
for skilled craft jobs at one of the employer’s plants.

1 “ Pet. App.” refers to the appendix to the petition in No. 
78-436.



s

STATUTORY PROVISIONS INVOLVED

Several pertinent provisions of Title VII of the 
Civil Rights Act of 1964 are set forth in the Appendix 
to the Petition for a W rit of Certiorari in No. 78-435 
(Pet. App. 66a-68a).

In addition, Section 706(g) o f Title VII, Pub. L. 
No. 88-352, 78 Stat. 261, as amended, 42 U.S.C. 
20Q0e-5(g), provides in pertinent part:

I f the court finds that the respondent has 
intentionally engaged in or is intentionally en­
gaging in an unlawful employment practice 
charged in the complaint, the court may enjoin 
the respondent from engaging in such unlawful 
employment practice and order such affirmative 
action as may be appropriate, which may in­
clude, but is not limited to, reinstatement or hir­
ing of employees, with or without back pay * * * 
or any other equitable relief as the court deems 
appropriate. * * * No order o f the court shall 
require the admission or reinstatement of an in­
dividual as a member o f a union, or the hiring, 
reinstatement, or promotion of an individual as 
an employee, or the payment to him of any back 
pay, if  such individual was refused admission, 
suspended, or expelled, or was refused employ­
ment or advancement or was suspended or dis­
charged for any reason other than discrimina­
tion on account of race, color, religion, sex, or 
national origin or in violation of Section 704(a ).

Executive Order 11246, 30 Fed. Reg. 12319 (1965), 
as amended by Executive Order 11375, 32 Fed. Reg. 
14303 (1967), reprinted in 42 U.S.C. 2000e at 1232, 
is set forth in the Appendix to the Petition for a



4

W rit o f Certiorari in No. 78-435 (Pet. App. 69a- 
83a).

STATEMENT

1. Kaiser Aluminum & Chemical Corporation 
operates a plant in Gramercy, Louisiana, located 
along the Mississippi River about halfway between 
New Orleans and Baton Rouge. The plant, which has 
been in operation since 1958, draws employees from 
the neighboring two parishes of St. James and St. 
John the Baptist (Pet. App. 62a; A. 60, 78).

In 1969, although the local population was approxi­
mately 46 percent black and the local labor force 
about 39 percent black, only about 10 percent of the 
employees at the Gramercy plant were black (Pet. 
App. 35a; A. 60, 78-79). In that year, at the urging 
o f the Office o f Federal Contract Compliance,2 Kaiser 
began filling approximately half the vacancies in the 
unskilled, non-craft jobs at the plant with minority 
applicants (A . 78-79, 81-82, 87). As a result o f this 
policy, the percentage o f minority employees at the 
plant increased by about one percent per year be­
tween 1969 and 1974, so that by December 1973, ap­

2 The Office of Federal Contract Compliance, subsequently- 
renamed the Office of Federal Contract Compliance Programs 
(OFCCP), is an office within the Department of Labor. It is 
responsible for ensuring compliance by government contrac­
tors with the equal employment opportunity responsibilities 
established by Executive Order 11246, 30 Fed. Reg. 12319 
(1965), as amended by Executive Order 11375, 32 Fed. Reg. 
14303 (1967), and by Executive Order 12086, 43 Fed. Reg. 
46501 (1978).



5

proximately 15 percent of the plant’s employees were 
black (A. 59-60, 87).

In the skilled craft jobs at the plant, the percentage 
of minority employees was even lower than in the 
plant as a whole. By the end of 1973, there were only 
five black employees among the 273 skilled craft 
workers at the plant— less than two percent (A . 62, 
167). Kaiser attributed the disparity between the 
percentage of blacks in the local labor force and the 
percentage of black employees holding skilled craft 
jobs at the Gramercy plant to the lack of training 
opportunities for blacks, caused in large part by dis­
crimination in the building trades and related indus­
tries (A . 63, 90, 93, 103-104).

Prior to 1974, Kaiser had filled almost all the craft 
positions at the Gramercy plant by hiring craftsmen 
from outside the plant who met the company’s experi­
ence and qualification requirements (A . 71, 77, 125). 
These requirements initially included at least five 
years of previous industrial experience in the craft 
(A . 43, 70). Because blacks had not been permitted 
to participate in substantial numbers in union and 
employer-operated craft training and apprenticeship 
programs, there were not many black craftsmen 
available who could meet Kaiser’s five-year experi­
ence requirement for the craft jobs (A. 43). A l­
though that requirement was subsequently reduced to 
three years of prior experience (A . 43, 70), and al­
though the company made efforts to recruit qualified 
black craftsmen who met that experience requirement 
(A . 62-63), by the end of 1973 only three of the



s
6

craft jobs in the plant were held by blacks who had 
met the company’s experience and qualification re­
quirements (Pet. App. 17a & n.13).

Between 1964 and 1971, Kaiser offered two on-the- 
job training programs to train unskilled plant em­
ployees for the plant’s skilled jobs. Both programs, 
however, were quite limited in the numbers of train­
ees taken, and both required at least some previous 
experience in the craft for which the training was 
offered. The first program, which began in 1964, 
offered training in the “ Carpenter-Painter”  craft 
category. Employees with a minimum of one year’s 
experience in that craft were permitted to bid for 
the program. Openings in the program were filled on 
the basis of seniority. A  total of 11 employees en­
tered this craft line during the period that the train­
ing program was in effect. Only two of the 11 were 
black (A . 126). The second program, which began 
in 1968, offered employees on-the-job training in the 
craft category of “ General Repairman.”  Employees 
with three years’ prior experience in the craft were 
eligible for this program, for which the qualified ap­
plicants were selected in order of their seniority at 
the plant. Seventeen trainees entered this program 
during the period it was in effect. All were white 
(A . 126).

In late 1973, in anticipation of the upcoming col­
lective bargaining negotiations with the United Steel­
workers of America, the certified representative of 
most of the production and maintenance employees at 
Kaiser’s plants, Kaiser officials met with Steelworkers



7

representatives to discuss the problem of the low 
number of minority employees in craft positions, not 
only at the Gramercy plant but in Kaiser’s plants 
throughout the country. As one Kaiser official char­
acterized the discussions, “ [t]here was certainly a 
concert of opinion that there was a problem, and one 
that had to be solved, so that [there] were prepara­
tory discussions, prior to the negotiations, that there 
had to be some solution arrived at to change the situa­
tion”  (A . 92). A  joint company-union committee was 
established to “ resolve possible inconsistencies”  be­
tween Kaiser’s hiring practices and “ Government and 
judicial decisions”  (A. 139).

In early 1974, Kaiser signed a nationwide collec­
tive bargaining agreement with the Steelworkers. 
The company and union issued a joint “ memorandum 
of understanding”  at that time, in which they stated 
that after reviewing the minority representation in 
the company’s skilled craft jobs, they had determined 
that “ notwithstanding the efforts made by the Com­
pany and the Union and/or the gains made via the 
Company’s various Affirmative Action Plans per E.O. 
11246,”  the participation of minority employees in 
skilled craft positions at Gramercy and other Kaiser 
plants “ must be increased in order to assure full 
compliance with the standards presently being enun­
ciated by the Government and recent court decisions” 
(A . 144-145). To achieve this goal, the 1974 collec­
tive bargaining agreement provided that at least half 
the employees placed in training programs for craft 
jobs in the designated plants should be minority



8

group members or women unless not enough qualified 
minority or women applicants were available at the 
time. That selection ratio would be maintained at 
each plant, according to the agreement, until the 
minority representation in the craft jobs was equiva­
lent to the minority representation in the local labor 
market (Pet. App. 62a-64a).'3 Similar minority- 
oriented training programs were established through­
out the aluminum industry as well as in the can in­
dustry (A. 61, 94). These programs mirrored a pro­
vision in the 1974 nationwide steel industry consent 
decree, to which the Steelworkers union was a party. 
See United States v. Allegheny-Ludlwm Industries, 
Inc., 517 F.2d 826, 880 n.87 (5th Cir. 1975), cert, 
denied, 425 U.S. 944 (1976).

2. Respondent Weber is a white employee at 
Kaiser’s Gramercy plant. In April 1974 the Gra- 
mercy plant announced that it was offering a total 
of nine positions in three on-the-job training pro­
grams for skilled craft jobs, in accordance with the 
terms of the 1974 collective bargaining agreement.4 
Bidding for the positions was open to all employees in 
the plant, with eligibility to be determined on the 
basis of plant seniority. To implement the 50 percent

3 A goal of five percent female representation was set for 
each craft family in each of the plants included within the 
program (A. 145).

4 Five of the positions were for a training program for the 
“ General Repairman” craft class, two were for the “ Elec­
trician”  craft class, and two were for the “ Instrument Re­
pairman” craft class (A. 166).



9

minority participation goal, however, black and white 
applicants were selected on the basis of their relative 
seniority within their racial group (Pet. App. 2a). 
Thus, the five most senior black applicants and the 
four most senior white applicants were selected for 
the nine positions in the April 1974 programs.5 Weber 
applied for all three programs offered in April but 
was not selected (A . 46-47). Two of the black appli­
cants who were selected had less plant seniority than 
Weber (A. 32-83, 156-161).

For the year 1974, the company offered a total of 
13 training positions for skilled craft jobs.6 Selections 
were made on an alternating basis between the most 
senior black and white employees bidding, so that by 
the end of the year the company had selected seven 
black employees and six white employees for the 13 
positions. In each instance, successful black bidders 
were junior in plant seniority to some unsuccessful 
white bidders (Pet. App. 2a, 63a). A  Kaiser official

5 There were two women employed in unskilled jobs at 
Gramercy at that time. Although under the memorandum of 
understanding women were entitled to compete for the posi­
tions reserved for minority and women employees, neither of 
the women employees bid for the 1974 programs.

6 In addition to the April programs, the company offered 
three more training programs in 1974 with a total of four 
positions available. Two white and two black employees were 
selected for the programs, which were for “ Air Conditioning 
Repairman” (one position), “ Carpenter-Painter” (two posi­
tions), and “ Insulator” (one position). Weber sought to bid 
for the insulator trainee position, but he was not selected be­
cause that job was reserved for the most senior qualified black 
employee (A. 46).



10

stated that if  selections had been made strictly by 
seniority, “ there would be very few blacks that would 
get into any of the crafts for quite a while”  (A . 72). 
During the same year, the company hired 22 crafts­
men from outside the plant. All but one of those em­
ployees were white (A . 65).

3. Weber filed a complaint in the District Court 
for the Eastern District of Louisiana, alleging that 
the use of a racial criterion to fill the craft training 
vacancies violated Sections 703(a) and 703(d) o f the 
Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a) and 
2000e-2(d). The district court certified a plaintiff 
class consisting o f all non-minority employees at 
Gramercy who had applied for or were eligible to 
apply for the on-the-job training programs (Pet. 
App. 61a; A. 34).

The two Kaiser officials who testified at tr ia l7 
denied that Kaiser had discriminated in hiring, but 
they stated that the company was aware o f its 
vulnerability to private or governmental lawsuits 
under Title V II and to coercive sanctions under 
Executive Order 11246 (A . 62, 77, 92-93). Kaiser 
and other aluminum companies had been defendants 
in Title VII litigation relating to plants similar to 
the Gramercy plant,8 and Kaiser and the Steelwork­

7 Four witnesses testified at the one-day trial: Weber, the 
two Kaiser officials, and another white employee who had not 
been selected for any of the training programs. In addition, 
a short factual stipulation and accompanying exhibits were 
introduced into evidence. The union did not call any witnesses.

8 Two of these lawsuits alleged discrimination at Kaiser’s 
other plants in Louisiana (see pages 46-47, infra) .



11

ers were aware of the government’s industry-wide 
lawsuit against the steel industry, which had led to a 
consent decree costing the steel companies millions of 
dollars in back pay awards (A . 83, 97). See United 
States v. Allegheny-Ludlum Industries, Inc., supra.

Kaiser decided to take voluntary affirmative action, 
according to one o f the company witnesses, because 
“we looked at our problem, which was that we had 
no blacks in the crafts, to speak of * * * and we 
realized that if  we did not do something on our own, 
then the Government was going to do it for us * * * 
[and] whatever their remedy is * * * it’s one heck 
o f a lot worse than something we can work out for 
ourselves”  (A. 83). Another company witness testi­
fied that Kaiser officials had decided “ that we should 
do those things that are necessary, without having 
to have it forced down our throat or require us to go 
into court to comply with the laws of the land”  
(A. 97). The witness added that during reviews of 
Kaiser’s compliance with the affirmative action obli­
gations of Executive Order 11246, the OFCCP, 
through two of its compliance agencies, had put pres­
sure on Kaiser to increase the number of minority 
employees in craft jobs. He stated, “ I don’t think 
that I have sat through a compliance review where it 
wasn’t apparent that there was few, if  any, minori­
ties in the craft occupations, and there was always, 
certainly, the suggestion, on the part o f the compli­
ance review officers, that we devise and come up 
with methods and systems to change that particular 
thing”  (A. 93). The Steelworkers favored voluntary



12

affirmative action, according to the company wit­
nesses, and the union particularly favored the on- 
the-job training programs because they offered in­
cumbent employees of both races a new means of 
access to the skilled craft jobs (A. 64, 73, 85, 97).

The district court held that assignment by race to 
the on-the-job training programs at the Gramercy 
plant violated Title VII. In the court’s view, “ quota 
systems” could be imposed as a form of relief only by 
the courts and then “ only in these limited cases 
where necessary to cure the ill effects of past dis­
crimination”  (Pet. App. 73a). The court found that 
Kaiser’s decision to bargain for on-the-job training 
programs was “prompted not only by its desire to 
increase the percentage o f its black craftsmen, and 
afford more job opportunities to blacks, but also by 
its concern about compliance with rules and regula­
tions issued by the Office o f Federal Contract Com­
pliance (OFCC) * * *”  (Pet. App. 65a). The pri­
mary motivations for instituting the programs, the 
court found, were “ satisfying the requirements of 
OFCC, and avoiding vexatious litigation by minority 
employees * * *”  (ibid.). Yet the court concluded 
that because the black employees selected for on-the- 
job training programs at the Gramercy plant “had 
never themselves been the subject o f any unlawful 
discrimination during hiring,”  the kind of “ affirma­
tive action quota system”  exemplified by the race­
conscious training programs would have been an in­
appropriate remedy for a court to order. Thus,



13
Kaiser’s practice of selecting trainees by race was 
unlawful, the court held, even if  Title V II permits 
an employer to institute a race-conscious program in 
those circumstances in which a court could properly 
order a race-conscious remedy (Pet. App. 77a). The 
court granted an injunction barring Kaiser and the 
Steelworkers “ from denying plantiffs, Brian F. 
Weber and all other members o f the class access to 
on-the-job training programs on the basis o f race” 
(Pet. App. 81a).

4. The court o f appeals affirmed, one judge dis­
senting.9 It held that using race as a criterion for 
selecting trainees in the Gramercy training programs 
violated Sections 708(a) and 703(d) of Title VII, 42 
U.S.C. 2000e-2(a) and 2000e-2(d). The court o f ap­
peals rejected the district court’s conclusion that only 
courts could institute race-conscious programs to 
remedy prior discrimination (Pet. App. 15a-16a), 
but it agreed with the district court that on the facts 
o f this case, the use o f a racial criterion in the selec­
tion of trainees violated Title VII (Pet. App. 20a). 
The court noted that the district court found that 
Kaiser “has not been guilty o f any discriminatory 
hiring or promotion at its Gramercy plant”  (Pet. 
App. 17a). In the absence o f prior discrimination, 
the court held, “ a racial quota loses its character as

9 The United States and the Equal Employment Opportunity 
Commission did not participate in the district court, but filed 
a brief as amici curiae in the court of appeals. The United 
States and the Equal Employment Opportunity Commission 
then intervened in the case for purposes of filing a petition for 
rehearing and for any further proceedings in the case. See 42 
U.S.C. 2000e-5 (f) (1).



14

an equitable remedy and must be banned as an un­
lawful racial preference prohibited by Title V II” 
(id. at 18a; emphasis in original). Title VII, the 
court stated, “ outlaws preferences for  any group, 
minority or majority, if  based on race or other im­
permissible classifications, but it does not outlaw 
preferences favoring victims of discrimination”  (Pet. 
App. 18a-19a). Yet because, in the court’s view, a 
racial preference is permissible only if  it is designed 
“ to restore employees to their rightful places within 
a particular employment scheme”  (id. at 20a), the 
court held that the preferential training programs 
could not be used in this case, where there was no 
proof that Kaiser had discriminated against the par­
ticular individuals benefited by the racial preference 
(id. at 31a).

The court of appeals also rejected the contention 
that the Executive Order supports the legality of the 
Gramercy training programs. The Executive Order, 
the court stated, cannot sanction affirmative action 
programs that would otherwise be contrary to Title 
V II (Pet. App. 24a). I f  the Executive Order pur­
ports to require a racial quota for admission to on- 
the-job training by Kaiser, the Executive Order must 
give way to the congressional prohibition contained 
in Title VII, the court held, at least in the absence 
of any finding o f prior discrimination in hiring or 
promotion by Kaiser (id. at 25a).

In dissent, Judge Wisdom offered three justifica­
tions for Kaiser’s program. First, he pointed out 
that to condition affirmative action on proof o f past



15

discrimination would discourage voluntary compli­
ance with the equal employment opportunity goals 
o f Title V II (Pet. App. 31a-32a). Employers and 
unions, he stated, should be permitted to institute 
reasonable voluntary remedies for arguable violations 
of Title VII. Judge Wisdom pointed to the low level 
o f minority participation in the general work force at 
the Gramercy plant and particularly in the skilled 
craft positions, as well as the exclusionary effect of 
the company’s practice of requiring five years of 
prior experience and training as a prerequisite for 
the craft positions (id. at 35a-37a). These factors, 
he concluded, were sufficient to put Kaiser and the 
Steelworkers at risk of being found to have violated 
Title V II; they should therefore be entitled to devise 
a reasonable remedy, such as the Gramercy training 
programs, for these arguable violations of the Act 
(id. at 37a-42a). Second, Judge Wisdom stated that 
employers and unions should be permitted volun­
tarily to take steps to remedy the severe and recent 
discrimination against blacks in employment in the 
skilled crafts generally (id. at 43a-47a). Third, he 
concluded that the Gramercy training programs 
might be justified as part o f Kaiser’s effort to com­
ply with the affirmative action requirements o f Ex­
ecutive Order 11246 (id. at 48a-53a). I f it were 
necessary to reach this question, Judge Wisdom 
stated, a remand would be necessary to determine 
whether the training programs are consistent with 
the Executive Order and, if  so, whether the federal



16

authorization of such action raises any constitutional 
questions.1'0

SUMMARY OF ARGUMENT

Title VII was enacted to “ achieve equality of em­
ployment opportunities and remove barriers that have 
operated in the past to favor an identifiable group of 
white employees over other employees.”  Griggs v. 
Duke Power Co., 401 U.S. 424, 429-430 (1971). 
While the statute protects both whites and non-whites 
from employment discrimination, it does not prohibit 
employers from taking account of race in making em­
ployment decisions. Because Title VII outlaws em­
ployment practices that have a discriminatory effect 
as well as those that are the product of discriminatory 
intent, the statute requires that employers be con­
scious o f the racial impact o f their employment prac­
tices. And even where race-conscious action is not 
required by the statute, it is permitted if  it serves 
to remedy the effects of prior discriminatory conduct.

This much is undisputed. Yet while the court of 
appeals acknowledged that an employer can lawfully 
take race-conscious action to remedy its prior dis­
crimination, the court held that such action is per­
missible only in very limited circumstances: to jus­
tify  the race-conscious action, according to the court 
o f appeals, the employer must prove that it engaged 10

10 Judge Wisdom did not disagree with the majority that 
any conflict between the Executive Order and Title VII should 
be resolved in favor of Title VII. In this case, however, he 
found no conflict between the two (Pet. App. 48a).



17

in discrimination, and its remedial action must be 
limited to benefiting the particular victims of its 
discriminatory conduct. In our view, this standard is 
too narrow. Although an employee makes a prima 
facie showing of a violation of Section 703(a) o f the 
Act by proving that the employer took action that 
disadvantaged him and was based on a racial cri­
terion, that prima facie showing is rebutted if  the 
employer can show that it had a reasonable basis for 
believing that race-conscious action was necessary to 
bring it into compliance with Title V II or to remedy 
past violations of the Act.

Kaiser had ample cause for concern that it might 
be held liable for discriminating against blacks in the 
craft positions at its Gramercy plant. The repre­
sentation of blacks among the skilled craft workers 
at the plant was far below their representation in the 
local labor force, and it was well below their repre­
sentation among craft workers in the local area. 
Moreover, Kaiser had long required substantial previ­
ous industrial craft experience as a prerequisite for 
entry into craft jobs at the Gramercy plant. That 
requirement, as Kaiser officials recognized, had an 
adverse impact on blacks. Unless it were found to 
meet the stringent test for job-relatedness under 
Title VII, that requirement, in conjunction with the 
huge disparity between the proportion of blacks in 
the skilled craft positions at the Gramercy plant and 
in the general labor force, would render Kaiser highly 
vulnerable to a successful Title V II suit by minority 
employees or applicants for employment.



18

In response to concerns about the underrepresenta­
tion of blacks in the craft positions at Gramercy, 
Kaiser and the Steelworkers agreed to take steps to 
remedy the situation. The action they decided to 
take— instituting craft training programs for un­
skilled employees— was an appropriate response to 
the problem. The programs benefited all incumbent 
employees, both white and black, by offering new op­
portunities for entry into the craft categories. At the 
same time, by providing for selection of minorities 
into the training program on a one-for-one basis, the 
program ensured that minorities would gain access 
to craft jobs and that the training programs would 
not perpetuate the effects of previous hiring practices 
at the Gramercy plant. Indeed, a training program 
limited to incumbent employees would otherwise have 
a built-in racial bias, due to the substantially smaller 
proportion of minority employees— and especially 
senior employees— in the plant compared to that in 
the local labor force.

The remedy selected by Kaiser and the Steelwork­
ers thus was an appropriate one under the circum- 
tances. A  court could have imposed such a remedy 
if, after litigation, it had found that Kaiser had dis­
criminated against blacks in selecting employees for 
craft positions. The legislative history of Title VII 
establishes that numerical race-conscious measures, 
such as the Gramercy training programs, were con­
templated as appropriate relief for courts to grant if 
they were necessary to remedy proven discrimination. 
And, even without an admission or finding of dis­



19

crimination, the same program could have been in­
corporated into a consent decree in settlement of 
litigation. Moreover, as the legislative history of 
Title VII further shows, the kind of measures taken 
here were understood to be consistent with the af­
firmative action requirements of Executive Order 
11246, and not to be prohibited by Title VII.

In this case, the remedial measures were instituted 
voluntarily, without litigation and without formal 
administrative sanctions under the Executive Order. 
Yet the absence of formal proceedings does not render 
unlawful what could lawfully have been imposed 
either administratively or by a court. Voluntary com­
pliance is a central theme of Title VII, and once it is 
determined that particular race-conscious action is 
appropriately remedial, that action does not violate 
the non-discrimination principle of Title VII, whether 
it is contained in a collective bargaining agreement or 
in the order of a court. Nor would the purposes of 
the Act be served by requiring an employer to admit 
and prove its own violations of the law in order to 
justify remedial action of this nature. Such a re­
quirement would plainly discourage voluntary com­
pliance. Instead, it would leave an employer in the 
awkward posture of having to await litigation charg­
ing discrimination against minorities while being pro­
hibited from taking steps that would help remedy the 
effects of its apparent past acts of discrimination. 
Title VII does not compel such a result. The volun­
tary action taken by Kaiser and the Steelworkers in 
this case is consistent with, and not prohibited by, 
Title VII.



20

ARGUMENT

THE GRAMERCY TRAINING PROGRAMS ARE A 
PERMISSIBLE FORM OF VOLUNTARY AFFIRMA­
TIVE ACTION UNDER TITLE VII

In 1973 Kaiser and the Steelworkers found them­
selves faced with a difficult dilemma. They recog­
nized that minorities were dramatically underrepre­
sented in the skilled craft jobs at the Gramercy plant 
and elsewhere. They could have elected to take no 
action, but they realized that inaction could well re­
sult in private suits and possible sanctions by the 
OFCCP. Instead, they chose what appeared to be 
the preferable course: to take measured steps to 
increase minority representation in the plant’s craft 
categories, even though that course would necessarily 
involve the company in race-conscious employment 
practices.

Kaiser and the Steelworkers sought to devise a 
scheme that would help cure the problem of the 
underrepresentation o f minorities in the skilled craft 
jobs and at the same time benefit incumbent em­
ployees— white as well as black. Accordingly, they 
determined to offer new on-the-job training programs 
for skilled craft positions that would be open only 
to employees within the plant. But because of past 
hiring practices, the plant population was dispropor­
tionately white in comparison with the general work 
force in the area— and especially so among those with 
greater employment seniority. Therefore, in order 
to ensure that minority participation in the training 
programs would be significant, they had to use race



21

as one criterion for selection to the programs. Other­
wise, the use of a training program limited to in- 
plant applicants would itself arguably have been an 
instrument of racial discrimination. It was the de­
cision to use race as a selection criterion that led 
to the suit by respondent Weber and a class of white 
employees who sought admission to the training 
programs offered at the Gramercy plant.

By showing that a racial classification was used 
for selection, respondent made a prima facie showing 
of a violation of Sections 703(a) and 703(d) o f Title 
VII, 42 U.S.C. 2000e-2(a) and 2000e-2(d), under 
this Court’s decision in McDonald v. Santa Fe Trail 
Transportation Co., 427 U.S. 273, 279 (1976). Our 
submission is that the complainants’ prima facie case 
was rebutted, because the use that is made of race 
as a criterion for selecting participants in the Gra­
mercy training programs does not constitute dis­
crimination against Kaiser’s white employees and 
does not improperly limit, segregate, or classify them, 
in violation of the statutory standards. Instead, a 
race-conscious selection device is properly used here 
for  remedial purposes— as a means o f voluntarily 
eliminating the effects o f prior exclusionary practices.

Upon a finding o f employment discrimination, a 
court may order race-conscious relief; indeed, such 
relief is often necessary to overcome the effects of 
the unlawful discrimination. See Regents of the 
University of California v. Bakke, No. 76-811 (June 
28, 1978), slip op. 32 (opinion o f Powell, J . ) ; id at 
18-19 n.17, 30-31 & n.28 (opinion of Brennan, White,



22

Marshall, and Blackmun, JJ .). Yet a race-conscious 
remedy is not lawful simply because a court has 
imposed it: it is lawful because it is remedial and 
restores employment conditions, to the greatest ex­
tent possible, to what would have existed absent 
discrimination. As we shall show, Title V II does not 
prohibit employers or unions from voluntarily taking 
remedial measures that courts could order upon a 
finding of discrimination. Thus, where a particular 
program is appropriately tailored to remedy appar­
ent employment discrimination and a court could 
order the program as a remedy for proven employ­
ment discrimination, an employer is free to adopt the 
program voluntarily. This is so even if  the program 
uses a racial criterion which, but for its justification 
as a remedy, would violate the Act. In this way, the 
broad prohibitions of Title V II are properly recon­
ciled with its remedial purposes and its emphasis 
on encouraging voluntary compliance.

A. Title VII Permits, and Often Requires, Employers 
to Take Race-Conscious Action

Not all race-conscious action taken by an employer 
constitutes racial discrimination or serves impermis­
sibly to “ limit, segregate, or classify”  employees by 
race. In some respects, Title V II actually requires 
the employer to take account of race or even to treat 
its employees differently on the basis of their race. 
The required race consciousness is a product o f the 
statute’s reach, which includes not only intentional 
discrimination, but facially neutral conduct that has 
a discriminatory effect.



23
Title V II was founded upon legislative determina­

tions that racial minorities were subjected to per­
vasive and systematic employment discrimination. 
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963 ); 
H.R. Rep. No. 1370, 87th Cong., 2d Sess. (1962). 
See Regents of the University of California v. Bakke, 
supra, slip op. 39-40 n.44 (opinion of Powell, J .). 
Congress had before it “ overwhelming” evidence of 
discrimination in employment, H.R. Rep. No. 914, 
supra, part 2, at 26. Some progress toward eliminat­
ing discrimination had been made through state fair 
employment legislation and through enforcement of 
federal Executive Orders in the contract compliance 
area, id. at 28-29. Congressional study revealed, 
however, that “ the incidence and depth of inequality 
remain widespread [and] [discrim ination continues 
to exist in all parts o f the country”  (id. at 29).

Faced with such entrenched patterns of discrimi­
nation, Congress legislated broadly. It decreed that 
no person, black or white, would be discriminated 
against in employment because o f his race. But it 
was clear that indifference to racial considerations 
could perpetuate prior discriminatory patterns and 
their effects. Therefore, Congress held employers and 
unions accountable not only for intentional discrimi­
nation, but also for employment practices having a 
discriminatory effect.11 As this Court observed in

11 Where Congress, under Title VII, intended not to prohibit 
practices having disproportionate racial effects, it provided 
specific statutory exceptions. See, e.g., Section 703(h), 42 
U.S.C. 2000e-2(h) (bona fide seniority system) ; Section 712, 
42 U.S.C. 2000e-ll (veterans’ benefits).



24

Griggs v. Duke Power Co., supra, 401 U.S. at 429- 
430, Congress’s objective in enacting Title VII was 
“ to achieve equality o f employment opportunity and 
remove barriers that have operated in the past to 
favor an identifiable group of white employees over 
other employees.”  Accordingly, under the Act, “prac­
tices, procedures, or tests neutral on their face, and 
even neutral in terms of intent, cannot be maintained 
if  they operate to ‘freeze’ the status quo of prior 
discriminatory employment practices.”  Id. at 430.

Because Title V II prohibits employment practices 
that have a racially disproportionate effect, except 
where they are justified on grounds of business neces­
sity,12 the statute necessarily requires employers to 
be conscious o f the racial impact of their employment 
practices. Griggs held that Title VII prohibits the 
use of employment tests that have a substantial dis­
parate impact on minority applicants or employees, 
unless the employer proves that the tests are job re­
lated. And Albemarle Paper Co. v. Moody, 422 U.S. 
405 (1975), held that in validating an employment 
test as job related, employers could be required to 
counteract its racially disparate effects by resorting 
to racial criteria. In some circumstances, the Court 
held, they could be required to undertake “ differential 
validation”  of their employment tests; i.e., setting

12 See International Brotherhood of Teamsters v. United 
States, 431 U.S. 324, 348-350 (1977) ; Franks v. Bow­
man Transportation Co., 424 U.S. 747, 763 (1976) ; Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 425 (1975) ; Griggs v. Duke 
Power Co., supra, 401 U.S. at 431.



25

one passing score for blacks and another for whites, 
so that the test would predict success on the job 
equally well for both racial groups. 422 U.S. at 435. 
Moreover, even if a selection device is properly vali­
dated, it cannot be used if there is an alternative 
practice available that equally serves business needs 
but has a lesser exclusionary effect on minorities. 
Id. at 425.

Since compliance with Title VII often requires con­
sideration of race, it cannot be said that the use of 
racial classifications necessarily violates the Act. By 
the very process of determining the racial effects of 
an employment practice, or of differentially validat­
ing that practice, or of replacing that practice with 
another less detrimental to minorities, an employer 
must consider the race o f his employees and appli­
cants:1'3 For this reason, “ it is clear that employers, 
to ensure equal employment opportunity, may have to 
adopt race-conscious hiring practices.”  Regents of 13

13 In this respect, Title VII is similar to the Voting Rights 
Act of 1965, Pub. L. No. 89-110, 79 Stat. 437. Like Title VII, 
the Voting Rights Act protects all individuals from discrim­
ination “ on account of race or color.” 42 U.S.C. 1973. In 
order to combat massive discrimination against minority 
voters, Congress prohibited governmental entities covered 
by Section 4 of the Act, 42 U.S.C. 1973b, from changing 
their voting procedures in a manner that would have the ef­
fect of discriminating against minorities. 42 U.S.C. 1973c. 
Compliance with the Act thus “ often necessitate [s] the use 
of racial considerations in drawing district lines,”  United 
Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 
U.S. 144, 159 (1977) (plurality opinion) ; and “ specific nu­
merical quotas in establishing a certain number of black ma­
jority districts” may be necessary and are lawful. Id. at 162.



26

the University of California v. Bakke, supra, slip op. 
40 n.37 (opinion of Brennan, White, Marshall, and 
Blackmun, JJ.).

B. Devising Remedies for Discrimination May Require 
Consideration of Race

Race-conscious measures may be necessary not only 
to comply prospectively with the Act, but also to 
remedy the effects of unlawful discrimination in the 
past. Thus, in Franks v. Bowman Transportation 
Co., supra, this Court held that seniority credits 
could be awarded on a racial basis in class action 
cases, and in International Brotherhood of Teamsters 
v. United States, supra, 431 U.S. at 357-362, the 
Court applied that principle to “pattern or practice” 
suits. In addition, appropriately tailored class-based 
numerical relief has been upheld in all eight circuits 
that have considered the matter, where such relief is 
necessary to rectify the effects of past exclusionary 
practices.14 See Regents of the University of Cali­

14 See, e.g., Morgan v. Kerrigan, 509 F.2d 599 (1st Cir. 
1975) ; Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 
1017 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975) ; Pat­
terson v. Newspaper Deliverers’ Union, 514 F.2d 767 (2d 
Cir. 1975) ; Rios v. Enterprise Ass’n Stea7n fitters, Local 638, 
501 F.2d 622 (2d Cir. 1974) ; Equal Employment Opportunity 
Commission v. American Telephone & Telegraph Co., 556 
F.2d 167 (3d Cir. 1977), cert, denied, Nos. 77-241, 77-242 and 
77-243 (July 3, 1978) ; N.A.A.C.P. V. Allen, 493 F.2d 614 
(5th Cir. 1974) ; Morrow V. Crisler, 491 F.2d 1053 (5th Cir.) 
(en banc), cert, denied, 419 U.S. 895 (1974) ; United States 
v. Electrical Workers, Local 212, 472 F.2d 634 (6th Cir. 
1973) ; United States v. Masonry Contractors Ass’n, 497 
F.2d 871 (6th Cir. 1974) ; United States v. City of Chicago,



27
fornia v. Bakke, supra, slip op. 32 (opinion of Powell, 
J . ) ; id. at 30-31 & n.28 (opinion o f Brennan, White, 
Marshall, and Blackmun, JJ.).

The authority to grant race-conscious relief, in­
cluding numerical relief, i f  necessary, is found in 
Section 706(g) of the Act. That Section provides 
that upon finding a violation of Title VII, a court 
may order “ such affirmative action as may be appro­
priate,”  including awards of back pay, orders to 
reinstate or hire employees, and “ any other equitable 
relief as the court deems appropriate.”  Numerical 
remedies, in appropriate cases, may be essential to 
overcome settled patterns of discrimination. For ex­
ample, by insuring a degree of minority representa­
tion in a work force, a numerical remedy “promptly 
operates to change the outward and visible signs of 
yesterday’s racial distinctions and thus, to provide 
an impetus to the process of dismantling the bar­
riers, psychological or otherwise, erected by past 
practices.”  N.A.A.C.P. v. Allen, 493 F.2d 614, 621 
(5th Cir. 1974). Moreover, minority workers are 
often reluctant to apply for jobs with employers who 
have excluded members o f their race, “ absent some 
positive assurance that if  qualified they will in fact 
be hired on a more than token basis.”  Carter v. 
Gallagher, 452 F.2d 315, 331 (8th Cir. 1971) (en

549 F.2d 415 (7th Cir. 1977), cert, denied, 434 U.S. 875 
(1977) ; Crockett V. Green, 534 F.2d 715 (7th Cir. 1976) ; 
United States v. N.L. Industries, Inc., 479 F.2d 354, 377 (8th 
Cir. 1973) ; Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir.) 
(en banc), cert, denied, 406 U.S. 950 (1972) ; United States 
V. Ironworkers, Local 86, 443 F.2d 544 (9th Cir.), cert de­
nied, 404 U.S. 984 (1971).



2 8

banc), cert, denied, 406 U.S. 950 (1972). See also 
Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) 
(en banc), cert, denied, 419 U.S. 895 (1974). Inte­
gration, like segregation, tends to perpetuate itself—  
by word-of-mouth recruitment, by breaking down the 
stereotypes of inferiority that caused the discrimina­
tion, and by creating countervailing forces of non­
discrimination, such as the duty of unions to repre­
sent their members fairly.

1. The Legislative History of the 1964 Act.

When it enacted Title VII, Congress gave little 
indication of the kind of remedies it contemplated 
that courts would order in Title V II suits. Section 
706(g) was modeled on the remedial section o f the 
National Labor Relations Act, Section 1 0 (c ), 29 
U.S.C. 160 (c). See Albemarle Paper Co. v. Moody, 
supra, 422 U.S. at 419. And that provision, as this 
Court has noted, was intentionally left open-ended:

[I ]n  the nature of things Congress could not 
catalogue all the devices and strategems for cir­
cumventing the policies o f the Act. Nor could it 
define the whole gamut of remedies to effectuate 
these policies in an infinite variety of situations. 
Congress met these difficulties by leaving the 
adaptation of means to end to the empiric proc­
ess o f administration.

Phelps Dodge Corp. v. National Labor Relations 
Board, 313 U.S. 177, 194 (1941). In Phelps Dodge, 
the Court made it clear that Section 10 (c) was not 
intended to restrict the remedial powers o f the Board



29

“within narrow canons for equitable relief deemed 
suitable by chancellors in ordinary private contro­
versies.”  Id. at 188. Because the National Labor 
Relations Act, like Title VII, was not confined to the 
“ correction of private injuries,”  id. at 193, the Court 
held that the remedies granted by the Board should 
be designed to serve the public purposes o f the Act 
as well as the private purposes o f restorative justice.

To be sure, there was considerable concern that the 
Act would be construed to require the use of quota 
systems to establish and maintain racial balance in 
employers’ work forces. See, e.g., 110 Cong. Rec. 
5877-5878 (1964) (remarks o f Sen. B yrd ); id. at 
7774, 7778 (remarks of Sen. Tower). The sponsors 
o f the bill repeatedly assured its opponents that 
this was not the intent and would not be the effect 
o f the statute. See id. at 6549 (remarks o f Sen. 
H um phrey); id. at 6563 (remarks o f Sen. K uchel); 
id. at 7243 (remarks o f Sen. Case). But these as­
surances did not suggest restrictions on remedies 
that could be ordered after a finding o f discrimina­
tion. Instead, they made it clear that the statute 
would not impose a duty on employers to establish 
racially balanced work forces and that it would not 
require or even permit employers to establish racial 
quotas for employment in the absence of discrimina­
tion o f the kind prohibited by the Act. See id. at 
7214 (Interpretative Memorandum of Sens. Clark 
and Case) (court cannot order remedy in the absence 
o f discrimination prohibited by Title V I I ) ; id. at 
6549 (remarks of Sen. H um phrey); id. at 14465



30

(Bipartisan Newsletter No. 28) (neither a court nor 
the Commission can order quota or other remedies 
in the absence o f discrimination of the kind prohib­
ited by Title V II).

The nature of the concerns about the reach of the 
statute is made clear by two provisions incorporated 
into the final version of Title VII. On the eve of 
passage, Senators Humphrey and Dirksen introduced 
a substitute for the bill that had been under debate. 
See Vaas, Title VII: Legislative History, 7 B.C. Ind. 
& Comm. L. Rev. 431, 447-457 (1966). The substi­
tute bill, which ultimately became Title VII, added 
amendments to allay the fears that the statute would 
require quota hiring and that it would restrict man­
agement prerogatives on a broad front. The amend­
ment that became Section 703( j )  of the Act stated 
that Title VII would not require employers to engage 
in preferential hiring merely to attain racial bal­
ance,115 and the amendment that became the last sen- 15

15 Section 703 ( j ) provides that an employer is not required 
by Title VII “ to grant preferential treatment to any individual 
or to any group because of the race * * * of such individual or 
group on account of an imbalance which may exist with re­
spect to the total number or percentage of persons of any 
race * * * employed by [the] employer.” 42 U.S.C. 2000e-2(j). 
That provision, however, is not a restriction on the use of 
racial classifications “as a tool for achieving the objective of 
remedying past discrimination.” See Regents of the University 
of California v. Bakke, supra, slip op. 18 n.17 (opinion of 
Brennan, White, Marshall and Blackmun, JJ.) ; id. at 30 n.28; 
International Brotherhood of Teamsters v. United States, 
supra, 431 U.S. at 340 n.20, 374 n.61; Carter v. Gallagher, 
supra, 452 F.2d at 329; United States v. Ironworkers, Local



31

tence of Section 706(g) simply stated that a court 
could not order relief under the authority of the 
Act if  employers took action against employees or 
applicants on grounds other than those prohibited by 
the Act. These provisions did not in any way restrict 
the scope o f the remedies that could be ordered for 
the kinds of discrimination prohibited by the Act. 
Instead, the adaptation of remedies was left to the 
courts and agencies charged with enforcing the 
statute.

2. The Legislative History o f the 1972 Amendments 
to Title VII

Any doubts that Title VII authorized the use of 
race-conscious remedies were put to rest with the 
enactment of the Equal Employment Opportunity 
Act of 1972, Pub. L. No. 92-261, which comprehen­
sively revised Title VII. See Regents of the Uni­
versity of California v. Bakke, supra, 30-31 n.28 
(opinion of Brennan, White, Marshall and Black- 
mun, J J .) ; Comment, The Philadelphia Plan: A 
Study in the Dynamics of Executive Power, 39 U. 
Chi. L. Rev. 723, 753 (1972).

86, supra, 443 F.2d at 552-554; Asbestos Workers, Local 53 
V. Vogler, 407 F.2d 1047, 1053-1054 (5th Cir. 1969).

The language of Section 703 (j)  tracks those provisions of 
Title IV of the same law that prohibit the assignment of 
school students “ to overcome racial imbalance.”  42 U.S.C. 
2000c(b), and 2000c-6. The Title IV provisions do not, how­
ever, prevent the use of remedial racial classifications to cor­
rect imbalances caused by unlawful discrimination, Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 17- 
18 (1971), and there is no reason to construe the identically 
worded section of Title VII differently.



32

Congress once again addressed the problem of 
employment discrimination because it found that in 
spite of the 1964 Act, many of the old patterns of 
racial exclusion remained. See S. Rep. No. 92-415, 
92d Cong., 1st Sess. (1971 ); H.R. Rep. No. 92-238, 
92d Cong., 1st Sess. (1971). The 1972 Act extended 
Title VII to new groups of employers and strength­
ened the authority of the Equal Employment Oppor­
tunity Commission. The Act also confirmed the au­
thority of both federal courts and federal agencies to 
order race-conscious numerical relief to remedy the 
exclusionary effects of past discrimination.

Prior to the enactment of the 1972 amendments, 
the federal courts regularly, and with notable uni­
formity, ordered class-wide race-conscious remedies 
for unlawful discrimination. As the Sixth Circuit 
stated in an often-cited opinion, a contrary course 
“ would allow complete nullification of the stated pur­
poses of the Civil Rights Act o f 1964.”  United States 
v. Electrical Workers, Local 38, 428 F.2d 144, 149- 
150, cert, denied, 400 U.S. 943 (1970). Among the 
forms of class-wide affirmative relief that were or­
dered was the use of numerical ratios to correct the 
exclusionary effects o f past discrimination. See, e.g., 
Asbestos Workers, Local 53 v. Vogler, 407 F.2d 1047 
(5th Cir. 1969); United States v. Ironworkers, Local 
86, 443 F.2d 544 (9th Cir. 1971), affirming 315 F. 
Supp. 1202, 1247-1250 (W.D. Wash. 1970), cert, de­
nied, 404 U.S. 984 (1971 ); Carter v. Gallagher, 452 
F.2d 315, 327 (8th Cir.) (en banc), cert, denied, 406 
U.S. 950 (1972 ); United States v. Carpenters, Local



33

169, 457 F.2d 210 (7th C ir.), cert, denied, 409 U.S. 
851 (1972).

Congress was aware o f the court decisions order­
ing or upholding numerical relief as a remedy for 
violations of Title VII. See S. Rep. No. 92-415, 
supra, at 21, 27-28; H.R. Rep. No. 92-238, supra, at 
8, 13; 118 Cong. Rec. 1664-1676 (1972) (remarks 
of Sen. Javits and text o f opinions); id. at 1676 
(remarks o f Sen. W illiams). Amendments were in­
troduced in both the House and the Senate to restrict 
federal agencies from ordering the use o f numerical 
ratios in hiring, but the amendments were defeated. 
See 117 Cong. Rec. 32111 (1971 ); 118 Cong. Rec. 
1676 (1972 ); id. at 4918. Senator Javits, the co-floor 
leader o f the bill in the Senate, noted that the amend­
ments would terminate “ the whole concept of ‘a f­
firmative action’ as it has been developed under Ex­
ecutive Order 11246 and as a remedial concept under 
Title V II.”  1,6 Id. at 1664. Referring to court deci­
sions that had approved numerical relief in Title VII 
cases, he stated (id. at 1665):

[T ]he amendment, in addition to the dismantling 
[o f] the Executive order program, would deprive 
the courts o f the opportunity to order affirmative 
action under title V II o f the type which they 
have sustained in order to correct a history of 
unjust and illegal discrimination in employment 16

16 Senator Ervin was the leader in the Senate of the attack 
on the use of numerical ratios in the enforcement of both 
Title VII and the Executive Order. As we shall discuss in 
more detail in connection with the Executive Order, see infra 
at pages 64-70, the use of numerical relief was sustained with 
respect to both programs.



34

and thereby further dismantle the effort to cor­
rect these injustices.

Referring to two other cases in which numerical 
relief had been ordered in consent decrees obtained 
by the Department of Justice, Senator Javits argued 
(id. at 1675) that the amendment

would torpedo orders o f courts seeking to correct 
a history of unjust discrimination in employment 
on racial or color grounds, because it would pre­
vent the court from ordering specific measures 
which could assign specific percentages of mi­
norities that had to be hired * * *.

Senator Williams, the other co-floor leader, stated 
that a prohibition against numerical relief “ would 
strip Title V II * * * of all its basic fiber.”  Id. at 
1676. These views, which prevailed in the Senate, 
were shared by the House, where the Committee that 
reported out the bill wrote: “Affirmative action is 
relevant not only to the enforcement of Executive 
Order 11246 but is equally essential for more effec­
tive enforcement o f Title VII in remedying employ­
ment discrimination.”  H.R. Rep. No. 92-238, 92d 
Cong., 1st Sess. 16 (1971).17

Congress not only rejected these restrictive pro­
posals but also affirmatively expanded the remedial

17 Congressional awareness of the decisions that had ordered 
numerical relief in Title VII cases was particularly significant 
in light of the understanding that, where the 1972 amend­
ments did not specifically change the law, “ the present case 
law as developed by the courts would continue to govern the 
applicability and construction of Title VII.”  118 Cong. Rec. 
7166 (1972) (section-by-section analysis of H.R. 1746).



35

authority o f the courts. Section 706(g) was amended 
to add to the various remedies already authorized the 
sweeping power to order “ any other equitable relief 
as the court deems appropriate.”  This amendment 
was intended to make clear that courts were meant 
to have “wide discretion in exercising their equitable 
powers to fashion the most complete relief possible.” 
118 Cong. Rec. 7168 (1972) (section-by-section anal­
ysis o f H.R. 1746). In light of Congress’s keen 
awareness o f the kinds of remedies courts had been 
granting in Title VII cases, and in light o f the pro­
tests from Senator Ervin and others over the use of 
race-conscious remedies, this amendment to Section 
706(g) provides substantial support for the proposi­
tion that Congress intended that numerical, race­
conscious relief is available under Title V II to rem­
edy employment discrimination.

C. Title VII Permits Private Parties to Take Affirmative 
Action to Remedy Apparent Employment Discrimina­
tion Similar to the Relief that a Court May Order 
to Remedy Proven Discrimination

In enacting Title VII, Congress expressed a clear 
preference for voluntary compliance as a means of 
combating employment discrimination. See 42 U.S.C. 
2000e-5(b) and 2000e-5(f) ( 1 ) ;  Regents of the Uni- 
vesrity of California v. Bakke, supra, slip op. 41 n.38 
(opinion o f Brennan, White, Marshall, and Black- 
mun, J J .) ; Alexander v. Gardner-Denver Co., 415 
U.S. 36, 44 (1974 ); United States v. Allegheny- 
Ludlum Industries, Inc., 517 F.2d 826, 846-848 (5th 
Cir. 1975), cert, denied, 425 U.S. 944 (1976). That



36
preference is founded upon sound public policy con­
siderations. Employers and unions are far better 
situated than courts or government agencies to fash­
ion methods for remedying past discrimination while 
minimizing disruption to the business and accommo­
dating, to the greatest extent possible, the interests 
and expectations o f other employees. Cf. Furnco 
Construction Co. v. Waters, No. 77-369 (June 29, 
1978), slip op. 10. Voluntary compliance avoids the 
expense, delay, and rancor often associated with 
complex Title VII litigation; it reduces governmental 
intervention into business affairs; and it allows the 
government’s enforcement and monitoring resources 
to be concentrated in those areas where they are 
most needed.

To be sure, Congress has equipped the courts and 
agencies with the authority to take coercive meas­
ures when voluntary compliance fails, but the very 
purpose o f these measures is to “  ‘provide the spur 
or catalyst which causes employers and unions to 
self-examine and to self-evaluate their employment 
practices and to endeavor to eliminate, so far as 
possible, the last vestiges o f an unfortunate and ig­
nominious page in this country’s history.’ ”  Albe­
marle Paper Co. v. Moody, supra, 422 U.S. at 417- 
418, quoting from United States v. N.L. Industries, 
Inc., 479 F.2d 354, 379 (8th Cir. 1973). A  rule 
prohibiting voluntary compliance would convert co­
ercive relief— a last resort remedy under the law—  
into the sole remedy.

That voluntary remedial action may be race-con­
scious does not render it unlawful. Title V II was



37

designed in part to change habits of discrimination 
and to persuade employers and unions, who had been 
hostile or indifferent to the rights of minorities, to 
correct exclusionary practices. As we have noted, 
Congress has required employers to be race-conscious 
in developing, analyzing, and altering their employ­
ment practices, notwithstanding that the results of 
those decisions will frequently reduce the existing 
expectations of white employees or applicants. In­
deed, Title V II permits employers to change their 
employment practices for  racial purposes even when 
such changes would not be required by the Act. For 
example, a company and union may have established 
a bona fide departmental seniority system which, be­
cause o f pre-Act discrimination, locks minorities into 
the less desirable jobs. Although such a system could 
withstand legal challenge, International Brotherhood 
of Teamsters v. United States, 431 U.S. 324 (1977), 
nothing in Title V II would prohibit the union and 
the employer from agreeing to alter the seniority 
system so as to enhance the opportunities o f minority 
employees. “ [E ]ven though this will to some extent 
be detrimental to the expectations acquired by other 
employees under the previous seniority agreement 
* * * the ability of the union and employer volun­
tarily to modify the seniority system to the end of 
ameliorating the effects o f racial discrimination [is 
consistent with] a national policy objective o f the 
‘highest priority’ * * Franks v. Bowman Trans­
portation Co., 424 U.S. 747, 778-779 (1976). Simi­
larly, even when not required to do so by the Act,



38

an employer may recruit minorities, cf. Washington 
v. Davis, 426 U.S. 229, 246 (1976), or make use of 
minority referral sources to fill jobs, cf. Furnco Con­
struction Co. v. Waters, supra, slip op. 4-5. Thus, 
“ [a lthough  Title V II clearly does not require em­
ployers to take action to remedy the disadvantages 
imposed upon racial minorities by hands other than 
their own, such an objective is perfectly consistent 
with the remedial goals of the statute.” Regents of 
the University of California v. Bakke, supra, slip op. 
19 n.17 (opinion of Brennan, White, Marshall, and 
Blackmun, JJ .).

The court of appeals agreed that “ voluntary com­
pliance in eliminating unfair employment practices 
is preferable to court action, and that private settle­
ment without litigation is the central theme of Title 
V II”  (Pet. App. 16a). But the court held that an 
employer could not undertake voluntary, race-con­
scious action unless it proved that it had engaged in 
discrimination (Pet. App. 18a-19a). Moreover, the 
court appeared to conclude that the permissible scope 
o f the employer’s remedial action would be limited to 
restoring particular victims of the employer’s dis­
crimination to their rightful places in the employ­
ment scheme (Pet. App. 20a). This restriction of the 
permissible scope for voluntary action would effec­
tively choke off voluntary remedial action altogether.

As a practical matter, few employers can be ex­
pected to admit or seek to prove that they have dis­
criminated against minorities or women, since to do 
so would open the way for successful suits by the



39

victims for backpay and injunctive relief. Moreover, 
by imposing such a narrow limit on voluntary affirm­
ative action, the holding o f the court of appeals would 
create an unjustified and arbitrary distinction be­
tween the kind of action that can be taken in re­
sponse to a lawsuit and the kind of action that can 
be taken on a voluntary basis. Indeed, the fallacy 
o f an approach that conditions affirmative remedial 
action on an admission or proof o f past discrimina­
tion is well illustrated by the facts of the present 
case. In 1974, seven blacks were selected for the 
Gramercy training programs. I f those blacks had 
accused Kaiser o f past discrimination and Kaiser had 
concluded that those allegations had factual support, 
the company presumably could have settled the mat­
ter by offering these seven persons priority selection 
into a training program. Similarly, i f  the govern­
ment or a class of black employees had accused Kaiser 
o f discriminating on a class-wide basis, Kaiser could 
have agreed, either by consent decree or by concilia­
tion before litigation, to adopt affirmative action 
measures such as instituting training programs like 
the ones in this case. In a suit collaterally attacking 
this remedy, Kaiser would not be required to admit 
or prove its past discrimination. In fact, consent 
decrees and conciliation agreements commonly con­
tain affirmative action obligations, including goals 
and timetables; but their validity is not undermined 
by boilerplate disclaimers of past discrimination. See, 
e.g., Equal Employment Opportunity Commission v. 
American Telephone & Telegraph Co., supra.



40

The Fifth Circuit made the same point when it 
upheld the nationwide steel consent decree, which 
contained numerical goals for craft training iden­
tical to those involved in this case, see United States 
v. Allegheny-Ludlum Industries, Inc., supra, 517 F. 
2d at 849:

Parties would be hesitant to explore the likeli­
hood o f settlement apprehensive as they would 
be that the application for approval would nec­
essarily result in a judicial determination that 
there was no escape from liability or no hope for 
recovery and hence no basis for a compromise. 

See also United States v. City of Jackson, 519 F.2d 
1147, 1152 (5th Cir. 1975).

Of course, consent decrees and conciliation agree­
ments are not immune from judicial scrutiny when 
they affect the interests o f third parties. Voluntary 
affirmative action programs devised prior to litiga­
tion should be subject to similar scrutiny, so as to 
ensure that the programs are reasonably tailored to 
the apparent violation that they are designed to rem­
edy. But, as in the case o f settlement agreements 
and consent decrees, the court should not insist on 
clear proof of a violation by the employer against 
the particular persons benefitted by the affirmative 
action program.

The Equal Employment Opportunity Commission 
has promulgated guidelines setting standards for the 
approval of voluntary affirmative action programs 
under Section 7 1 3 (b )(1 ) o f Title VII, 42 U.S.C. 
2000e-12(b) (1 ). Affirmative Action Guidelines, 44 
Fed. Reg. 4421 (1979). The Commission’s Guide­
lines state what we submit is the proper standard



41
for evaluating voluntary affirmative action programs. 
Under the Guidelines, affirmative action is appropri­
ate where an employer, after analyzing its employ­
ment practices, finds a reasonable basis for believing 
that race-conscious action is required to bring it into 
compliance with Title VII or to remedy past viola­
tions o f the Act. 44 Fed. Reg. 4426-4428 (1979). 
Pertinent portions of the Guidelines are reproduced 
as Appendix B to this brief.

The Guidelines represent the considered judgment 
of the Commission, the administrative body charged 
with the primary responsibility for the enforcement 
o f Title VII. Moreover, the Guidelines incorporate 
the principles developed in prior administrative pol­
icy statements on the question o f affirmative action 
by agencies that share with the Commission the re­
sponsibility for enforcing the Act. See Memorandum 
on Goals and Timetables, 1 Empl. Prac. Guide (CCH) 
^ 3775 (1973) (reproduced as Appendix D to this 
b r ie f ) ; Policy Statement on Affirmative Action Pro­
grams for State and Local Government Agencies, 41 
Fed. Reg. 38814 (1976) (reproduced as Appendix C 
to this b r ie f ) ; Uniform Guidelines on Employee 
Selection Procedures, 43 Fed. Reg. 38290 (1978).

As an administrative interpretation of Title VII 
by the enforcing agency, the Guidelines are “ entitled 
to great deference.”  Griggs v. Duke Power Co., 
supra, 401 U.S. at 433-434.18 Because “ the Act and

18 See also, e.g., Nashville Gas Co. v. Satty, 434 U.S. 136, 
142 n.4 (1977) ; McDonald v. Santa Fe Trail Transportation 
Co., 427 U.S. 273, 279-280 (1976) ; Albemarle Paper Co. v. 
Moody, supra, 422 U.S. at 429, 430-435. This is not a situation,



42

its legislative history support the Commission’s con­
struction, this affords good reason to treat the guide­
lines as expressing the will of Congress.”  Ibid. In­
deed, four members of this Court have specifically 
endorsed the Commission’s Guidelines as “ authorizing 
employers to adopt racial preferences as a remedial 
measure when they have a reasonable basis for be­
lieving that they might otherwise be held in violation 
o f Title V II.”  Regents of the University of Califor­
nia v. Bakke, supra, slip op. 41 n.38 (opinion of 
Brennan, White, Marshall, and Blackmun, JJ .).19 
Under the standard set forth in the Guidelines, the 
affirmative action program in this case is lawful.

D. Kaiser Could Reasonably Believe It Would Be Found 
Liable for Discriminating Against Blacks at the 
Gramercy Plant

Kaiser and the Steelworkers adopted the race- 
conscious training programs in part because of fear 
o f Title VII suits by minority applicants or em­
ployees (Pet. App. 3a, 65a). Although Kaiser offi­
cials insisted there had never been discrimination at

such as was presented in General Electric Co. v. Gilbert, 429 
U.S. 125, 140-145 (1976), where a Commission guideline was 
inconsistent with prior and more contemporaneous Commis­
sion interpretations, as well as with interpretations of other 
federal agencies charged with enforcing anti-discrimination 
laws. See Nashville Gas Co. v. Satty, supra, 434 U.S. at 142 
n.4.

19 Although the opinion in Bakke referred to the Commis­
sion’s proposed Guidelines, the final Guidelines have since 
been published. They contain the same standard for approval 
of affirmative action programs.



43

the Gramercy plant, they admitted that they were 
not confident that a court would agree with them, 
in light of the low minority representation in the 
plant’s unskilled jobs and the near absence of blacks 
from the skilled craft positions (A. 83, 97, 145).

Because Kaiser and the Steelworkers were in the 
awkward position of seeking to defend their training- 
programs without admitting liability for previous 
discrimination against blacks, and because Weber 
had no incentive to prove that Kaiser had discrimi­
nated against blacks in the past, the record does not 
establish in detail the factual basis for Kaiser’s con­
cerns. Even from the limited record developed at 
trial, however, it is clear that Kaiser had ample 
grounds to conclude that it could be held liable for 
discriminating against blacks at the Gramercy plant.

The record shows that in 1969 only about 10 per­
cent of Kaiser’s unskilled production workers were 
black, although the local labor force at that time 
was approximately 39 percent black. This disparity 
is so great that in a suit alleging discrimination 
against blacks at the Gramercy plant, it would con­
stitute prima facie evidence of unlawful discrimina­
tion in hiring. See Dothard v. Rawlinson, 433 U.S. 
321, 329-331 (1977 ); Hazelwood School District v. 
United States, 433 U.S. 299, 307-309 (1977 ); cf. 
Castaneda v. Partida, 430 U.S. 482, 496-497 (1977). 
The testimony at trial that Kaiser had a no-discrimi­
nation hiring policy and had sought to hire the “best 
qualified”  applicants (A . 77-78, 82) would have done 
nothing to rebut the strong inference o f discrimina­



44

tion arising from the huge disparity between the 
black representation in the unskilled jobs at the 
Gramercy plant and the black representation in the 
local labor force. See, e.g., International Brother­
hood of Teamsters v. United States, 431 U.S. 324, 
342-343 n.24 (1977 ); Dothard v. Rawlinson, supra; 
Albemarle Paper Co. v. Moody, supra.

There was even more cause for Kaiser’s concern 
that it could be found liable for discrimination in 
hiring for the skilled craft jobs at the Gramercy 
plant. Kaiser adopted the training programs because 
it “had no blacks in the crafts to speak o f”  (A. 83). 
At the time it adopted the programs, there were only 
five blacks among almost 300 craftsmen at the Gram­
ercy plant. Although there was no evidence at trial 
o f the percentage o f skilled minority craftsmen in 
the local labor market, the minority representation 
in the craft jobs was so low as to approach the 
“ inexorable zero.”  See International Brotherhood of 
Teamsters v. United States, supra, 431 U.S. at 342 
n.23.

The testimony at trial that black representation 
in the craft jobs at Gramercy was low because skilled 
black craftsmen were unavailable is subject to ques­
tion in light of census statistics regarding the num­
ber of black craftsmen in the area.20 Those statistics 
show that although blacks are under-represented in

20 Courts regularly take judicial notice of census data in 
Title VII cases. See, e.g., Griggs v. Duke Power Co., supra, 
401 U.S. at 430 n.6; Watkins v. Scott Paper Co., 530 F.2d 1159, 
1185 & n.36 (5th C ir.), cert, denied, 429 U.S. 861 (1976).



45

the skilled crafts in Louisiana, they are not nearly 
so underrepresented as they were in the craft jobs at 
the Gramercy plant. According to 1970 census data, 
blacks constituted 22.7 percent of the State’s total 
experienced male civilian labor force. U.S. Bureau 
of the Census, 1970 Census of Population: Charac­
teristics of the Population, Yol. 1, Part 20, Louisiana, 
table 172. Of the craftsmen and kindred workers, 
15.7 percent were black. Ibid.21 Unless conditions in 
the Gramercy area were grossly atypical of the State 
and the neighboring areas of New Orleans and Baton 
Rouge, the availability of skilled black craft workers 
was much greater than their representation in the * 20

21 According to the census figures, the statewide black repre­
sentation in the skilled crafts covered by the affirmative action 
programs ranged from 21.3 percent (for carpenters) to 3.0 
percent (for electricians). Blacks comprised 14.6 percent of 
the State’s mechanics and repairmen and 10.4 percent of the 
State’s machinists. U.S. Bureau of the Census, 1970 Census 
of Population: Characteristics of the Population, Vol. 1, Part
20, Louisiana, table 172.

With respect to the Gramercy area itself, published census 
data indicate that more than 20 percent of the craft and 
kindred workers in St. James and St. John the Baptist parishes 
were black. Id. at tables 122 and 127. Data for these parishes 
are not broken down in detail by craft because these parishes 
are not in a Standard Metropolitan Statistical Area. But the 
detailed statistics for the adjacent New Orleans and Baton 
Rouge SMSA’s, from which the Gramercy plant recruited 
(A. 62), are consistent with those for the State as a whole. 
U.S. Bureau of the Census, 1970 Census of Population, supra, 
at table 172. Moreover, because the black representation in the 
labor force is approximately twice as great in the Gramercy 
area as in the State as a whole, it is reasonable to assume that 
the proportion of blacks in the skilled crafts in the area is at 
least as high as in the State generally.



46

craft categories at the Gramercy plant prior to the 
institution of the training programs.

The testimony of Kaiser officials that Kaiser was 
unable to recruit significant numbers o f blacks who 
could meet its qualifications for entry into the craft 
categories is of little probative force in the absence 
of evidence as to what those qualifications were. One 
qualification that was revealed at trial was a re­
quirement that an applicant have at least five years’ 
industrial experience in the craft for which he was 
applying. As Kaiser officials admitted, this require­
ment disqualified blacks who had been excluded from 
industrial craft jobs and training programs in the 
past. Because of its exclusionary racial effect, the 
requirement of lengthy prior experience would be 
lawful only if  justified as a business necessity. See 
International Brotherhood of Teamsters v. United 
States, supra, 431 U.S. at 348-349.

In evaluating the basis for Kaiser’s concern that it 
could be found to have discriminated against blacks 
in the craft jobs at Gramercy, it is instructive to con­
sider Kaiser’s experience at its two other Louisiana 
plants. A t the same time that Kaiser was defending 
its affirmative action efforts in this case, it was de­
fending employment discrimination suits brought by 
black employees of its plants in Baton Rouge and 
Chalmette, Louisiana. Litigation arising from its 
Baton Rouge plant was settled by a consent decree 
requiring Kaiser to pay $255,000 to the plaintiff 
class. Burrell v. Kaiser Aluminum & Chemical Corp., 
Civ. Action No. 67-86 (M.D. L a.), consent decree



47

filed February 24, 1975. And in the action arising 
from the nearby Chalmette plant, the plaintiffs were 
held to have established a prima facie case of dis­
crimination against blacks in hiring for craft posi­
tions on the basis of statistics strikingly similar to 
those of the Gramercy plant before the 1974 train­
ing program was instituted. See Parson v. Kaiser 
Aluminum & Chemical Corp., 575 F.2d 1374, 1389 
(5th Cir. 1978). The Fifth Circuit noted in the 
Parson case that Kaiser had imposed a requirement 
of prior industrial experience as a prerequisite to 
entry into the craft positions, just as it had done 
at Gramercy, and it held that the preclusive effect 
of that requirement on blacks was so substantial as 
to impose on Kaiser the burden of showing that the 
prior experience requirement has “  ‘a manifest re­
lationship’ ”  to the legitimate needs of the craft posi­
tions. 575 F.2d at 1390. The court noted that a 
defense of business necessity to validate the prior 
experience requirement “ must meet rigorous stand­
ards.”  575 F.2d at 1390 n.33.22

Accordingly, even on the limited record available 
in this case, it is clear that Kaiser faced a very

22 The court in Parson noted that in the past Kaiser had re­
quired applicants for craft positions to pass the Wonderlic 
test and a written test on craft skills, and to have a high 
school diploma— requirements that the court termed “ inci­
dents of past bias.” 575 F.2d at 1390. There was no evidence 
of what prerequisites had been imposed at the Gramercy 
plant, in addition to the requirement of prior industrial ex­
perience, but there were allusions in the course of trial to 
other qualifications that were required for entry into the craft 
categories at Gramercy (A. 62, 63, 65, 71).



48

real prospect of being found liable for discriminat­
ing against blacks at Gramercy, at least in hiring for 
craft jobs, if  a suit had been brought. The statistical 
case would have been extraordinarily strong; the flat 
five-year requirement o f prior industrial experience 
would have been difficult to defend on grounds of 
business necessity; 23 and Kaiser’s protestations that 
it had followed a policy of non-discrimination would 
have been entitled to little or no weight.

E. The Gramercy Training Programs Were Appropriate 
Remedies for the Apparent Title VII Violations In 
Hiring for the Craft Positions

The remedial plan adopted by Kaiser and the Steel­
workers was appropriately designed to remedy the 
effects of the apparent past discrimination at Gram- 
ercy while at the same time minimizing the adverse 
impact on the expectations of incumbent white em­
ployees. The plan had several discrete features: it 
provided for training craftsmen rather than hiring 
craftsmen who were already trained; it made the 
training program available exclusively to employees

23 It is not established in the record that any amount of prior 
industrial experience is necessary to perform each of the craft 
jobs. Even if some level of skill is necessary, Kaiser’s flat re­
quirement of five years of industrial experience would prevent 
black applicants from proving that they had the requisite 
skills, which they might have acquired, for example, in voca­
tional education, in military service, by self-training, or in less 
than five years of work. The evidence that the five-year experi­
ence requirement was waived in some cases at the Chalmette 
plant suggests that the requirement may not have been a 
business necessity. See Parson v. Kaiser Aluminum & Chem­
ical Corp., supra, 575 F.2d at 1381.



49

within the plant; it set a goal of obtaining 39 per­
cent black representation in the craft categories; and 
it provided that until that level was reached, half the 
vacancies in the training programs would be reserved 
for blacks and women, if  that many qualified blacks 
and women were available.

Each of the features of the plan was reasonable 
and appropriate under the circumstances. The de­
cision to train craftsmen rather than to hire crafts­
men who were already trained was reasonable in 
light of Kaiser’s professed difficulty in locating black 
craftsmen with the necessary training or experience. 
The decision to limit the training program to em­
ployees already working in the plant was also reason­
able in light o f the union’s preference for training 
programs that would enhance the employment op­
portunities of incumbent employees rather than con­
tinuing to make the most attractive jobs at the plant 
available only to persons hired from outside the 
plant.

Of course, respondent does not complain that new 
training programs were established for the craft 
jobs. Nor does he complain that incumbent employees 
were selected for the programs. Both o f these de­
cisions, motivated by the company’s desire to engage 
in affirmative action, provided new opportunities for 
respondent and the class he represents. But it was 
the decision to offer training programs to current 
employees that necessitated the use of separate bid­
ding lists for blacks and whites. I f Kaiser had filled 
its training program with applicants from outside



50

the plant, random selection presumably would have 
produced a class of trainees that was 39 percent 
black— equal 'to the black representation in the local 
labor force. Within the plant, however, blacks com­
prised only 15 percent of the work force. Moreover, 
the blacks in the plant were concentrated in the lower 
ranges of the seniority lists because prior to 1969, 
the plant’s work force was only about 10 percent 
black. Once having decided to make the training 
programs available to current employees, Kaiser and 
the Steelworkers thus had to devise a system that 
would cure the basic evil that the program was de­
signed to remedy— the failure to hire black crafts­
men. With the proportion of blacks in the plant’s 
work force so' low, particularly among the most senior 
employees, strict reliance on seniority to select 
trainees would simply have perpetuated the effects 
of previous hiring practices. Thus, it was reasonable 
for Kaiser and the Steelworkers to try to break the 
hold of those practices by establishing a goal of hav­
ing 39 percent black craftsmen, while using separate 
bidding lists for the training program.

The court of appeals deemed the training programs 
inappropriate in part because they “ meddled”  with 
seniority. But the training programs did not upset 
any previous expectations based on the seniority sys­
tem at Gramercy. Prior to the establishment of the 
training programs, unskilled incumbent employees 
had no expectations whatever for entry into the 
skilled craft jobs. The training programs created 
wholly new expectations and opportunities for in­
cumbent employees. The company and union agreed



51

to make this training newly available to the unskilled 
employees, but on terms other than the traditional 
strict seniority basis. Even if employees may have 
a general expectation that employment benefits ordi­
narily will be allocated on the basis of seniority, that 
expectation is subject to modification through collec­
tive bargaining, see Ford Motor Co. v. Huffman, 345 
U.S. 330 (1953), particularly for the purpose of 
countering the effects of past discrimination. Franks 
v. Bowman Transportation Co., supra, 424 U.S. at 
778-779.

Finally, the use of a one-for-one ratio in selecting 
trainees was reasonable, for several reasons. First, 
even though the training programs were undertaken 
to provide a means for blacks to gain entry to the 
skilled crafts, whites were not excluded from the 
program. By allocating half the vacancies to whites, 
the programs offered new training and employment 
opportunities for all of the plant’s employees. See 
Carter v. Gallagher, supra, 452 F.2d at 330. Second, 
because only qualified employees were allowed to bid 
for the programs, and because prior experience and 
training were not required, “ less qualified”  blacks 
were not preferred over “ more qualified”  whites (see 
Pet. App. 20a ). Third, the one-for-one selection ratio 
for minorities and women is not indefinite; accord­
ing to the 1974 agreement, it will end when minority 
representation in the craft categories is equal to 
minority representation in the local work force. See 
Rios v. Enterprise Ass’n Steamfitters, Local 638, 501 
F.2d 622 (2d Cir. 1974). Fourth, to the extent that



52

women are selected for the program and mostly white 
craftsmen continue to be hired directly from outside 
the plant (see page 10, supra), the selection ratio may 
not result in more black craftsmen than would have 
been chosen had selections for the training programs 
been made at random from the local labor force.24

It is true, of course, that the blacks selected for the 
training program had not been identified as victims 
of prior discrimination at the Gramercy plant. But, 
as we have discussed, class-wide numerical relief 
need not always be limited to identifiable victims. 
This principle is particularly applicable in the context 
of voluntary compliance. An identification of indi­
vidual victims would require an admission of unlaw­
ful discrimination in the past and a specification of 
those persons who suffered as a result of that dis­
crimination. An employer could not ordinarily be 
expected to attempt voluntary compliance at the price 
of conceding back pay liability to each of the “ iden­
tified”  victims.

Moreover, there is no mechanism available in the 
context of voluntary remedial programs for identify­
ing specific victims from the broader category of po-

24 It is, accordingly, unnecessary in this case for the Court 
broadly to decide the circumstances in which, and the extent 
to which, “ catch-up” numerical relief can properly be used as a 
remedial device under Title VII. By utilizing a substantially 
higher percentage of minorities than are reflected in the local 
work force, such remedies enable the latter percentage to be 
approximated, and the remedial use of numerical ratios to 
end, in a time span shorter than that required for a complete 
personnel turnover. They have been widely used in court- 
ordered remedies. See e.g., cases cited in note 14, supra.



53

tential victims; 25 there is no ready equivalent to the 
adjudicatory “ remedy”  stage proceedings in a “pat­
tern or practice”  suit. See International Brotherhood 
of Teamsters v. United States, supra, 431 U.S. at 
371-372. And even if some mechanism could be de­
vised for identifying victims in the course of volun­
tary compliance efforts, the cost and delay of that 
effort would be prohibitive.26 Nor would the interests 
of white employees have been materially advanced 
if  participation in the training program had been 
premised on the identification o f particular blacks 
and women who had been victims of prior discrimi­
nation. The incumbent employees would be affected 
similarly by a remedy in favor of identifiable victims 
of specific discrimination as by a remedy that ap­
proximates that result by instead including a specified 
proportion of minority employees not so identified. 
See Equal Employment Opportunity Commission v.

25 Each black selected for the programs was at least a po­
tential victim of discrimination. Blacks hired at the Gramercy 
plant were not able to bid for skilled craft jobs because of the 
five years’ prior industrial experience requirement, which had 
a severe exclusionary racial effect. If that requirement were 
not validated, all blacks hired when it was in effect would be 
in a broad class of potential victims. See International 
Brotherhood of Teamsters v. United States, supra, 431 U.S. 
at 357-371.

26 In the nationwide steel consent decree case, it was con­
servatively estimated that individual determinations by a 
special master for the 60,000 claimants, with each person’s 
case taking one hour to resolve, would consume 28 years of 
trial time. United States v. Allegheny-Ludlum Industries, Inc., 
supra, 517 F.2d at 851 n.28.



54

American Telephone & Telegraph Co., supra, 556 F.2d 
at 177.

In sum, the Gramercy training programs were a 
reasonable and appropriate response to a problem 
that was accurately perceived as creating a potential 
for liability under Title VII. That the plan was race­
conscious is directly attributable to the previous hir­
ing practices at Gramercy that created the potential 
for liability and to the perception by Kaiser and the 
Steelworkers that appropriate voluntary action would 
be preferable to inaction, which could result in litiga­
tion and ultimately in remedial orders imposed by a 
court rather than designed by Kaiser and the Steel­
workers.

F. Title VII Authorizes Employers To Take Affirmative 
Action in Response to Executive Order 11246

Kaiser and the Steelworkers adopted their race­
conscious training programs in part to satisfy the 
affirmative action requirements of Executive Order 
11246 (Pet. App. 65a; A. 93). The Executive Order 
and the regulations promulgated under the authority 
o f the Order require government contractors such as 
Kaiser not only to refrain from discrimination in 
employment, but also to take affirmative action to 
redress the underutilization of minorities in their 
work force.

The court of appeals held that the Executive Order 
did not justify the use of a racial criterion for selec­
tion to the training programs at Gramercy in the 
absence of proof o f discrimination in hiring or pro­



55

motion at the Gramercy plant (Pet. App. 25a). To 
the extent the Executive Order purports to authorize 
the use o f a racial criterion without proof that the 
employer has discriminated, the court held that it is 
inconsistent with Title Y II and must give way 
(ibid.).

W e disagree with the court o f appeals that the 
Executive Order program conflicts with Title VII. 
It is clear from the legislative history that Congress 
considered the Executive Order program to be con­
sistent with Title V II and understood that the affirm­
ative action obligations imposed by the Executive 
Order are not premised on any finding of previous 
discrimination by each affected employer. Therefore, 
action taken voluntarily in conformity with the Ex­
ecutive Order does not violate Title VII.

There is, however, no need in this case to consider 
whether, or to what extent, Title V II permits the 
Executive Order to authorize or require government 
contractors to undertake affirmative action measures 
that would be impermissible if  undertaken by other 
employers. For the reasons we have shown, the 
Gramercy training programs were proper under Title 
V II wholly apart from the fact that Kaiser is a gov­
ernment contractor. Therefore, the role o f the Ex­
ecutive Order in this case, to the extent it influenced 
the decision o f Kaiser and the Steelworkers to adopt 
those programs, was merely to condition the govern­
ment’s willingness to deal with Kaiser on the adop­
tion of affirmative action measures that Kaiser and 
the Steelworkers were free to adopt voluntarily



56

whether they wished to do business with the govern­
ment or not.27 28 This is a case, in other words, in which 
the Executive Order operates in particularly close 
tandem with Title VII.

1. The Executive Order Program Requires Govern­
ment Contractors to Take Affirmative Action, W ith­
out N eed for Proof o f Prior Discrimination by 
Each Contractor

Racial discrimination in employment by govern­
ment contractors has been prohibited by Executive 
Orders of every President since Franklin D. Roose­
velt.2,8 But the early anti-discrimination efforts failed. 
Twelve years after President Roosevelt’s first order 
was issued, a study of its effectiveness revealed that 
“ the nondiscrimination provision is almost forgotten, 
dead and buried under thousands o f words of stand­
ard legal and technical language in Government pro­

27 See 42 Op. Att’y Gen. 405, 409 (1969) :
[I] t is important to distinguish between those things pro­
hibited by Title VII as to all employers covered by that 
act and those things which are merely not required of 
employers by that act. The United States as a contracting 
party may not require an employer to engage in practices 
which Congress has prohibited. It does not follow, how­
ever, that the United States may not require of those who 
contract with it certain employment practices which 
Congress has not seen fit to require of employers gen­
erally.

28 See, e.g., Exec. Order 8802, 3 C.F.R. 957 (1938-1943 
Compilation) (Pres. Roosevelt) ; Exec. Order 10210, 3 C.F.R. 
390 (1949-1953 Compilation) (Pres. Truman) ; Exec. Order 
10479, 3 C.F.R. 961 (1949-1953 Compilation) (Pres. Eisen­
hower; Exec. Order 10925, 3 C.F.R. 448 (1959-1963 Compila­
tion) (Pres. Kennedy).



57

curement contracts.”  President’s Committee on Gov­
ernment Contract Compliance, Equal Economic Op­
portunity 3 (1953). Most contractors had made little 
effort to comply with the orders, and governmental 
enforcement— based entirely on education and per­
suasion to obtain voluntary compliance— was ineffec­
tive. Ibid. In 1961, after further study revealed 
that the contract compliance program had not sig­
nificantly upset habitual patterns of discrimination,29 30 
the President determined that passive measures were 
futile. President Kennedy therefore issued Executive 
Order 10925, 3 C.F.R. 448 (1959-1963 Compilation), 
which not only prohibited discrimination but also 
required government contractors to “ take affirmative 
action to ensure”  non-discrimination.39 These dual 
provisions were repeated in Executive Order 11246, 
issued by President Johnson four years later.

Again, however, little progress was made. The De­
partment o f Labor, which was given general respon­
sibility for enforcing Executive Order 11246, relied

29 Committee on Government Contracts, Patterns for 
Progress (Final Report) 14 (1960). Another study found 
that “ there is little awareness of the nondiscrimination re­
quirement among the men who do the actual hiring * * 
United States Commission on Civil Rights, Employment 92 
(1961).

30 The preamble to Executive Order 10925 stated that the 
Order was issued after “ a review and analysis of existing 
Executive orders, practices, and government agency proce­
dures relating to government employment and compliance 
with existing non-discrimination contract provisions [which] 
reveal an urgent need for expansion and strengthening of ef­
forts to promote full equality of employment opportunity.”



58

initially on persuasion and generalized recommenda­
tions. See R. Nathan, Jobs and Civil Rights ch. 4 
(1969 ); Note, Executive Order 112^6: Anti-Dis­
crimination Obligations in Government Contracts, 44 
N.Y.U.L. Rev. 590 (1969). Widespread discrimina­
tory practices resisted these modest efforts. Exclu­
sionary conditions proved particularly intractable in 
the skilled craft positions. For many years, the ex­
clusion of minorities from membership in craft 
unions and from entry into union and employer­
operated apprenticeship programs, and the refusal 
o f employers to hire skilled minorities for craft posi­
tions, resulted in one o f the most extreme patterns 
o f employment discrimination in the national econ­
omy.31 Although the pattern of discrimination in 
skilled craft employment was confirmed by judicial 
findings of discrimination in dozens of cases brought 
under Title VII,32 judicial remedies in specific cases

31 See, e.g., F. Marshall and V. Briggs, Jr., The Negro and 
Apprenticeship, ch. I ll (1967) ; F. Marshall, The Negro 
Worker 64-81 (1967) ; H. Northrup, Organized Labor and the 
Negro 17-47 (1944) ; United States Commission on Civil 
Rights, Employment 91-93, 128-131 (1961) ; W. Gould, Black 
Workers in White Unions ch. 10 (1977).

32 Many of the leading cases in the employment discrimina­
tion area involved discrimination against blacks in admission 
to the skilled crafts. See, e.g., Watkins v. Scott Paper Co., 
530 F.2d 1159 (5th Cir. 1976), cert, denied, 429 U.S. 861 
(1976) ; United States V. Masonry Contractors Ass’n, 497 F.2d 
871 (6th Cir. 1974) ; Pettway v. American Cast Iron Pipe Co., 
494 F.2d 211 (5th Cir. 1974) ; United States v. Operating 
Engineers, Local 520, 476 F.2d 1201 (7th Cir. 1973) ; Brown 
V. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th



59

had little nationwide impact. In 1969, 58 percent of 
the nation’s local craft unions reported to the Equal 
Employment Opportunity Commission that they had 
no black members; nationwide, the electricians unions 
were 1.9 percent black; the ironworkers 1.7 percent 
black; the plumbers 0.8 percent black; and the sheet 
metal workers 0.7 percent black. See United States 
Commission on Civil Rights, The Challenge Ahead: 
Equal Opportunity in Referral Unions 29-30 (1976 ); 
W. Gould, Black Workers in White Unions 282 
(1977).

The Department o f Labor determined that more 
specific remedies were necessary to deal with the 
problem. In the late 1960’s, the Department issued 
plans for Philadelphia and other areas requiring 
government contractors to make good faith efforts 
to meet pre-determined percentage ranges o f minor­
ity workers in craft positions on construction jobs. 
These plans were based on administrative findings 
that the local unions had excluded minorities and 
that the contractors perpetuated that exclusion by

Cir.), cert, denied, 409 U.S. 982 (1972) ; United States v. 
Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969) ; 
United States v. Electrical Workers, Local 38, supra; United 
States v. Ironworkers, Local 86, supra.

A number of the cases in which discrimination has been 
found in the skilled crafts have arisen in Louisiana. See, e.g., 
Papermakers, Local 189 v. United States, 416 F.2d 980 (5th 
Cir. 1969), cert, denied, 397 U.S. 919 (1970) ; Asbestos Work­
ers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969) ; Cox 
v. Allied Chemical Corp. Local 216, 382 F. Supp. 309 (M.D. 
La. 1974) ; Hicks v. Crown Zellerbach Corp., 319 F. Supp. 314 
(E.D.La. 1970).



60

hiring only workers referred by the unions.33 The 
Philadelphia Plan was premised on a hiring ratio of 
one minority craftsman for each non-minority crafts­
man for a period o f four years, resulting in a minor­
ity participation level of approximately 20 percent 
in the six craft categories affected.34 The Philadel­
phia Plan was upheld as a valid exercise of execu­
tive power and consistent with Title VII,35 36 as were 
other local plans.®6

The approach taken in the Philadelphia Plan proved 
to be of limited utility. With more than 150,000 gov­
ernment contractors employing more than 30 million

33 See, e.g., Contractors Ass’n of Eastern Pennsylvania v. 
Secretary of Labor, supra, 442 F.2d at 163 (Philadelphia 
Plan) ; 41 C.F.R. Part 60-5 (1977) (District of Columbia 
Plan) ; 41 C.F.R. Part 60-6 (1977) (San Francisco Plan) ; 
41 C.F.R. Part 60-8 (1977) (Detroit Plan) ; 41 C.F.R. Part 
60-10 (1977) (Camden, N.J., Plan) ; 41 C.F.R. Part 60-11 
(1977) (Chicago Plan).

34 Pertinent portions of the Philadelphia Plan are repro­
duced as Appendix A to this brief. The full text of the Phila­
delphia Plan is reprinted in The Philadelphia Plan: Hearings 
on S.931 Before the Subcomm. on Separation of Powers of the 
Senate Comm, on the Judiciary, 91st Cong., 1st Sess. 26-38 
(1969). The one-for-one ratio is discussed in Section 3 (f)  
of the Order, id. at 33-34.

35 Contractors Ass’n of Eastern Pennsylvania v. Secretary 
of Labor, supra.

36 See, e.g., Southern Illinois Builders Ass’n v. Ogilvie, 327 
F. Supp. 1154 (S.D. 111. 1971), affirmed, 471 F.2d 680 (7th Cir. 
1972) ; Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J. 1970) ; 
Weiner v. Cuyahoga Community College Dist., 238 N.E.2d 
839 (1968), affirmed, 18 Ohio St. 2d 35, 249 N.E.2d 907 
(1969), cert, denied, 396 U.S. 1004 (1970).



61
workers,3T it was apparent that it would be impossi­
ble to design and impose specific compliance plans for 
all government contractors throughout the country. 
Accordingly, the Department o f Labor turned to a 
more general approach to the enforcement o f the 
Executive Order, which would rely more heavily on 
self-analysis and voluntary compliance.37 38 In late 1971, 
the Department issued Order No. 4, 36 Fed. Reg. 
23152, a regulation designed to provide guidance for 
non-construction government contractors, such as 
Kaiser, in evaluating their use o f minority employees 
and in developing affirmative action programs that 
would bring them into compliance with the Execu­
tive Order.39 40

Order No. 4 requires contractors to analyze their 
work forces and identify areas in which minorities 
and women are underutilized in comparison with 
their availability in the relevant labor force (41 
C.F.R. 60-2.11).“  Where deficiencies are found to

37 See United States Commission on Civil Rights, The Fed­
eral Civil Rights Enforcement Effort— 1974, To Eliminate 
Employment Discrimination, Vol. V, 390.

33 Like Title VII, the Executive Order program is largely 
premised on voluntary action. See Sections 207 and 209(b) of 
the Executive Order and 41 C.F.R. 60-1.24 (c) (2).

39 Order No. 4, as amended, is codified at 41 C.F.R. Part 
60-2. The regulations governing the affirmative action obliga­
tions of construction contractors are codified at 41 C F R 
Part 60-4.

40 The factors to be considered include the proportion of mi­
norities in the local population and in the local labor market, 
the availability of skilled minorities and the degree of training 
that could reasonably be undertaken to make all job classes 
open to minorities.



6 2

exist, contractors must seek to eliminate or modify 
employment practices causing or perpetuating the 
underutilization. In addition, employers must take 
affirmative action to redress the underutilization of 
minorities in their work forces, regardless o f whether 
the underutilization was caused by their discrimina­
tion or that of other employers. 41 C.F.R. 60-2.12, 
60-2.24. See Summary on Retaining OFCC in the 
Department of Labor, 118 Cong. Rec. 1395-1396 
(1972). The adequacy of the employer’s self-analysis 
and the appropriateness of any resulting affirmative 
action plans are reviewed and approved through the 
federal contract compliance program.

In Order No. 4, the Department o f Labor stated 
that based upon its experience with compliance re­
views under the Executive Order programs and the 
contractor reporting system, it found that skilled 
craft jobs are among those in which “ minority groups 
are most likely to be underutilized.”  41 C.F.R. 60- 
2.11. The Department therefore instructed contrac­
tors to direct special attention to such jobs in con­
ducting their analyses and setting their goals. More­
over, in light of a finding by the Committee on Gov­
ernment Contracts that minorities are underrepre­
sented in skilled jobs in part because they have had 
fewer training opportunities open to them,41 the 
Order directed contractors to consider undertaking 
training programs, if  reasonable, as a means o f mak­

41 Committee on Government Contracts, Patterns for Prog­
ress (Final Report), supra, at 15.



63

ing more jobs available to minorities. 41 C.F.R. 60- 
2 .11(b) (1 ) (v iii).

2. The Executive Order Program is Consistent with 
Title VII

The legislative history o f Title V II— particularly 
the legislative history of the 1972 amendments to the 
Act— establishes that affirmative action taken pur­
suant to the Executive Order is not barred by Title 
VII. Regents of the University of California v. 
Bakke, supra, slip op. 30 n.28 (opinion o f Brennan, 
White, Marshall, and Blackmun, JJ .).

A t the time Title VII was enacted, Congress was 
well aware o f the Executive Order program, and it 
approved the efforts o f various federal agencies to 
eliminate employment discrimination in industries 
receiving federal contracts.42 See Section 709(d) of 
Title VII, 42 U.S.C. 2000e-8 (d ); H.R. Rep. No. 914, 
88th Cong., 1st Sess. 28-29 (1963). Moreover, it was 
clear that Title V II was not intended to impede the 
authority of the President, under the Executive Or­
der program, to combat discrimination among fed­
eral contractors. In their interpretative memoran­
dum, which explained Title V II to the Senate at the 
commencement o f the Senate debate, Senators Clark 
and Case outlined the function and authority for the

42 The substantive provisions of Executive Order 11246 are 
identical to those of Executive Order 10925, which was in ef­
fect at the time Title VII was enacted, except that Executive 
Order 11246 requires non-discrimination and affirmative ac­
tion on grounds of sex, requirements that became effective in 
1968. See Executive Order 11375.



64

Executive Order program and added that Title VII 
“has no effect on the responsibilities of the [Presi­
dent’s Committee on Equal Employment Opportunity] 
or on the authority possessed by the President or 
Federal agencies under existing law to deal with 
racial discrimination in the areas of Federal Govern­
ment employment and Federal contracts.”  110 Cong. 
Rec. 7215 (1964). See also id. at 2575 (remarks of 
Rep. C eller); 109 Cong. Rec. 3248,11178 (1963) (mes­
sages of Pres. Kennedy).43

When Title V II was amended in 1972, the Secre­
tary o f Labor’s regulations imposing numerical re­
quirements on construction contractors in specific lo­
cations had been in effect for several years, and the 
general regulations imposing affirmative action re­
quirements on all government procurement contrac­
tors had recently been promulgated. The goals and 
timetables required under both programs were im­
posed without regard to whether each employer cov­
ered by the program had discriminated in employ­
ment. See 118 Cong. Rec. 1397 (1972). As the de­
bates over the 1972 Act make clear, Congress was 
aware of these developments.44 Moreover, in the

43 Senator Tower introduced an amendment that would have 
made Title VII the exclusive federal remedy for employment 
discrimination, see id. at 13650-13652. The amendment was 
defeated, thus supporting the view that Congress contem­
plated the continuation of the Executive Order program.

44 Congress’s attention had been focused on the Philadelphia 
Plan two years earlier, when after spirited debate, both houses 
rejected efforts to curb the Executive Order program on the 
ground that it imposed numerical hiring requirements. See 
Comment: The Philadelphia Plan: A Study in the Dynamics 
of Executive Power, 39 U. Chi. L. Rev. 723, 747-757 (1972).



65

course o f its consideration o f the 1972 Act, Congress 
demonstrated in several respects its approval o f the 
Executive Order program and its view that the pro­
gram was consistent with Title VII, even when it 
required affirmative action by employers who had 
not themselves discriminated.

First, the debate over whether to leave the enforce­
ment of the Executive Order with the Department of 
Labor demonstrated Congress’s concern that the Ex­
ecutive Order be vigorously enforced in tandem with 
Title VII. The 1972 bill initially contained a provi­
sion that would have transferred enforcement of the 
Executive Order from the Labor Department to the 
Equal Employment Opportunity Commission. The 
transfer was proposed because o f sentiment in Con­
gress that the Labor Department had not been vigor­
ous enough in enforcing the Executive Order. See
S. Rep. No. 92-415, 92d Cong., 1st Sess. 29-31 
(1971 ); H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 
14-16 (1971 ); 118 Cong. Rec. 1387-1391 (1972) (re­
marks o f Sen. W illiam s); id. at 1394 (remarks of 
Sen. Javits). The Senate Committee wrote (S. Rep. 
No. 92-415, supra, at 3 1 ):

The rights of minorities and women are too 
important to continue this important function in 
an agency that has not really been able to 
achieve the promised results. The contract com­
pliance program is an important and viable tool 
in the government’s efforts to achieve equal em­
ployment opportunity. It should have a chance 
to operate in a fresh atmosphere with an agency



66

that has Equal Employment Opportunities as its 
sole priority.

In support of the transfer provision, Senator W il­
liams referred to the affirmative action obligations 
imposed by the Executive Order (118 Cong. Rec. 
1389 (1 9 7 2 )):

The key to the Office of Federal Contract Com­
pliance’s approach is affirmative action. It is not 
a situation, although it could well be called one, 
o f correcting persisting discrimination in its 
most well understood form. It involves an effort 
regardless of the past history of the employer to 
upgrade and improve its minority work force.

On the Senate floor, Senator Saxbe proposed an 
amendment to strike the transfer provision from the 
bill. Although he disagreed that the Department of 
Labor had failed to enforce the Executive Order ade­
quately, his view of the affirmative action obligations 
imposed by the Order was the same as Senator W il­
liams’ . He noted that unlike court-ordered remedies 
under Title VII, numerical remedies under the Ex­
ecutive Order are not contingent upon findings of 
unlawful discrimination (id. at 1385):

The Executive order program should not be 
confused with the judicial remedies for  proven 
discrimination which unfold on a limited and ex­
pensive case-by-case basis. Rather, affirmative 
action means that all Government contractors 
must develop programs to insure that all share 
equally in the jobs generated by the Federal Gov­
ernment’s spending. Proof of overt discrimina­
tion is not required.



67

Senator Saxbe’s amendment was adopted. Id. at 
1398.'*5

Second, Senator Ervin introduced a series of 
amendments intended to prevent federal officials from 
imposing numerical hiring requirements under the 
Executive Order program. See id. at 1662, 3367, 
4917. The principal amendment would have pro­
hibited any “ department or agency or officer of the 
United States”  from requiring any employer to hire 
“persons of a particular race * * * in either fixed 
or variable numbers, proportions, percentages, quotas, 
goals, or ranges.”  118 Cong. Rec. 1663 (1972). As 
Senator Ervin freely acknowledged, the amendments 
were intended to curb the Philadelphia Plan in particu­
lar and the entire Executive Order program in general 
(ibid.). 45

45 Senator Javits also distinguished between the two pur­
poses of the Executive Order program. Quoting from the 
Third Circuit’s decision in Contractors Ass’n of Eastern 
Pennsylvania V. Secretary of Labor, supra, he noted that the 
court had upheld the Executive Order program not only as a 
means to remedy past discrimination in the six building trades 
there at issue, but also to encourage full utilization of all mi­
nority-group employees. 118 Cong. Rec. 1664 (1972). See 
also id. at 4918 (remarks of Sen. Javits).

Members of the House similarly recognized that the Execu­
tive Order remedies were not limited to cases of proven dis­
crimination. See, e.g., 117 Cong. Rec. 32091 (1971) (remarks 
of Rep. Ford) ; id. at 32105 (remarks of Rep. Mink). And in 
both the House and Senate, there were repeated references to 
the Contractors Association decision, which had held (442 
F.2d at 177) that numerical remedies under the Executive 
Order program were justified “ without regard to a finding 
as to the cause of the situation.” See, e.g., 117 Cong. Rec. 
31963 (1971) ; id. at 31975; 118 Cong. Rec. 1671 (1972).



6 8

As we have noted in connection with the discussion 
of the remedies Congress intended to be available 
under Title VII, Senator Javits led the opposition to 
the Ervin amendments and characterized them as an 
attack on “ the Philadelphia Plan and similar plans 
in other cities, and beyond that, the whole concept of 
‘affirmative action’ as it has been developed under 
Executive Order 11246 and as a remedial concept un­
der Title V IP ’ (118 Cong. Rec. 1664 (1 972 )). He 
read into the Congressional Record the Third Circuit’s 
opinion upholding the Philadelphia Plan (id. at 1665- 
1671), and he urged the Senate to confirm the principle 
that the government “ has discretion as to whom it will 
contract with and will not contract with, to affirma­
tively encourage nondiscrimination and full utilization 
of minority group employees and women,”  id. at 4918. 
The Ervin amendments were each defeated. A  simi­
lar amendment was proposed in the House; it too was 
defeated. 117 Cong. Rec. 32111 (1971).

Finally, having rejected the proposal to prohibit 
the use o f numerical hiring goals in the Executive 
Order program, Congress nonetheless adopted a pro­
cedural provision, which was codified as Section 718 
of Title VII, 42 U.S.C. 2000e-17, to protect contractors 
against possibly arbitrary contract termination ac­
tions by the OFCCP. Thus, Congress’s decision to 
leave the substantive provisions of the Executive 
Order program unchanged does not represent a de­
termination to forgo legislating on this matter al­
together. Congress modified those aspects o f the



69

Executive Order program with which it disagreed, 
but the substance o f the program— including the use 
o f affirmative remedies— was deliberately left intact.

In sum, Congress recognized that although the 
Executive Order and Title V II derive their authority 
from different sources and operate in somewhat d if­
ferent ways, the two are wholly compatible.46 As the 
House Committee noted, in reporting the bill that 
became the Equal Employment Opportunity Act of 
1972, “ The two programs [Title VII and the Executive 
Order program] are addressed to the same basic 
mission— the elimination of discrimination in employ­
ment. The obligations imposed on the government 
contractor by the Executive Order * * * reinforce 
the obligations imposed by Title V II.”  H.R. Rep. No. 
92-238, 92d Cong., 1st Sess. 15 (1971).

The court of appeals thus erred in holding that the 
Executive Order is inconsistent with Title VII to the 
extent that it imposes affirmative action obligations 
on an employer in the absence o f proof o f previous 
discrimination by that employer. Congress expressed 
its desire not to prohibit the Department o f Labor 
from urging, and employers from adopting, affirma­

46 That Congress viewed Title VII and the Executive Order 
program as compatible is further underscored by the addition 
of Section 715 as one of the 1972 amendments to the Act. 
That provision, which established the Equal Employment Op­
portunity Coordinating Council, was added to ensure coord­
ination between the Executive Order program and Title VII 
enforcement efforts. See 118 Cong. Rec. 1398 (1972) (re­
marks of Sen. Javits).



70

tive action plans o f the kind contemplated by the 
Executive Order program.

3. The Gramercy Training Programs W ere Consistent 
With the Executive Order Program

The race-conscious measures taken by Kaiser and 
the Steelworkers at the Gramercy plant closely paral­
lel the kinds of affirmative action programs that have 
been required by the Executive Order at least since 
the time of the Philadelphia Plan. As we have noted, 
the Philadelphia Plan was premised on findings of 
discrimination in the local industry that was the 
target o f the plan, not on any findings that the con­
tractors who received federal funds had themselves 
been guilty o f employment discrimination. See Con­
tractors Association of Eastern Pennsylvania v. Sec­
retary of Labor, supra, 442 F.2d at 163, 173. The 
Philadelphia Plan was an attempt to eradicate the 
effects of employment discrimination in the local con­
struction industry as a whole, not simply to combat 
discriminatory actions taken by each employer or 
union.

Similarly, Kaiser and the Steelworkers sought to 
eliminate the effects o f previous employment discrim­
ination that had blocked the entry of minority work­
ers into skilled craft jobs. Kaiser officials were 
aware that the paucity o f trained black craftsmen 
was attributable in large part to discrimination in 
the building trades industry. One of the Kaiser offi­
cials testified (A . 6 3 ):



71

Most of the training for craftsmen over the 
years has come through the building trades. 
They have apprenticeship programs, whereby a 
candidate spends four or five years in an ap­
prenticeship program, and he graduates as a 
skilled craftsman. Until just recently, blacks did 
not get into those building trades programs.

Kaiser’s director of equal opportunity affairs testified 
to the same effect, stating that in his view minority 
workers had less opportunity to enter skilled craft 
jobs as “ a direct result of employment discrimination 
over the years, the lack o f opportunity on the part 
of [minorities] to obtain the kind of training that 
was necessary to achieve the skills”  (A. 90). Minor­
ity workers “ had not been permitted to participate 
in certain skilled occupations and, therefore, they 
couldn’t be available in any quantity in the market 
place”  (A. 93). A t other plants, Kaiser had sought 
to hire minority craftsmen through the building 
trades unions that represented its craft employees, 
but “ in the majority o f situations, they were unable 
to because there weren’t any in the building trades”  
because o f discrimination against minorities in that 
industry (A . 104).

In fashioning the plan for race-conscious training 
programs, Kaiser recognized that unless some such 
steps were taken “ to change the pattern, * * * there 
would be no change in the present effects of past 
discrimination, as it relates to craft occupations”  (A. 
91). The plan that the company and the union set­
tled on was consistent with the basic approach em­



72

ployed under the Executive Order in both the Phila­
delphia Plan and Order No. 4. It used on-the-job 
training programs to overcome the effects of dis­
crimination in craft jobs in the building industry;4'7 
it established an ultimate goal based on the minority 
representation in the local labor force ; 47 48 and it pro­
vided for a hiring ratio o f minorities and women de­
signed to attain that goal within a reasonable period 
of time without foreclosing white employees from 
the training programs.49

Thus, the congressional approval, previously dis­
cussed, o f similar affirmative action measures taken 
pursuant to the Executive Order program makes it 
clear that voluntary action of the kind taken in this 
case is consistent with, and not prohibited by, Title 
VII.

47 See Philadelphia Plan, Memorandum Section 6 ( c ) (3 ) ,  
Order Section 3(c)  and (f) ; Order No. 4, 41 C.F.R. 60-2.11 
(a ) , 60-2.11 (b) (1) (viii), 60-2.20 (a) (1).

48 See Philadelphia Plan, Memorandum Section 6 ( c ) (2 ) ,  
Order Section 3 (a ) ;  Order No. 4, 41 C.F.R. 60-2.11 (b) (1)
(iii).

49 See Philadelphia Plan, Order Section 3 (e) and ( f ) ; Order 
No. 4, 41 C.F.R. 60-2.12 (d) and ( g ) .



73

CONCLUSION

The judgment o f the court o f appeals should be 
reversed.

Respectfully submitted.

W ade H. McCree, Jr. 
Solicitor General

Drew S. Days, III
Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

W illiam C. Bryson 
Assistant to the Solicitor 

General

Brian K. Landsberg 
Robert J. Rein stein 

Attorneys
Issie L. Jenkins 

Acting General Counsel 
Equal Employment

Opportunity Commission

Carin A nn Clauss 
Solicitor of Labor 
Department of Labor

January 1979



la

APPENDIX A

T h e  P h il a d e l p h ia  P la n

U.S. DEPARTM ENT OF LABOR 
Office  of t h e  A ssista n t  Secretary  

Washington, D.C., June 27, 1969

M e m o r an d u m

To: Heads of all agencies.

From: Arthur A. Fletcher, Assistant Secretary of 
Wage and Labor Standards.

Subject: Revised Philadelphia Plan for Compliance 
With Equal Employment Opportunity Require­
ments of Executive Order 11246 for Federally- 
Involved Construction.

1. Purpose

The purpose of this Order is to implement the pro­
visions of Executive Order 11246, and the rules and 
regulations issued pursuant thereto, requiring a pro­
gram of equal employment opportunity by Federal 
contractors and subcontractors and Federally-assisted 
construction contractors and subcontractors.

2. Applicability

The requirements o f this Order shall apply to all 
Federal and Federally-assisted construction contracts 
for projects the estimated total cost o f which exceeds 
$500,000, in the Philadelphia area, including Bucks,



2a

Chester, Delaware, Montgomery and Philadelphia 
counties in Pennsylvania.

3. Policy

In order to promote the full realization o f equal 
employment opportunity on Federally-assisted proj­
ects, it is the policy of the Office of Federal Con­
tract Compliance that no contracts or subcontracts 
shall be awarded for Federal and Federally-assisted 
construction in the Philadelphia area on projects 
whose cost exceeds $500,000 unless the bidder sub­
mits an acceptable affirmative action program which 
shall include specific goals o f minority manpower 
utilization, meeting the standards included in the 
invitation or other solicitation for  bids, in trades 
utilizing the following classifications o f employees:

Iron workers
Plumbers, pipefitters
Steamfitters
Sheetmetal workers
Electrical workers
Roofers and water proofers
Elevator construction workers

U. Findings

Enforcement of the nondiscrimination and affirma­
tive action requirements o f Executive Order 11246 
has posed special problems in the construction trades. 
Contractors and subcontractors must hire a new em­
ployee complement for each construction job and out 
of necessity or convenience they rely on the construe-



3a

tion craft unions as their prime or sole source of their 
labor. Collective bargaining agreements and/or es­
tablished custom between construction contractors 
and subcontractors and unions frequently provide for, 
or result in, exclusive hiring halls; even where the 
collective bargaining agreement contains no such hir­
ing hall provisions or the custom is not rigid, as a 
practical matter, most people working in these classi­
fications are referred to the jobs by the unions. Be­
cause of these hiring arrangements, referral by a 
union is a virtual necessity for obtaining employ­
ment in union construction projects, which constitute 
the bulk o f commercial construction.

Because of the exclusionary practices of labor or­
ganizations, there traditionally has been only a small 
number of Negroes employed in these seven trades. 
These exclusionary practices include: (1 ) failure to 
admit Negroes into membership and into apprentice­
ship programs. At the end of 1967, less than one- 
half o f one percent of the membership o f the unions 
representing employees in these seven trades were 
Negro, although the population in the Philadelphia 
area during the past several decades included sub­
stantial numbers of Negroes. As of April 1965, the 
Commission on Human Relations in Philadelphia 
found that unions in five trades (plumbers, steam- 
fitters, electrical workers, sheet metal workers and 
roofers) were “ discriminatory”  in their admission 
practices. In a report by the Philadelphia Local 
AFL-CIO Human Relations Committee made public



4a

in 1964, virtually no Negro apprentices were found in 
any o f the building trades classes;1 (2 ) failure of the 
unions to refer Negroes for employment, which has 
resulted in large measure from the priorities in refer­
ral granted to union members and to persons who 
had work experience under union contracts.

On November 30, 1967, the Philadelphia Federal 
Executive Board put into effect the Philadelphia Pre- 
Award Plan. The Federal Executive Board found 
that 2 the problem of compliance with the require­
ments of Executive Order 11246 was most apparent 
in Philadelphia in eight construction trades: elec­
trical, sheetmetal, plumbing and pipefitting, steam­
fitting, roofing and waterproofing, structural iron 
work, elevator construction and operating engineers; 
and that local unions representing employees in these 
trades in the Philadelphia area had few minority 
group members and that few minority group persons 
had been accepted in apprenticeship programs. In 
order to assure equal employment opportunity on Fed­
eral and Federally-assisted construction in the Phila­
delphia area, the plan required that each apparent 
low bidder, to qualify for a construction contract or 
subcontract, must submit a written affirmative ac­
tion program which would have the results of as­

1 Marshall and Briggs, Negro Participation in Apprentice­
ship Programs (Dec. 1966), p. 91.

2 These findings were based on a detailed examination of 
available facts relating to building trades unions, area con­
struction volume and demographic data.



5a

suring that there will be minority group represen­
tation in these trades.

Since the Philadelphia Plan was put into effect, 
some progress has been made. Several groups of con­
tractors and Local 543 of the International Union of 
Operating Engineers have developed an area program 
of affirmative action which has been approved by 
OFCC in lieu o f other compliance procedures, but sub­
ject to periodic evaluation. The original Plan was sus­
pended because of an Opinion by the Comptroller 
General that it violated the principles of competitive 
bidding.

Equal employment opportunity in these trades in 
the Philadelphia area is still far from a reality. 
The unions in these trades still have only about 1.6 
percent minority group membership and they con­
tinue to engage in practices, including the granting 
of referral priorities to union members and to per­
sons who have work experience under union contracts, 
which result in few Negroes being referred for em­
ployment. We find, therefore, that special measures 
are required to provide equal employment oppor­
tunity in these seven trades.

In view of the foregoing, and in order to imple­
ment the affirmative action obligations imposed by 
the equal employment opportunity clause in Execu­
tive Order 11246, and in order to assure that the 
requirements of this Order conform to the principles 
of competitive bidding, as construed by the Comp­
troller General of the United States, the Office of



6a

Federal Contract Compliance finds that it is neces­
sary that this Order, requiring bidders to commit 
themselves to specific goals of minority manpower 
utilization, be issued.

5. Acceptability of affirmative action programs

A bidder’s affirmative action program will be ac­
ceptable if  the specific goals set by the bidder meet 
the definite standards determined in accordance with 
Section 6 below. Such goals shall be applicable to 
each of the designated trades to be used in the per­
formance of the contract whether or not the work is 
to be subcontracted. However, participation in a 
multi-employer program approved by OFCC shall be 
acceptable in lieu of a goal for the trade involved 
in such training program. In no case shall there be 
any negotiation over the provisions of the specific 
goals submitted by the bidder after the opening of 
bids and prior to the award of the contract.

6. Specific goals and definite standards

a. General.— The OFCC Area Coordinator, in co­
operation with the Federal contracting or adminis­
tering agencies in the Philadelphia area, will de­
termine the definite standards to be included in the 
invitation for bids or other solicitation used for every 
Federally-involved construction contract in the Phila­
delphia area, when the estimated total cost of the 
construction project exceeds $500,000. Such definite 
standards shall specify the range of minority man­



7a

power utilization expected for each of the designated 
trades to be used during the performance of the 
construction contract. To be eligible for the award 
of the contract, the bidder must, in the affirmative 
action program submitted with his bid, set specific 
goals of minority manpower utilization which meet 
the definite standard included in the invitation or 
other solicitation for bids unless the bidder partici­
pates in an affirmative action program approved by 
OFCC.

b. Specific Goals.—  (1) The setting of goals by 
contractors to provide equal employment opportunity 
is required by Section 60-1.40 of the Regulations of 
this Office (41 CFR § 60-1.40). Further, such volun­
tary organizations of businessmen as Plans for Prog­
ress have adopted this sound approach to equal op­
portunity just as they have used goals and targets 
for guiding their other business decisions. (See the 
Plans for Progress booklet Affirmative Action Guide­
lines on page 6.)

(2 ) The purpose of the contractor’s commitment 
to specific goals is to meet the contractor’s affirmative 
action obligation and is not intended and shall not be 
used to discriminate against any qualified applicant 
or employee.

c. Factors Used in Determining Definite Stand­
ards.— A determination of the definite standard of 
the range of minority manpower utilization shall be 
made for each better-paid trade to be used in the 
performance of the contract. In determining the 
range of minority manpower utilization that should



8a

result from an effective affirmative action program, 
the factors to be considered will include, among oth­
ers, the following:

(1 ) The current extent of minority group par­
ticipation in the trade.

(2 ) The availability of minority group persons 
for employment in such trade.

(3 ) The need for training programs in the area 
and/or the need to assure demand for those in or 
from existing training programs.

(4 ) The impact of the program upon the existing 
labor force.

5{C % ♦  *



9a

U.S. DEPARTM ENT OF LABOR
Office  of t h e  A ssista n t  Secretary , 
Washington, D.C., September 23, 1969.

Order

To: Heads o f all agencies.

From: Arthur A. Fletcher, Assistant Secretary for 
Wage and Labor Standards, John L. Wilks, Di­
rector, Office o f Federal Contract Compliance.

Subject: Establishment of Ranges for the Imple­
mentation of the Revised Philadelphia Plan for 
Compliance with Equal Employment Opportunity 
Requirements of Executive Order 11246 for 
Federally-Involved Construction.

1. Purpose

The purpose of this Order is to implement Section 
6 of the Order issued on June 27, 1969 by Assistant 
Secretary o f Labor Arthur A. Fletcher to the Heads 
of Agencies outlining a “ Revised Philadelphia Plan 
for Compliance with Equal Employment Opportunity 
Requirements of Executive Order 11246 for Feder­
ally-Involved Construction.”  Section 6 o f the June 
27 Order provides for the determination o f definite 
standards in terms of ranges o f minority manpower 
utilization. This Order also affirms and in certain re­
spects amends the Order of June 27.



10a
2. Background

The June 27 Order requires a bidder on Federal 
or Federally-assisted construction in the Philadelphia 
area on projects whose cost exceeds $500,000 to sub­
mit an acceptable affirmative action program which 
shall include specific goals o f minority manpower 
utilization within the ranges to be established by the 
Deparment o f Labor, in cooperation with the Federal 
contracting and administering agencies in the Phila­
delphia Area, within the following 7 listed classifica­
tions :

Iron workers
Plumbers, pipefitters
Steamfitters
Sheetmetal workers
Electrical workers
Roofers and water proofers
Elevator construction workers

Since that time the Department has determined 
that minority craftsmen may be adequately repre­
sented in the classification and title “ roofers and 
water proofers” . For this reason, such classification 
is hereby temporarily excepted from the provisions 
o f the “ Revised Philadelphia Plan,”  subject to fu r­
ther examination of that trade.

Pursuant to a notice of hearing issued on August 
16, 1969, representatives of the Department of Labor 
conducted a public hearing in Philadelphia on August 
26, 27, and 28, 1969 for the purpose of obtaining in­
formation and data relevant to the establishment of 
ranges for the purposes o f effectuating the above-



11a

referred to June 27, 1969 Order. Section 6 of such 
Order provides that the following factors among 
others, will be used in establishing these ranges:

(a ) The current extent of minority group partici­
pation in the trade.

( b) The availability of minority group persons for 
employment in such trade.

(c ) The need for training programs in the area 
and/or the need to assure demand for those in or 
from existing training programs.

(d) The impact of the program upon the existing 
labor force.

Having reviewed the record o f that hearing and 
additional relevant data gathered and complied by the 
Department o f Labor, the following findings and 
Order are made as contemplated by the Order of 
June 27, 1969.

3. Findings

(a) Minority Participation in the Specified Trades

The over-all construction industry in the five county 
Philadelphia area has a current minority represen­
tation of employees o f 30% . Comparable skilled 
trades, excluding laborers, have a minority represen­
tation of approximately 12% . The construction 
trades in the Philadelphia area have grown and devel­
oped under similar conditions concerning manpower 
availability and under identical economic and cul­
tural circumstances. Despite that fact, there are 
few  minorities in the above-designated six trades.



12a

The evidence adduced at the public hearing indicates 
that the minority participation in such trades is 
approximately 1% . In the June 27 Order, it was 
found that such a low rate o f participation is due 
to the traditional exclusionary practices o f these 
unions in admission to membership and apprentice­
ship programs and failure to refer minorities to jobs 
in these trades. The most reliable data available 
relates to minority participation in membership in 
the unions representing employees in the six trades. 
That data reveals the following:

(1 ) Iron Workers.— The total union membership 
in this craft in the Philadelphia area in 1969 is 850, 
12 o f whom (1 .4% ) are minority group representa­
tives.

(2 ) Steam fitters.— Total union membership in the 
Philadelphia area in 1969 stands at 2,308, 13 of 
whom (.6 5% ) are minority group representatives.

(3 ) Sheetmetal Workers.— Total union member­
ship in the Philadelphia area in 1969 stands at 1,688, 
17 of whom (1 % ) are minority group representa­
tives.

(4 ) Electricians.— Total union membership in the 
Philadelphia area in 1969 stands at 2,274, 40 of whom 
(1 .76% ) are minority group representatives.

(5 ) Elevator construction workers.— Total union 
membership in the Philadelphia area in 1969 stands 
at 562, 3 o f whom (.54% ) are minority group repre­
sentatives.



13a

(6 ) Plumbers & Pipefitters.— Total union mem­
bership in the Philadelphia area in 1969 stands at 
2,335, 12 o f whom (.51% ) are minority group repre­
sentatives.

Based upon these figures it is found and deter­
mined that the present minority participation in the 
six named trades is far below that which should have 
reasonably resulted from participation in the past 
without regard to race, color and national origin and, 
further, that such participation is too insignificant 
to have any meaningful bearing upon the ranges es­
tablished by this Order.

(6 ) Availability of Minority Group Persons 
for Employment

The nonwhite unemployment rate in the Philadel­
phia area is approximately twice that for the labor 
force as a whole and the total number o f nonwhite 
persons unemployed is approximately 21,000. There 
is also a substantial number o f persons in the non­
white labor force who are underemployed. Testimony 
adduced at the hearing indicates that there are be­
tween 1,200 and 1,400 minority craftsmen presently 
available for employment in the construction trades 
who have been trained and/or had previous work ex­
perience in the trades. In addition it was revealed 
at the hearing that there is a pool o f 7,500 minority 
persons in the Laborers Union who are working side 
by side with journeymen in the performance of their 
crafts in the construction industry. Many of these



14a

persons are working as helpers to the journeymen in 
the designated trades. Also, testimony at the hearings 
established, that between 5,000 and 8,000 prospective 
minority craftsmen would be prepared to accept 
training in the construction crafts within a year’s 
time if  they would be assured that jobs were avail­
able to them upon completion o f such training.

Surveys conducted by agencies of the U.S. Depart­
ment o f Labor have provided additional information 
relative to the availability o f minority group persons 
for  employment in the designated trades.

Based upon the number o f minority group persons 
employed in the designated trades for all industries 
(construction and non-construction) and those mi­
nority group persons who are unemployed but quali­
fied for employment in the designated trades, a sur­
vey by the Manpower Administration indicated that 
minority group persons are now in the area labor 
market as follows:

Identification of trades
Number
available

Ironworkers..................................................................  302
Plumbers, pipefitters and steamfitters ____ _______ 797
Sheetmetal workers .............................     250
Electrical workers ..............        745

A  survey by the Office o f Federal Contract Com­
pliance indicated that the following number o f minor­
ity persons are working in the designated trades and 
those who will be trained by 1970 by major Philadel­
phia recruitment and training agencies and those



15a

working in related occupations in non-construction 
industries who would be qualified for employment in 
the designated trades with some orientation or mini­
mal training:

Identification of trades
Number
available

Ironworkers.............................................     75
Plumbers, pipefitters ....................    500
Steamfitters .....       300
Sheetmetal workers ...............   375
Electrical workers .....       525
Elevator constructors .........    43

Based upon this information it is found that a sub­
stantial number of minority persons are presently 
available for productive employment.

(c) The Need for Training

Testimony at the public hearing revealed that there 
is a need for training programs for willing minority 
group persons at various levels of skill. Such training 
must necessarily range from pre-apprenticeship train­
ing programs through programs providing incidental 
training for skilled craftsmen who are near the 
brink of full journeyman status.* As discussed 
above, between 5,000 and 8,000 minority group per­
sons are in a position to be recruited for such train­
ing within a year’s time.

* Testimony adduced at the hearings indicates that the tra­
ditional duration of training to develop competent workmen 
in the crafts may be longer than necessary to successfully 
perform substantial amounts of craft level work.



16a

Testimony at the public hearings revealed the ex­
istence o f several training programs which have op­
erated successfully to train a number of craftsmen 
many of whom are now prepared to enter the trades 
in the construction industry. In order to further 
assure the availability of necessary training pro­
grams, the Manpower Administration of this De­
partment has committed substantial funds for the 
development o f additional apprenticeship outreach 
programs and journeyman training programs in the 
Philadelphia area. It plans to double the present ap­
prenticeship outreach program with the Negro Union 
Leadership Council in Philadelphia. Presently, this 
program is funded for $78,000 to train seventy per­
sons. An additional $80,000 is being set aside to 
expand this program. In addition, immediate explora­
tion of the feasibility o f a journeyman-training pro­
gram for approximately 180 trainees will be under­
taken. Both these programs will be directed spe­
cifically to the designated trades.*

(d) The Impact of the Program Upon 
the Existing Labor Force

A national survey of the Bureau of Labor Sta­
tistics indicates that the present annual attrition 
rate of construction trade membership due to re­
tirement is 2.5% per year based upon a total work­

* Memorandum from Arnold R. Weber, Assistant Secretary 
for Manpower to Arthur A. Fletcher, Assistant Secretary for 
Wage and Labor Standards, dated September 18, 1969.



17a

ing life of 44 years per employee in each of the above- 
designated trades.

Based on national actuarial rates for the construc­
tion industry published by the National Safety Coun­
cil, the average disability occurrence rate resulting 
from death or injury is 1% per year. A  conserva­
tive estimate of the average rate at which employees 
leave construction crafts for all reasons other than 
death, disability and retirement is 4% per year.

Therefore, each construction craft should have ap­
proximately 7.5% new job openings each year with­
out any growth in the craft. The annual growth 
in the number of employees in each craft designated 
under this ‘ ‘Revised Philadelphia Plan”  has been and 
is projected to be as follows:

(1 ) Iron Workers.— The average annual growth 
rate since 1963 has been approximately 10%. It is 
projected that an average growth rate in employ­
ment will be 3.69% in the near future.*

(2 ) Plumbers and Pipefitters.— The average an- 
nal growth rate since 1963 has been approximately 
7.38%. It is projected that an average annual growth 
rate in employment will be 2.9% in the near future.

(3 ) Steam fitters.— The average annual growth 
rate since 1963 has been approximately 2.63% and

* Projections of the annual growth rate in employment in 
the designated trades is based on a study by the Common­
wealth of Pennsylvania, Department of Labor and Industry, 
Bureau of Employment Security, entitled 1960 Census and 
1970, 1975 Projected Total Employment.



18a

is projected to be approximately 2.5% for each of 
the next four years.

(4 ) Sheetmetal workers.— The average annual 
growth rate since 1963 has been approximately 2.06% 
and is projected to be approximately 2.0% for each 
of the next four years.

(5 ) Electricians.— The average annual growth 
rate since 1963 has been approximately 4.98%. It is 
projected that an average annual growth rate in em­
ployment will be 2.2% in the near future.

(6 ) Elevator Construction Workers.— The average 
annual growth rate since 1963 has been approxi­
mately 2.41% and is projected to be approximately 
2.1% for each of the next four years.

Adding the rate of jobs becoming vacant to attri­
tion to the rate o f new jobs due to growth, the total 
rate of new jobs projected for each craft is as fol­
lows:

Annual vacancy
Identification of trade rate (percent)

Ironworkers ........  11.2
Plumbers and pipefitters .............    10.4
Steamfitters ...................................... ....................-....... 10
Sheetmetal workers ...........................................   9.5
Electrical w orkers................................................... —. 9.7
Elevator construction workers...............................—. 9.6

Therefore, it is found and determined that a con­
tractor could commit to minority hiring up to the 
annual rate o f job vacancies for each trade without 
adverse impact upon the existing labor force.



19a

(e) Timetable

In an effort to provide practical ranges which can 
be met by employers in hiring productive trained mi­
nority craftsmen, this Order should be developed to 
cover an extensive period of time.

The average length of Federally-involved construc­
tion projects in the Area is between 2 and 4 years. 
Testimony at the hearing indicated that a 4 year dur­
ation for the “ Plan”  is proper.

Therefore, it is found and determined that in 
order for this Order to effect equal employment to 
the fullest extent, the standards of minority man­
power utilization should be determined for the next 
four years.

( / )  Conclusion of Findings

It is found that present minority participation in 
the designated trades is far below that which should 
have reasonably resulted from participation in the 
past without regard for race, color, or national origin 
and, further, that such participation is too insignifi­
cant to have any meaningful bearing upon the ranges 
established by this Order.

It is found that a significant number of minority 
group persons is presently available for employment 
as journeymen, apprentices, or other trainees.

It is found that there is a need for training pro­
grams for willing minority group persons at various 
levels of skills. There exist several training pro­
grams in the Philadelphia area which have operated 
successfully to train craftsmen prepared to enter the



20a

construction industry and, in addition, the Man­
power Administration o f this Department has com­
mitted substantial funds for the development of other 
apprenticeship outreach programs and journeyman 
training programs in the Philadelphia area.

Finally, it is found that a contractor could com­
mit himself to hiring minority group persons up to 
the annual rate o f job vacancies for  each trade with­
out adverse impact upon the existing labor force in 
the designated trades.

Based upon these findings, a range shall be estab­
lished by this Order which shall require contractors 
to establish employment goals between a low range- 
figure which could result in approximately 20% of 
the work force in each designated trade being mi­
nority craftsmen at the end of the fourth year cov­
ered by this Order.*

In addition, training and trainable minority per­
sons are or shall be available in numbers sufficient 
to fill the number of jobs covered by these ranges, 
there being 1200 to 1400 minority persons who have 
had training and 5000 to 8000 prepared to accept 
training within a year.

Such minority representation can be accomplished 
without adversely affecting the present work force.

* Assuming the same proportion of minorities are employed 
on private construction projects as Federally-involved proj­
ects, the lower range should result in 2,000 minority crafts­
men being employed in the construction industry in the Phila­
delphia area by the end of the fourth year.



21a

Based upon the projected Annual Vacancy Rate, the 
lower range figure may be met by filling vacancies 
and new jobs approximately on the basis of one mi­
nority craftsman for each non-minority craftsman.*

J. Order

Therefore, after full consideration and in light 
of the foregoing, be it Ordered: That the Order of 
June 27, 1969 entitled “ Revised Philadelphia Plan 
for Compliance with Equal Employment Opportunity 
Requirements of Executive Order 11246 for Fed­
erally-Involved Construction”  is hereby implemented, 
affirmed, and in certain respects amended, this Order 
to continue a supplement thereto as required and 
contemplated by said Order of June 27, 1969.

Further ordered: That the following ranges are 
hereby established as the standards for minority man­
power utilization for each of the designated trades 
in the Philadelphia area for the next four years:

Range of minority groups employ-
identification of trade ment until December 31, 1970

Ironworkers.............................................  5 percent to 9 percent.1
Plumbers and pipefitters.......................  5 percent to 8 percent.
Steamfitters.............................................. 5 percent to 8 percent.
Sheetmetal workers ...............................  4 percent to 8 percent.
Electrical workers ............................. -  4 percent to 8 percent.
Elevator construction workers .............  4 percent to 8 percent.

1 The percentage figures have been rounded.

* The one for one ratio in hiring has been judicially recog­
nized as a reasonable, if not mandatory, requirement to 
remedy past exclusionary practices. Vogler v. McCarty, Inc., 
294 F. Supp. 368 (E.D. La. 1967).



22a

Range of minority groups employ- 
identification of trade ment for calendar year 1971 2

Ironworkers ............................................ 11 percent to 15 percent.
Plumbers and pipefitters ...................  10 percent to 14 percent.
Steamfitters...........................................  11 percent to 15 percent.
Sheetmetal workers ........................ . 9 percent to 13 percent.
Electrical workers ...............................  9 percent to 13 percent.
Elevator construction workers ...........  9 percent to 13 percent.

2 After December 31, 1970 the standards set forth herein 
shall be reviewed to determine whether the projections on which 
these ranges are based adequately reflect the construction labor 
market situation at that time. Reductions or other significant 
fluctuations in federally involved construction shall be specifi­
cally reviewed from time-to-time as to their effect upon the 
practicality of the standards. In no event, however, shall the 
standards be increased for contracts after bids have been re­
ceived.

Range of minority groups employ- 
identification of trade ment for the calendar year 1972

Ironworkers...........................................  16 percent to 20 percent.
Plumbers and pipefitters ...................  15 percent to 19 percent.
Steamfitters...........................................  15 percent to 19 percent.
Sheetmetal workers ...........................  14 percent to 18 percent.
Electrical workers ...............................  14 percent to 18 percent.
Elevator construction workers...........  14 percent to 18 percent.

Range of minority groups employ- 
identification of trade ment for the calendar year 1973

Ironworkers...........................................  22 percent to 26 percent.
Plumbers and pipefitters ...................  20 percent to 24 percent.
Steamfitters...........................................  20 percent to 24 percent.
Sheetmetal workers ...........................  19 percent to 23 percent.
Electrical workers ...............................  19 percent to 23 percent.
Elevator construction workers...........  19 percent to 23 percent.

*  *  * * *



23a

APPENDIX B

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION

AFFIRM ATIVE ACTION GUIDELINES
% ŝ : *  *

1608.3 Circumstances Under W hich  V oluntary 
A ffirmative A ction Is A ppropriate

(a ) Adverse Effect
Title VII prohibits practices, procedures, or poli­

cies which have an adverse impact unless they are 
justified by business necessity. In addition, Title VII 
proscribes practices which “ tend to deprive”  persons 
of equal employment opportunities. Employers, labor 
organizations and other persons subject to Title VII 
may take affirmative action based on an analysis 
which reveals facts constituting actual or potential 
adverse impact, if  such adverse impact is likely to 
result from existing or contemplated practices.

(b ) Effects of Prior Discriminatory Practices 
Employers, labor organizations, or other persons

subject to Title VII may also take affirmative action 
to correct the effects of prior discriminatory practices. 
The effects of prior discriminatory practices can be 
initially identified by a comparison between the em­
ployer’s work force, or a part thereof, and an ap­
propriate segment of the labor force.

(c ) Limited Labor Pool
Because of historic restrictions by employers, labor 

organizations, and others, there are circumstances in



24a

which the available pool, particularly of qualified 
minorities and women, for employment or promo­
tional opportunities is artificially limited. Employers, 
labor organizations, and other persons subject to Title 
VII may, and are encouraged to take affirmative ac­
tion in such circumstances, including, but not limited 
to, the following:

(i)  training plans and programs, including on- 
the-job training, which emphasize providing 
minorities and women with the opportunity, 
skill, and experience necessary to perform 
the functions o f skilled trades, crafts, or 
professions;

(ii) extensive and focused recruiting activity;

(iii) elimination o f the adverse impact caused by 
unvalidated selection criteria (see sections 3 
and 6, Uniform Guidelines on Employee Se­
lection Procedures (1978), 43 F.R. 38,290; 
38,297; 38,299 (August 25, 1 9 7 8 ));

(iv ) modification through collective bargaining 
where a labor organization represents em­
ployees, or unilaterally where one does not, 
o f promotion and layoff procedures.

1608.4 E stablishing A ffirmative A ction Plans

An affirmative action plan or program under this 
section shall contain three elements: a reasonable 
self analysis; a reasonable basis for concluding action 
is appropriate; and reasonable action.



( a) Reasonable Self Analysis
The objective o f a self analysis is to determine 

whether employment practices do, or tend to, exclude, 
disadvantage, restrict, or result in adverse impact 
or disparate treatment of previously excluded or re­
stricted groups or leave uncorrected the effects of 
prior discrimination, and if  so, to attempt to de­
termine why. There is no mandatory method of con­
ducting a self analysis. The employer may utilize 
techniques used in order to comply with Executive 
Order No. 11246, as amended, and its implementing 
regulations, including 41 C.F.R. Part 60-2 (known 
as Revised Order 4 ), or related orders issued by the 
Office o f Federal Contract Compliance Programs or 
its authorized agencies, or may use an analysis similar 
to that required under other Federal, state, or local 
laws or regulations prohibiting employment discrimi­
nation. In conducting a self analysis, the employer, 
labor organization, or other person subject to Title 
VII should be concerned with the effect on its em­
ployment practices of circumstances which may be 
the result of discrimination by other persons or in­
stitutions. See Griggs v. Duke Power Co., 401 U.S. 
424 (1971).

(b) Reasonable Basis
I f the self analysis shows that one or more em­

ployment practices: (1 ) have or tend to have an ad­
verse effect on employment opportunities of members 
of previously excluded groups, or groups whose em­
ployment or promotional opportunities have been

25a



26a

artificially limited, (2 ) leave uncorrected the effects 
of prior discrimination, or (3 ) result in disparate 
treatment,-the person making the self analysis has a 
reasonable basis for concluding that action is ap­
propriate. It is not necessary that the self analysis 
establish a violation o f Title VII. This reasonable 
basis exists without any admission or formal finding 
that the person has violated Title VII, and without 
regard to whether there exist arguable defenses to 
a Title VII action.

(c ) Reasonable Action
The action taken pursuant to an affirmative action 

plan or program must be reasonable in relation to the 
problems disclosed by the self analysis. Such reason­
able action may include goals and time-tables or other 
appropriate employment tools which recognize the 
race, sex, or national origin of applicants or em­
ployees. It may include the adoption o f practices 
which will eliminate the actual or potential adverse 
impact, disparate treatment, or effect o f past dis­
crimination by providing opportunities for members 
o f groups which have been excluded, regardless of 
whether the persons benefited were themselves the 
victims o f prior policies or procedures which produced 
the adverse impact or disparate treatment or which 
perpetuated past discrimination.

(1 ) Illustrations of Appropriate Affirmative Action
Affirmative action plans or programs may include, 

but are not limited to, those described in the



27a

Equal Employment Opportunity Coordinating Coun­
cil “ Policy Statement on. Affirmative Action Pro­
grams for State and Local Government Agencies,” 
41 F.R. 38,814 (September 24, 1976), reaffirmed and 
extended to all persons subject to Federal equal em­
ployment opportunity laws and orders, in the Uni­
form Guidelines on Employee Selection Procedures 
(1978) 43 F.R. 38,290, 38,300, 38,308-38,309 (Aug. 
25, 1978). That statement reads, in relevant part:

When an employer has reason to believe that 
its selection procedures have . . . exclusionary 
effect . . ., it should initiate affirmative steps to 
remedy the situation. Such steps, which in de­
sign and execution may be race, color, sex or 
ethnic ‘conscious,’ include, but are not limited to, 
the following:

The establishment of a long term goal and 
short range, interim goals and timetables 
for the specific job classifications, all of 
which should take into account the avail­
ability of basically qualified persons in the 
relevant job market;

A  recruitment program designed to attract 
qualified members of the group in question;

A  systematic effort to organize work and 
re-design jobs in ways that provide oppor­
tunities for persons lacking ‘journeyman’ 
level knowledge or skills to enter and, with 
appropriate training, to progress in a ca­
reer field;



28a

Revamping selection instruments or proce­
dures which have not yet been validated in 
order to reduce or eliminate exclusionary 
effects on particular groups in particular 
job classifications ;
The initiation of measures designed to as­
sure that members of the affected group who 
are qualified to perform the job are included 
within the pool o f persons from which the 
selecting official makes the selection;
A  systematic effort to provide career ad­
vancement training, both classroom and on- 
the-job, to employees locked into dead end 
jobs; and
The establishment of a system for regularly 
monitoring the effectiveness of the particu­
lar affirmative action program, and proce­
dures for making timely adjustments in this 
program where effectiveness is not demon­
strated.

(2 ) Standards of Reasonable Action
In considering the reasonableness of a particular 

affirmative action plan or program, the Commission 
will generally apply the following standards:

(A ) The plan should be tailored to solve the 
problems which were identified in the self 
analysis, see 1608.4(a), supra, and to ensure 
that employment systems operate fairly in the 
future, while avoiding unnecessary restrictions 
on opportunities for the workforce as a whole.



29a

The race, sex, and national origin conscious pro­
visions of the plan or program should be main­
tained only so long as is necessary to achieve 
these objectives.

(B ) Goals and timetables should be reasonably 
related to such considerations as the effects of 
past discrimination, the need for prompt elimi­
nation of adverse impact or disparate treatment, 
the availability of basically qualified or qualifi- 
able applicants, and the number of employment 
opportunities expected to be available.

% % sj«



30a

APPENDIX C

A ffirmative A ction Programs for State and 
Local Government A gencies

POLICY STATEMENT

The Equal Employment Opportunity Coordinating 
Council was established by Act of Congress in 1972, 
and charged with responsibility for developing and 
implementing agreements and policies designed, among 
other things, to eliminate conflict and inconsistency 
among the agencies of the Federal government re­
sponsible for administering Federal law prohibiting 
discrimination on grounds o f race, color, sex, religion, 
and national origin. This statement is issued as an 
initial response to the requests of a number of State 
and local officials for clarification of the Govern­
ment’s policies concerning the role of affirmative ac­
tion in the overall equal employment opportunity 
program. While the Coordinating Council’s adoption 
of this statement expresses only the views of the 
signatory agencies concerning this important sub­
ject, the principles set forth below should serve as 
policy guidance for other Federal agencies as well.

1. Equal employment opportunity is the law of 
the land. In the public sector of our society this 
means that all persons, regardless of race, color, re­
ligion, sex, or national origin shall have equal access 
to positions in the public service limited only by their 
ability to do the job. There is ample evidence in all 
sectors o f our society that such equal access fre­



31a

quently has been denied to members of certain groups 
because of their sex, racial, or ethnic characteristics. 
The remedy for such past and present discrimination 
is twofold.

On the one hand, vigorous enforcement of the laws 
against discrimination is essential. But equally, and 
perhaps even more important, are affirmative, volun­
tary efforts on the part of public employers to assure 
that positions in the public service are genuinely and 
equally accessible to qualified persons, without re­
gard to their sex, racial or ethnic characteristics. 
Without such efforts equal employment opportunity 
is no more than a wish. The importance of voluntary 
affirmative action on the part of employers is under­
scored by Title VII of the Civil Rights Act of 1964, 
Executive Order 11246, and related laws and regula­
tions— all o f which emphasize voluntary action to 
achieve equal employment opportunity.

As with most management objectives, a systematic 
plan based on sound organizational analysis and prob­
lem identification is crucial to the accomplishment of 
affirmative action objectives. For this reason, the 
Council urges all State and local government to de­
velop and implement results oriented affirmative ac­
tion plans which deal with the problems so identified.

The following paragraphs are intended to assist 
State and local governments by illustrating the kinds 
o f analyses and activities which may be appropriate 
for a public employer’s voluntary affirmative action 
plan. This statement does not address remedies im­
posed after a finding o f unlawful discrimination.



32a

2. Voluntary affirmative action to assure equal 
employment opportunity is appropriate at any stage 
of the employment process. The first step in the con­
struction of any affirmative action plan should be an 
analysis of the employer’s work force to determine 
whether percentages of sex, race or ethnic groups in 
individual job classifications are substantially similar 
to the percentages of those groups available in the 
work force in the relevant job market who possess 
the basic job related qualifications.

When substantial disparities are found through 
such analyses, each element of the overall selection 
process should be examined to determine which ele­
ments operate to exclude persons on the basis of sex, 
race, or ethnic group. Such elements include, but are 
not limited to, recruitment, testing, ranking, certi­
fication, interview, recommendations for selection, hir­
ing, promotion, etc. The examination of each ele­
ment of the selection process should at a minimum 
include a determination of its validity in predicting 
job performance.

3. When an employer has reason to believe that 
its selection procedures have the exclusionary effect 
described in paragraph 2 above, it should initiate 
affirmative steps to remedy the situation. Such steps, 
which in design and execution may be race, color, 
sex or ethnic “ conscious,”  include, but are not limited 
to, the following:

The establishment of a long term goal, and short 
range, interim goals and timetables for the specific



33a

job classifications, all of which should take into ac­
count the availability of basically qualified persons 
in the relevant job market ;

A  recruitment program designed to attract quali­
fied members of the group in question;

A  systematic effort to organize work and re-design 
jobs in ways that provide opportunities for persons 
lacking “ journeyman” level knowledge, or skills to 
enter and, with appropriate training, to progress in a 
career field;

Revamping selection instruments or procedures 
which have not yet been validated in order to reduce 
or eliminate exclusionary effects on particular groups 
in particular job classifications;

The initiation of measures designed to assure that 
members of the affected group who are qualified to 
perform the job are included within the pool of per­
sons from which the selecting official makes the 
selection;

A  systematic effort to provide career advancement 
training, both classroom and on-the-job, to employees 
locked into dead end jobs; and,

The establishment of a system for regularly moni­
toring the effectiveness of the particular affirmative 
action program, and procedures for making timely 
adjustments in this program where effectiveness is 
not demonstrated.

4. The goal of any affirmative action plan should 
be achievement of genuine equal employment oppor­
tunity for all qualified persons. Selection under such



34a

plans should be based upon the ability of the appli­
cant (s) to do the work. Such plans should not re­
quire the selection of the unqualified, or the uneeded, 
nor should they require the selection o f persons on the 
basis of race, color, sex, religion or national origin. 
Moreover, while the Council believes that this state­
ment should serve to assist State and local employers, 
as well as Federal agencies, it recognizes that affirma­
tive action cannot be viewed as a standardized pro­
gram which must be accomplished in the same way at 
all times in all places.

Accordingly, the Council has not attempted to set 
forth here either the minimum or maximum voluntary 
steps that employers may take to deal with their re­
spective situations. Rather the Council recognizes 
that under applicable authorities, State and local em­
ployers have flexibility to formulate affirmative ac­
tion plans that are best suited to their particular 
situations. In this manner, the Council believes that 
affirmative action programs will best serve the goals 
of equal employment opportunity.



35a

Respectfully submitted,

Harold R. Tyler, Jr.,
Deputy Attorney General and 

Chairman of the Equal 
Employment Coordinating 
Council.

Michael H. Moskow,
Under Secretary of Labor.
E thel Bent W alsh ,
Acting Chairman, Equal 

Employment Opportunity 
Commission.

Robert E. Hampton, 
Chairman, Civil Service 

Commission.
A rthur E. F lemming, 
Chairman, Commission on 

Civil Rights.

Because of its equal employment opportunity re­
sponsibilities under the State and Local Government 
Fiscal Assistance Act of 1972 (the revenue sharing 
act), the Department of Treasury was invited to 
participate in the formulation of this policy state­
ment; and it concurs and joins in the adoption of 
this policy statement.

Done, this 26th day of August 1976.

R ichard A lbrecht,
General Counsel, Department 

of the Treasury.



36a

APPENDIX D

Memorandum— Permissible Goals and T imetables 
in State and Local Government E mployment 
Practices

This Administration has, since September 1969, 
recognized that goals and timetables are in appropri­
ate circumstances a proper means for helping to im­
plement the nation’s commitments to equal employ­
ment opportunities through affirmative action pro­
grams. On the other hand, the concepts of quotas 
and preferential treatment based on race, color, na­
tional origin, religion and sex are contrary to the 
principles o f our laws, and have been expressly re­
jected by this Administration.

Title VII of the Civil Rights Act of 1964, as 
amended by the Equal Employment Opportunity Act 
of 1972, conferred on the Justice Department and 
the Equal Employment Opportunity Commission en­
forcement responsibilities for eliminating discrimina­
tory employment practices based upon race, color, 
national origin, religion, and sex by state and local 
government employers as set forth in that Act. In 
addition, under the Intergovernmental Personnel Act 
and the merit standards statutes, the Civil Service 
Commission has an obligation to attempt to move 
state and local governments toward personnel prac­
tices which operate on a merit basis. The Depart­
ment of Labor and other Executive Branch agencies 
have responsibilities in the area of equal employment 
opportunities as it affects state and local government



37a

employers. This memorandum addresses the question 
of how the agencies in the Executive Branch (e.g., 
CSC, EEOC, Justice, Labor and other Federal agen­
cies having equal employment opportunity respon­
sibilities) should act to implement the distinction be­
tween proper goals and timetables on the one hand, 
and impermissible quotas and preferences on the 
other, with due regard for the merit selection prin­
ciples which many states and local governments are 
obliged to follow, and which some state and local 
government employers do not properly follow with 
regard to equal employment opportunities.

All of the agencies agree that there is no conflict 
between a true merit selection system and equal em­
ployment opportunities laws— because each requires 
nondiscrimination in selection, hiring, promotion, 
transfer and layoff, and each requires that such deci­
sions be based upon the person’s ability and merit, 
not on the basis of race, color, national origin, religion 
or sex. The problems arise when an employer pays 
only lip service to the concept o f merit selection, but 
in fact follows employment practices which discrim­
inate on the basis o f race, color, etc.

All o f the agencies recognize that goals and time­
tables are appropriate as a device to help measure 
progress in remedying discrimination. All agencies 
recognize that where an individual person has been 
found to be the victim of an unlawful employment 
practice as defined in the Act he or she should be 
given “ priority consideration”  for the next expected 
vacancy, regardless o f his relative “ ability ranking”



38a

at the time the new hire is made— this because absent 
the act o f discrimination, he or she would be on the 
job. All agencies also recognize that it may be ap­
propriate for a court to order an employer to make a 
good faith, nondiscriminatory effort to meet goals and 
timetables where a pattern of discriminatory employ­
ment practices has been found.

All agencies recognize the basic distinctions between 
permissible goals on the one hand and impermissible 
quotas on the other. Quota systems in the past have 
been used in other contexts as a quantified limitation, 
the purpose o f which is exclusion, but this is not its 
sole definition. A  quota system, applied in the employ­
ment context, would impose a fixed number or per­
centage which must be attained, or which cannot be 
exceeded; the crucial consideration would be whether 
the mandatory numbers of persons have been hired 
or promoted. Under such a quota system, that num­
ber would be fixed to reflect the population in the 
area, or some other numerical base, regardless o f the 
number of potential applicants who meet necessary 
qualifications. I f the employer failed, he would be 
subject to sanction. It would be no defense that the 
quota may have been unrealistic to start with, that 
he had insufficient vacancies, or that there were not 
enough qualified applicants, although he tried in good 
faith to obtain them through appropriate recruitment 
methods.

Any system which requires that considerations of 
relative abilities and qualifications be subordinated



39a

to considerations of race, religion, sex or national 
origin in determining who is to be hired, promoted, 
etc., in order to achieve a certain numerical position 
has the attributes of a quota system which is deemed 
to be impermissible under the standards set forth 
herein.

A  goal, on the other hand, is a numerical objective, 
fixed realistically in terms of the number o f vacancies 
expected, and the number o f qualified applicants avail­
able in the relevant job market. Thus, if  through no 
fault o f the employer, he has fewer vacancies than 
expected, he is not subject to sanction, because he is 
not expected to displace existing employees or to hire 
unneeded employees to meet his goal. Similarly, i f  he 
has demonstrated every good faith effort to include 
persons from the group which was the object o f dis­
crimination into the group being considered for selec­
tion, but has been unable to do so in sufficient num­
bers to meet his goal, he is not subject to sanction.

Under a system of goals, therefore, an employer is 
never required to hire a person who does not have 
qualifications needed to perform the job successfully; 
and an employer is never required to hire such an un­
qualified person in preference to another applicant 
who is qualified; nor is an employer required to hire 
a less qualified person in preference to a better quali­
fied person, provided that the qualifications used to 
make such relative judgments realistically measure 
the person’s ability to do the job in question, or other 
jobs to which he is likely to progress. The terms “ less



40a

qualified”  and “better qualified”  as used in this memo­
randum are not intended to distinguish among per­
sons who are substantially equally well qualified in 
terms of being able to perform the job successfully. 
Unlike quotas, therefore, which may call for  a pref­
erence for the unqualified over the qualified, or o f the 
less qualified over the better qualified to meet the 
numerical requirement, a goal recognizes that persons 
are to be judged on individual ability, and therefore 
is consistent with the principles o f merit hiring.

In some job classifications, in which the newly 
hired person learns on the job the skills required, 
and where there is no extensive education, expe­
rience or training required as prerequisite to success­
ful job performance, many applicants will possess the 
necessary basic qualifications to perform the job. 
While determinations of relative ability should be 
made to accord with required merit principles, where 
there has been a history of unlawful discrimination, if 
goals are set on the basis of expected vacancies and 
anticipated availability of skills in the market place, 
an employer should be expected to meet the goals if 
there is an adequate pool of qualified applicants from 
the discriminated against group from which to make 
selections; and if the employer does not meet the 
goal, he has the obligation to justify his failure.

Similarly, where an employer has purported to 
follow merit principles, but has utilized selection pro­
cedures which are in fact discriminatory and have



41a
not been shown validly to measure or ta predict job 
success (see, Griggs v. Duke Power Co., [3 EPD 
If 8137] 401 U.S. 424), there frequently is no valid 
basis presently available for ranking applicants ob­
jectively in order of the probabilities of success on the 
job. In such circumstances, all agencies agree that a 
public employer will be expected to devise or borrow 
a selection procedure which is as objective as possible 
and is likely to be proved valid and is not likely to 
perpetuate the effects of past discrimination; and to 
meet those goals which have been set on a vacancy 
basis. The selection procedure should be as objective 
and job related as possible, but until it has been 
shown to be valid for that specific purpose, it must 
be recognized that rank ordering does not necessarily 
indicate who will in fact do better on the job. Accord­
ingly, if the goal is not being met because of the in­
terim selection procedure, the procedure and other 
aspects of the affirmative action program may have 
to be revised. All agencies agree that use of such 
goals does not and should not require an employer 
to select on the basis of race, national origin, or sex 
a less qualified person over a person who is better 
qualified by objective and valid procedures. Where 
such procedures are not being utilized, valid selection 
procedures to determine who will in fact do better on 
the job should be established as soon as feasible in 
accordance with the principles set forth in para­
graphs 2 and 5 below.

With the foregoing in mind, the agencies agree that 
the following principles should be followed:



42a

1. Whenever it is appropriate to establish goals, 
the goals and timetables should take into account 
anticipated vacancies and the availability of skills 
in the market place from which employees should 
be drawn. In addition, where unlawful discrimina­
tion by the employer has been established, the cor­
rective action program, including the recruiting and 
advertising obligations and the short range hiring 
goals, should also take into account the need to cor­
rect the present effects of the employer’s past dis­
criminatory practices.

2. The goals should be reached through such re­
cruiting and advertising efforts as are necessary and 
appropriate, and the selection of persons only from 
amongst those who are qualified. A goal, unlike a 
quota, does not require the hiring of persons when 
there are no vacancies, nor does it require the hiring 
of a person who is less likely to do well on the job 
( “ less qualified” ) over a person more likely to do 
well on the job ( “ better qualified” ), under valid se­
lection procedures. When the standards for deter­
mining qualifications are invalid and not predictive 
of job success, valid selection procedures should be 
developed as soon as feasible. Where an employer 
has followed exclusionary practices, however, and has 
made little or no progress in eliminating the effects 
of its past discriminatory practices, the selection 
standards its proposes to utilize in determining who 
is “ qualified,”  or “ better qualified”  will be exam­
ined with care to assure that they are in fact valid



43a
for such purposes and do not perpetuate the effects 
of the employer’s past discrimination (i.e., which 
have as little discriminatory impact as possible under 
the circumstances) and do not raise artificial or un­
necessary barriers.

3. In no event does a goal require that an employer 
must in all circumstances hire a specified number of 
persons, because such a goal would in fact be a quota. 
It is, however, appropriate to ask a court to impose 
goals and timetables, including hiring goals, on an 
employer who has engaged in racial or ethnic exclu­
sion, or other unconstitutional or unlawful employ­
ment practices. The goals we seek in court, like those 
accepted voluntarily by employers, are subject to 
the limitations set forth in this memorandum.

4. As a general matter, relief should be provided 
to those persons who have been adversely affected 
as a consequence of the employer’s unlawfully dis­
criminatory practices. All agencies will continue to 
seek insofar as feasible to have persons who can show 
that they were injured by such practices restored to 
the position they would be in but for the unlawful 
conduct. In addition, all agencies will seek to have 
those persons who have been excluded from considera­
tion or employment because of such discriminatory 
practices allowed to compete for future vacancies on 
the basis of qualifications and standards no more 
severe than those utilized by the employer in selecting 
from the advantaged groups, unless the increased 
standards are required by business necessity. Such 
relief will be sought to prevent the erection o f un-



44a

necessary barriers to equal employment opportunities. 
Such relief will not preclude a public employer from 
adopting merit standards; nor will it preclude such 
an employer who has previously used invalid selection 
standards or procedures from developing and using 
valid, job related selection standards and procedures 
as contemplated by paragraphs 2 and 5 of this memo­
randum.

5. Where an employer has utilized a selection device 
which is itself unlawfully discriminatory, relief should 
be sought to prohibit the use of that and similar selec­
tion devices (i.e., devices which measure the same 
kinds of things) together with the development of an 
appropriate affirmative action plan which may include 
goals and timetables in accord with the principles set 
forth in this paper. In addition, we will ask the 
courts to permit the employer to select (or develop) 
and validate a job related selection procedure which 
will facilitate selections on the basis of relative 
ability to do the job. The speed with which such new 
selection devices can and should be developed and 
validated depends upon the facts and circumstances 
of each case.

Agencies with equal employment opportunity re­
sponsibilities should take actions in accordance with 
the principles outlined in this memorandum in order 
to assure a coordinated approach within the Execu­
tive Branch to eliminate discriminatory employment 
practices and their consequences.

☆  U. S. GOVERNMENT PRINTING OFFICE; 1979 286216 306