Memorandum on Pending Steel Consent Decree Litigation
Press Release
October 1, 1974

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Press Releases, Volume 6. Memorandum on Pending Steel Consent Decree Litigation, 1974. fbc3effb-ba92-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/95cdf1a4-a005-4d04-879a-3efe28bac498/memorandum-on-pending-steel-consent-decree-litigation. Accessed April 28, 2025.
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ayo CONSENT MEMORAN The NAACP Legal Defense and Educational Fund is asking the U. S. nt decr of Appeals for the Fifth Circuit to set aside the cons last April by nine maj nent. include and the gover: ent practices -- and back pay injunctive reli, atory employm amounting to about $30 million to compensate minority employees for past discrimination, Ostensibly, the agreement was intended to cover the steel hiring-and promotion obligations under Title VII of the Civil 1964. Purportedly, it solves all of the civil rights cla: thonsands of black. Hispania and women workers emploved since than 200 plants locat But civil rights advocates vie the decrees as illegal co which have thrown the future of Title VII suits into doubt; as exempting or limiting company and union liability ard unions to make a national The Legal Defense Fund, therefore, has asked the Fifth Circuit court te consider the question: Can federal of: icials bargain away the machinery established by Congress to end discrimination -- in return promises by employers and unions to stop breaking the law? The problem of substantial public importance, since th government within the st year has entered into simil a is volving hundreds of thousands of employees agreement: (nore) et The steel accord eneieusly is not an isolated phenomenon. For ten years, employes have tried unsuccessfully to make government lawsuits the exclusive remedy for employment litigation. And Congress repeatedly (in 1964 and again in 1972) rejected efforts to limit the carefully designed structure of independent remedies, recognizing that there should be several avenues of public and private redress. Consequently, it is understandable that steel negotiations were entered into by government and ind@ustry lawyers following an action such as Williamson v. Bethlehem Steel Corp., a case which on November 3, 1972 reaffirmed the right of minority employees to bring a private action for full relief after the government sued and obtained partial relief. ‘whe most compelling pressure to hammer out an industry-wide agreement, however, stemmed from Ford v. U. S. Steel, a case decided in early 1973. The Ford case was a series of interrelated lawsuits (consolidated by the district court in Birmingham) which included three actions brought by the Legal Defense Fund against U. S. Steel's Fairfield Works and the local and national steelworkers' unions. Following seven years of litigation by LDF lawyers, the district court outlawed separate lines of progression in seniority systems and awarded $201,000 in back pay to 61 black workers as compensation for past discrimination. The Justice Department also obtained similar injunctive relief for 3,000 other black employees in that same plant. But the Department. was unable to win back pay, whereupon LDF promptly intervened in that suit (more) =a and is seeking -- on appeal -- back pay which may amount to millions of dollars for the 3,000 workers. The legal principles established in Birmingham, plus the fact that the Legal Defense Fund was conducting litigation of a comparable nature against three other major steel companies on precisely the same issues, set the stage for the consent decrees. Im short, the industry was confronted by massive potential liabilities; it had little to gain by continuing a hard-line approach to litigation -- and a great deal to gain by negotiating consent decrees. “LF lawyers assert that, under the provisions of the decrees: 1) The steel companies have the power to offer each affected employee a cash settlement in return for a waiver of all prospective and accrued rights; or as expressed by the decrees: a release of "any claim ... resulting from any alleged violations ... of any equal employment opportunity laws." The Legal Defense Fund contends that the proposed waivers contravene public policy and are invalid because: They are prospective in nature and deprive employees of any relief if the defendants fail to remedy the effects of past discrimination. They require employees to waive their rights to maintain private litigation as a condition to receiving benefits under government litigation. They prevent employees from obtaining full monetary compensation for past discrimination. (more) cae 2) Three government agencies (the Justice Department, EFCC and the Labor Department) are obliged to advise the court that relief is unwarranted in any private action relating to "systemic" issues: i.e. to seniority systems, pattemsof employment, or minority recruitment policies Supposedly resolved by the decrees. Many of the critical decisions bearing on seniority rights and transfer procedures, however, will not be made until employees sign waivers Meanwhile, government lawyers will serve as a legal arm of employers and unions. +3) Those responsible for discriminatory employment practices will enforce the decrees which are supposed to end discrimination. As stipulated in the agreement, the decrees will be administered at each plant by Implementation Committees which, in turn, will be overseen by an Audit and Review Committee. Each of these committees will be dominated by representa- tives of the defending companies and unions. 4) Provisions for adequate judicial review are nonexistent. The agreement does not require the industry to provide information regarding compliance or the effectiveness of the decrees, either to the government or the court. If the government asks for and receives information from the companies, it in turn has no obligation to provide that information to the court. In short, the decrees are not designed to give the court information; instead they are designed to confer an absolute veto over what information the court can obtain. The agreement, moreover, is extraordinary in a number of other ways: (more) =5= * It was arrived at through government-industry negotiations which deliberately excluded representation of those discriminated against. It was then approved by the Northern District Court of Alabama in an in camera proceeding on April 12 without prior disclosure and with no opportunity for concerned parties to intervene. * Because the government must side with defending companies in any instance where plaintiffs ask for more relief than provided in the consent decrees, government has surrendered much of its future role. The decrees, moreover, do not purport to remedy individual acts of discrimination. If a man was fired prior to the consent decrees, and can prove he was fired for racial reasons, EEOC can no longer sue on his behalf even though, under Title VII, the government is obliged to provide legal assistance. + Before a worker's complaint gets referred to an Implementation Committee, it must contain the words, Decree Related. But there is no assur- ance that any worker will know anything about the committees, let alone the magic words. If the phrase is excluded, the complaint goes through normal employer-union contractual channels. + One major area of contention is the use of tests that are not relevant to job performance. The decrees do not get rid of a single discrim- inatory test. The companies and unions have pledged that they will stick to EEOC regulations on testing, which they are supposed to do anyway. + Goals and timetables for training and promotion to supervisory positions are based on the number of women and blacks presently employed (more) in the steel industry. Since women now represent less than one per cent of the work force, their participation will be relatively negligible. + Nobody can state what $30 million in back pay means in terms of 60-65,000 minority steel workers, or how the figure was arrived at. Is it an equitable figure, or is it inadequate when compared with back pay awards previously won in other steel actions? Shortly after the consent decrees were approved in the district court, the Legal Defense Fund filed a motion to intervene on behalf of all black steel Gores The Fund also represents 13,000 employees in other and separate actions against companies participating in the consent decrees. They are Republic Steel (Birmingham, Ala.), U. S. Steel (Fairfield, Ala.), Armco (Houston, Tex.), Republic Steel (Gadsden, Ala.), Bethlehem Steel (Sparrow Point, Md.), and U. S. Steel (Homestead, Pa.). Despite assertions by all parties that the agreement would not affect prior and pending actions, the decrees obviously are having an insidious effect adverse to the plaintiffs' positions. In some district courts, steel company lawyers are taking the position that the decrees solve all discrimination problems in the industry -- that the cases therefore are moot. They contend no relief should be awarded in pending steel cases because ali necessary relief is incorporated in the consent decrees. In the Legal Defense Fund's case against U. S. Steel’s Homestead plant, a district court judge in Pittsburgh employed the decrees as a reason for halting all action until January 15, 1975 so that the companies and unions (more) would be able to resolve the case under provisions of the consent decrees. The judge also prohibited the Fund's attorneys from discussing the agreement with a group of black workers who requested information about the decree and stopped all discovery, i.e. methods by which lawyers accumulate evidence for trial. The Fund's lawyers contend that the delay increases the likelihood that minority workers, without access to counsel, would be overreached and and suxrender their just claims to back pay in return for an offer representing only a ‘fraction of what they might otherwise obtain. The case has been appealed, and the U. S. Court of Appeals for the Third Circuit heard oral Er on “Octoner 24¢