United Steelworkers of America (AFL-CIO-CLC) v. Weber Brief Amici Curiae
Public Court Documents
January 31, 1979
Cite this item
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Brief Collection, LDF Court Filings. United Steelworkers of America (AFL-CIO-CLC) v. Weber Brief Amici Curiae, 1979. a244b4e2-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a436e922-1a20-42aa-8f12-76f75283a74a/united-steelworkers-of-america-afl-cio-clc-v-weber-brief-amici-curiae. Accessed April 27, 2025.
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IN THE
J^upronp GIxmrt nf th? Inifrb Stairs
October Term, 1978
No. 78-432
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,
Petitioner,
v.
BRIAN F. WEBER, et al.
No. 78-435
RAISER ALUMINUM & CHEMICAL CORPORATION,
Petitioner,
v.
BRIAN F. WEBER, et al.
No. 78-436
UNITED STATES OF AMERICA
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioners,
y.
BRIAN F. WEBER, et al.
ON WHIT OF CEBTIOEABI TO THE UNITED STATES COUET OF APPEALS
FOE THE FIFTH CIECUIT
BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., NATIONAL URBAN LEAGUE
AND HOWARD UNIVERSITY AS AMICI CURIAE
VERNON E. JORDAN, JR.
500 E. 62nd Street
New York, New York 10021
W ILEY A. BRANTON
THEODORE A. MILES
Howard University Law School
2935 Upton St., N.W.
Washington, D.C. 20005
JACK GREENBERG
JAMES H. NABRIT, H I
ERIC 3CHNAPPER
LOWELL JOHNSTON
PATRICK O. PATTERSON
KRISTINE S. KNAPLUND
CLYDE E. MURPHY
10 Columbus Circle
Suite 2030
New York, New York 10019
BARRY L. GOLDSTEIN
S06 15th St, N.W.
Suite 940
Washington, D.C. 20005
Attorneys for Amici Curiae
January 1979.
INDEX
Page
Table o f Authorities ................................. :............. i i i
Interest o f Amici ............ ....................................... 1
Summary o f Argument .................................................. 6
ARGUMENT
I. T itle VII Permits Employers and
Unions to Take Voluntary Race-
Conscious Affirm ative Action ............... 9
A. Legislative History: 1964 . . . . 9
3. Judicial and Executive
Interpretation: 1964-1972 . . . . 18
C. Legislative History: 1972 . . . . 21
D. EEOC Guidelines on Affirm ative
Action .............................................. 24
II . A Standard Permitting Employers
and Unions to Take Race—Conscious
Affirmative Action When They Have
a Reasonable 3asis To Do So Is
Consistent with T itle VII and the
Constitution ............................................. 23
A. An Employer or Union May
Take Race-Conscious Affirma
tive Action Where It Acts Upon
a Reasonable B elie f that Such
Action Is Appropriate .................. 28
B. An Action to Enforce Che Fifth
C ircu it 's Construction of
T it le VII Would. Not Present
a ’’Case or Controversy” ............... 41
C. The Fifth C ircuit Has Given
T itle VII an Unconstitutional
Construction ........................................ 49
III . This Affirm ative Action Plan Is
Permissible Under T itle V II................. 56
A. The Plan Was Properly
Instituted ....................................... 56
1. Kaiser's Prior Discrimina
tion .............................................. 58
2. M odification o f Kaiser's
Present Practices ................... 83
3. General Discrimination in
the Training and Development
of Craft Workers ..................... 89
4. Compliance with the
Executive Order ........................104
3. The Plan Was Properly
Designed ......................................... 107
1. The Plan ................................... 107
2. The Standard and Its
Application ............................... 112
CONCLUSION ................................................................... 122
TABLE OF AUTHORITIES
Adams v. Richardson, 351 F.Supp.
Cases:
PAGE
636-(D.D.C. 1972) ................................. 95
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ........................... passim
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ............................. 12,30
Associated General Contractors of
Mass., Inc. v. Altshuler,
361 F.Suop. 1293 (D.
Mass. 1973), a f f ’ d , 490 F.2d 9
(1st C ir .19 73 ) , c e r t . d en ied ,
416 U.S. 957 (1974) ............................. 107,115
Baker v. Carr, 369 U.S. 186
(1962) .............. 43
Barlow v. C ollins, 397 U.S.
159 ( 1970) ............................................. 44
Beaunamais v. I l l in o is , 343 U.S.'
250 (1952) ............................................. 62
3ollin g v. Sharpe, 347 U.S. 497
(1954) ...................................................... 50
Boston Chapter, N .A .A .C .P ., Inc., v .
Beecher, 504 F.2d 1017 (1st
Cir. 1974), c e r t . denied, 421 U.S.
910 (1975) ............................................. 23,114
- iii —
j
TABLE OF AUTHORITIES
♦ - __
Bridgeport Guardians, I n c . v . .
Bridgeport C iv il Service
Commission, 482 F.2d 1333
(2nd C ir. 1973), c e r t , denied,
421 U.S. 991 ( 1975) ........................... 115
3rown v. Board o f Education, 347
U.S. 438 (1954) ................................... 93
BurrelL v. Kaiser Aluminum & Chemical
Corp., Civ. Action Ho. 67-86
(M.D. La. Feb. 24, 1975)(concent
decree) ................................................. 33
3urrell v. Kaiser Aluminum &
Chemical Corp., 408 F.2d
339 (5th Cir. 1969), r e v 'g , 287
F.Supp. 289- (E.D. La. 1968) ............. 33
Carey v. Piohus, 55 L.Ed.2d 252
(1978)’ ...................................................... 49
Castaneda v. Partida, 430 U.S. 432
(1977) ............................................ 74>76
Chandler v. Roudebush, 425 U.S.
340 (1976) ............................................. 34
Chicago, e tc . R.R. v . Wellman, 143
U.S. 339 (1892) ................................... 47
Commonwealth of Pennsylvania v.
Local 542, Operating Engineers,
C ivil Action Ho. 71-2698 (E.D.
Pa. Hov. 30, 1978) ............................. 39
Cases:
PAGE
- iv -
Cases:
TABLE OF AUTHORITIES
'PAGE
Contractors A ssociation o f Eastern Penn
sylvania v . Secretary
of Labor, 442 F.2d 159 (3rd C ir .) ,
c e r t , denied, 404 U.S. 854
(1971) ..................................................... 21,107
Crockett v. Green, 534 F.2d 715
(7th Cir. 1976) ................................... 115
Dothard v. Rawlinson, 433 U.S. 321
(1977) .....................................................
EEOC v. A.T.& T. Co., 556 F.2d
167 (3rd Cir. 1977), cert, denied,
57 L.Ed.2d 1161 (1978) .....................
EEOC v. Detroit Edison Co., 515
F.2d 301 (6th Cir. 1975), vac'd
and rent'd on other grounds, 431
U.S. 951 ( 1977) ................................... 115
Emporium Capwell Co. v. Western
Addition Community Organi
zation, 420 U.S. 50 ( 1975) . . . ___ 120
Erie Human Relations Commission
v. T u llio , 493 F .2d 371
(3rd Cir. 1974) ................................... 115
Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ........................... 2, 17,49,120
Fumco Construction Corp. v.
Waters, 57 L .Ed.2d 957 ( 1978)........ 81
36,64, 72,
80, 83
115
j
Gascon County v. United Statesy
395 U.S. 285 (1969) ........................... 54, 55
General E lectric Co. v. G ilbert,
429 U.S/ 125 (1976) ........................... 26
Griggs v. Duke Power Co.
U.S. 424 (1971) ............................. . . . passim
Hazelwood School D istrict v. United
States, 433 U.S..299
(19 7 7) ...... ...............................................36 , 65 , 71,76
Hernandez v. Texas, 347 U.S. 475
(1954) ....................................................... 50
Hunter v. Erickson, 393 U.S. 385
(1969) ........................................................ 50,51
International Brotherhood of
Teamsters v. United States,
431 U.S. 324 ( 1977) . . ' ....................... 36,48 , 65 , 71
James v. Stockham Valves and
Fittings Co., 559 F.2d
310 (5th Cir. 1977), cert, denied,
434 U.S. 1034 (1978) .......................... 99
Keyes v. School D istrict No. 1,
413 U.S. 189 (1973) ............................ 62
Local 53, Asbestos Workers v.
Vogler, 407 F.2d 1047
(5th Cir. 1969) .................................... 18
TABLE OF AUTHORITIES
Cases:
'PAGE
- vi -
TABLE OF AUTHORITIES
Lord v. Veazie, 8 How. 251
(1850) ............ ^
Marchetti v. United States, 390
U.S. 39 (1968) ..................................... ^
McDaniel v. Barresi, 402 U.S.
39 ( 1971) ............................................... 32
McDonnell Douglas Corp. v. Green,
411 U.S. 792 ( 1973) ........................... 11,34
Moore v. East Cleveland, 431 U.S.
494 (1977) ............................... ' ............. 62
Moose Lodge No. 197 v. Irv is ,
407 U.S. 163 ( 1972) ........................... 54
Morrow v. C risler , 491 F.2d 1053
(5th C ir .) (en banc), cert, denied,
419 U.S. 895 ( 1974) ............................. H5
N.A.A.C.P. v. Allen, 493 F.2d 614 (5th
Cir. 1974) ............................................. 115
N.A.A.C.P. v. 3utton, 371 U.S. 415
(1963) ...................................................... 55
National League of C ities v.
Usery, 426 U.S. 833 (1976) ............... 55
NLRB v. Jones.St Laughlin Steel Corp.,
301 U.S. 1 ( 1937) .................................
Cases:
PAGE
- vii -
TABLE OF AUTHORITIES
North Carolina State Board o f
Education v. Swann, 402 U.S. 43
(1971) ..................................................... 49,51
Parson v. Kaiser Aluminum 4 Chemical
Corp., 575 F.2d 1374 (5th Cir.
1978) ........................................................ 32,71,79
Pettway v. American Cast Iron PiDe Co.,
494 F .2d 211 (5th Cir. 1974 ) ___ 99
Railway Mail Association v. Corsi,
326 U.S. 88 (1945) ........................... 51
Regents o f the University o f
C alifornia v. 3akke,
57 L.Ed.2d 750 (1978) ......................... passim
Rios v. Enterprise Association
Steamfitters Local 638, 501
F.2d 622 (2d Cir. 1974) ...................... 115
Robinson v. Union Carbide Corn.,
538 F.2d 652 (5th C ir. 1976) ........ 100
Roe v. Wade, 410 U.S. 113 (1973) ........ 62
Rowe v. General Motors Corp., 457
F.2d 348 (5th Cir. 1972) ................. 81
Sierra Club v. Morton, 405
U.S. 727 (1972) .................................. 44
Cases:
PAGE
- viii -
TABLE OF AUTHORITIES
Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S.
26 (1976) ............................................... 45
Sims v. Local 65, Sheet Metal Workers,
459 F .2d 1023 (6th C ir. 1973) ___ 115
Skidmore v. Swift & Co., 323 U.S.
134 (1944) ............................................. 26
Southern I l l in o is Builders Association
v. O gilvie, 471 F.2d 680 (7th
Cir. 1972) ............................................. 21,115
Stevenson v. International Paoer C o .,
516 F .2d 103 (5th Cir. 1975) ........ 100
Swift & Co. v. Hocking Valley R.R.
Co., 243 U.S. 281 (1917.) ............... 46
United Jewish Organizations v.
Carey, 430 U.S. 144 (1977)................. 105
United States v. Allegheny-Ludlum
Industries, In c ., 517 F.2d
826 (5th C ir .1975), cert, denied,
425 U.S 944 (1976) ............................. 116
United States v. Allegheny-
Ludlum Industries, In c .,
63 F.R.D. 1 (N.D. Ala. 1973) ........ 117
United States v. Bethlehem Steel
Coro., 446 F.2d 652 (2nd Cir.
1971) ........................................................ '100
United States v. Carolene
Products Co., 304 U.S. 144 (1938) . 62
Cases:
PAGE
- ix -
TABLE OF AUTHORITIES
Cases:
-------- PAGS
United States v. C ity o f Chicago,'
549 F .2d 415 (7th Cir. 1977),
ce rt- denied, 434 U.S, 875
(1978) .......... -......................................... 115
United States v. Ironworkers Local 86,
315 F.Supp. 1202 (W.D. Wash. 1970),
a ff*d , 443 F .2d 544 (9th C ir .) ,
cart, denied, 404 U.S 984 (1971).. L9
United States v. Johnson, 319 U.S.
302 (1943) ............................................. 47 ,4S
United States v. Local 38, IBEW, 428
F.2d 144 (6th C ir .) , c e r t , denied
400 U.S. 943 (1970) ........................... 18
United States v. Local 212, IBEW, 472
F.2d 634 (6th Cir. 1973) ................ 23,115
United States v. Masonry Contractors
Association, 497 F.2d 871 (6tn
. . Cir. 1974) ............................................. 115
United States v. N.L. Industries, In c.,
479 F .2d 354 (8th Cir. 1973) ........... 12,115
United States v. Sheet Mecal Workers
Local 36, 416 F.2d 123 (8th
Cir. 1969) ............................................. 19
United States v. Wood Lathers Local
46, 471 F.2d 408 (2d C ir .) ,
cart, denied, 412 U.S. 939
(1973) ..................................................... 19,115
United Steelworkers of America v.
American Manufacturing Co.,
363 U.S. 564 (1960) ............................. 119
- x -
Tags
V illage o f Arlington Heights v.
Metropolitan Housing Develop
ment Corp., 429 U.S. 252 (1972) . . . 88
Warth v. Seldin, 422 U.S. 490
(1975) ........................................................ 45
Washington v. Davis, 426 U.S. 229
(1976) ........................................................ 88
Watkins v. Scott Paper Co., 530
F.2d 1159 (5th C ir .) , cart, denied,
429 U.S. 861 (1976) ............................. 72
Constitutional Provisions, Statutes,
Executive Orders and Regulations:
United States Constitution, Fifth
Amendment .................................................. 50
United States Constitution,
Fourteenth Amendment ........................... 51,52,54
Equal Employment Opportunity Act of
1972, Pub. L. No. 92-261 ................... 21
Fugitive Slave Act, 121 Stat.
462, §7 ...................................................... 52
42 U.S.C.- §2000e, et seq. , T itle
VII o f the C iv il Rights Act
of 1964 ............................................. passim
La. Rev. Stat. Ann. §1996C ......................... 56
TABLE OF AUTHORITIES
Cases:
- x i -
TABLE OF AUTHORITIES
PAGE
Executive. Order No. 10,925, 3 C.F.R.
443 (1959-63 Comp.) . r ................. 106
Executive Order No. 11,246, 30 Fed.
Reg. 12319, as amended, 32
Fed. Reg. 14303..................................... passim
41 C.F.R. §60-2 (Revised Order
No. 4) ..................................................... 104-06
Equal Employment Opportunity
Commission, Uniform Guidelines on
Employee Selection Procedures,
43 Fed. Reg. 38290, 29 C.F.R.
Part 1607 (1978) ........................... . 28,85-86
Equal Employment Opportunity Com
mission, Guidelines on Affirm ative
Action, 44 Fed. Reg. 4422,
29 C.F.R. Part 1608 (1979) ............ passim
Equal Employment Opportunity
Coordinating Council, Policy
Statement on Affirmative Action
Programs for State and Local
Government Agencies, 41 Fed.
Reg. 38814 (1976) ............................... 28
Executive Decisions and Opinions:
EEOC Decision 74-106, 10 FEP Cases
269 (A pril 2, 1974) ........................... 27
EEOC Decision 75-268, 10 FEP Cases 1502
(May 30, 1975) ..................................... 23
- x i i -
TABLE OF AUTHORITIES
O ffice o f Che S o lic ito r , U.S. Department
o f Labor, Legal Memorandum, in Hearings
on The Philadelphia Plan and S.931 Before
the Subcomm. on Separation o f Powers o f
the Senate Comm, on the Judiciary, 91st
Cong., 1st Sess. 255 (1969) .......... 20
42 Opinion of Attorney General
Ho. 37 (Sept. 22, 1969) ................... 20
Legislative H istory:
110 Cong. Rec. 6549 (1964) ........................ 16
110 Cong. Rec. 7213 (1964) ........... 14,16
110 Cong. Rec. 9881-82 (1964) .................... 14-16
110 Cong. Rec. 12723 (1964) ...................... 15
113 Cong. Rec. 3460-63 (1972) .................. 22
Hearings on C iv il Rights 3efore
Subcomm. Ho. 5 o f the
House Comm, on the Judiciary,
88th Cong., 1st Sess. (1963) .......... 10
Hearings on Equal Employment
Opportunity 3efore the
General Subcomm. on Labor o f the
House Comm, on Education and
Labor, 88ch Cong. 1st Sess.
(1963) . . . .................................................... 9
PAGE
- xiii -
TABLE OF AUTHORITIES
Hearings on Equal Employment Oppor
tunity Before the Subcomm. on
Employment and Manpower o f the
Senate Comm, on Labor and Public
Welfare, 88th Cong., 1st Sess.
(1963) ..................................................... 10
H.R. Rep. No 914, 38th Cong., 1st
Sess. (1 9 6 3 ).......................................... 11,12
H.R. Rep. No. 92-238, 92d Cong.,
1st Sess. (1971) ................................... 22
S. Rep. No. 92-415, 92d Cong., 1st
Sess. (1971) ......................................... 22
Other A uthorities:
Adminstrative O ffice of the United States
Courts, 1976 Annual Report
o f the Director ................................... 34
’PAGE
Administrative O ffice of the United States
Courts, 1977 Annual Report o f
the Director ......................................... 35
Administrative O ffice of the United
States Courts, 1978 Annual Retort
o f the Director ................................... 35
Chayes, The Role o f the Judge in Public
Law L itiga tion , 89 Harv. L. Rev.
1281 (1976) ........................................... 61
Comment, The Philadelphia Plan: A
Study in the Dynamics o f
Executive Power, 39 U. Chi.
L. Rev. 723 (19 7 2) ............................. 20,23,41
- xiv -
TABLE OF AUTHORITIES
Committee on Government Contracts,
Pattern for Progress: Final
Report to President Eisenhower
. (1960) .................... . . ............................ 106
Equal Employment Opportunity Com
mission, Legislative History o f
T itles VII and XI o f C iv il Rights
Act o f 1964 ........................................... 11, 17
•PAGE
Equal Employment Opportunity Com
mission, Legislative History o f
the Equal Employment Opportunity
Act o f 1972 ........................................... 22
Finkelstein, The Application o f S ta t is t i -
*■ cal Decision Theory to the Jury
Discrimination Cases, 80 Harv.
L. Rev. 338 ( 1966) ............................. 76
Gould, 31ack Workers in White Unions,
(1977) 91
Hall, Black V oca tion a lT ech n ica l and
Industrial Arts Education
(.American Technical Society
1973) ....................................................... 93
H ill, 31ack Labor and the American Legal
Svstem: Race, Work and the Law
(1977) ..................................................... 91
Jones, The Bugaboo o f Employment
Quotas, 1970 Wis. L. Rev.
341 ..................................................................... 107
- xv -
TABLE OF AUTHORITIES
Karson and Radosh, "The American Federa
tion o f Labor and the Negro Worker,-
1894—1949," in The Negro and the
American Labor Movement (ed.
Jacobsen, Anchor 1968) ..................... 96
Marshall, The Negro and Organized
Labor ( 1965) ......................................... 91,94
PAGE
Marshall, "The Negro in Southern Unions,"
in The. Negro and the American Labor
Movement (ed. Jacobsen, Anchor
1968) ........................................... 96,99
Marshall and 3riggs, The Negro and
•Apprenticeship (1967) ....................... 91,98,102-
103
McPherson, The P o lit ica l History o f
Che United States o f America
During the Period o f Recon
struction (reprinted 1969) .............. 93
M osteiler, Rourke and Thomas,
Probability With S ta tis tica l
Applications (1970) ........................... 76
Myrdal, An American Dilemma (Harper
6 Row ed ., 1962) ............................... 91-93,96-
98,100
N.A.A.C.P. Legal Defense And Educa
tional Fund, In c ., Brief as
Amicus Curiae, No. 76-811 ............... 52
Northrup, Organized Labor and the
Negro (19 44) ....................................... 91,96-97,100
- xvi -
TABLE OF AUTHORITIES
PAGE
Sovem, Legal Restraints on Racial
Discrimination in Employment
(1966) .................................. 9,106
Spero and Harris, The Black Worker
(Atheneum ed. , 1968) ......................... 91-92
State Advisory Committee, United States
Commission on C iv il Rights,
50 States Report (1 9 6 1 ) ................... 95
tenBroek, Equal Under Law (1951) . . . . 52
United States Commission on C ivil
Rights, Employment (1961) ............... 94
United States Commission on C iv il
Rights, The Challenge Ahead
(1976) ...................................................... 98,103
United States Bureau of the Census,
Census o f Population: 1970 Vol. I ,
Characteristics o f the Popula
tion , Part 20, Louisiana (1973 ).. 67-68,73-74
Weaver, Negro Labor, A National
Problem (1946) ............................. 91,93-94,99,
101
Weinstein, 1 Evidence ............................... 62
Wright and Graham, Federal Practice
and Procedure (1977) ....................... 62
- x v il -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, L978
No. 78-432
UNITED STEELWORKERS OF AMERICA,
AFL-CIQ-CLC,
P etitioner,
v.
BRIAN F. WEBER, et a l.
No. 78-435
KAISER ALUMINUM & CHEMICAL CORPORATION,
Petitioner,
v. >
BRIAN F. WEBER, e t a l .
No. 78-436
UNITED STATES OF AMERICA
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
. Petitioners,
.. . v.
* 3RIAN F. WE3ER, et a l.
On Writ o f C ertiorari to Che United
States Court of Appeals for Che
Fifth C ircuit
BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE
AND EDUCATIONAL FUND, INC., NATIONAL
URBAN LEAGUE AND HOWARD UNIVERSITY
AS AMICI CURIAE
Interest o f Amici
The N .A .A .C .P. Legal Defense and Educa
tional Fund, In c ., is a non-profit corporation
- 2 -
established under Che laws o f Che State o f New
York.*- It was founded Co a ssist black persons to
secure their constitu tional and statutory rights
by the p rosecu tion o f la w su its . I ts ch arter
declares that its purposes include rendering legal
services gratuitously to black persons suffering
in ju stice by reason o f ra cia l discrim ination. For
many years attorneys o f the Legal Defense Fund
have represented parties in lit ig a tio n before this
Court and the lower courts involving a variety o f
race discrim ination issues regarding employment.
See, e . g . , Griggs v . Duke Power Co. , 401 U.S.
424 (1971); Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975); Franks v. Bowman Transportation Co. ,
424 U.S. 747 ( 1976). The Legal Defense Fund
believes that its 'experience in such lit ig a t io n
and Che research i t has performed w ill a ss is t the
Court in this case. The parties have consented to
the. f i l in g o f this b r ie f and le tters o f consent
have been file d with the Clerk.
The National Urban League, Incorporated, is a
charitable and educational organization organized
as a n o t -fo r -p ro fit corporation under the laws of
the State o f New York. For more than 69 years,
- 3 -
the League, and' its predecessors have addressed
them selves to the problems o f disadvantaged
m inorities in the United States by improving the
working conditions o f blacks and other m inorities,
and by fostering better race relations and increas
ing understanding among a ll persons.
Howard U niversity was e s ta b lish e d as a
private nonsectarian in stitu tion by Act o f Cong
ress on March 2, 1867. Since its inception, the
University has grown from 3Lx departments in 1867
to its present composition o f seventeen schools
and co lleg es . Nearly 40,000 students have rece iv
ed diplomas, degrees or ce r t if ica te s from Howard;
o f that t o t a l , w ell over 14,000 have rece ived
graduate and professional degrees. Throughout
th is-century o f growth, the unique mission o f Che
U n iversity has been supported in the main by
congressional appropriations. Since 1928 Howard
University, while remaining a private in stitu tion ,
has received continuous annual financia l support
from the federal government.— Today, the Uni-
1/ The Committee on Education commenting on the
b i l l to amend section 8 o f an act en titled "An Act
to incorporate the Howard Universicy. . . " stressed:
vers i c y 's land, bu ild in gs and equipment are
valued at: more than 150 m illion d ollars. Thus,
both the executive and leg is la tiv e branches are
sensitive to the need to maintain Howard as an
institution- in service to blacks.
y Cont1d
Apart from the precedent established by
45 years o f congressional action , the commit
tee fee ls that Federal aid to Howard Univer
s i t y is fu l ly ju s t i f ie d , by the n a tion a l
importance o f the Negro problem. For many
years i t has been f e l t that the American
people owed an o b lig a t io n to the Indian,
whom they d isp ossessed o f h is land, and
annual ap p rop ria tion s o f s iz a b le amounts
have been passed by Congress in fu lfillm ent
o f this o b lig a t io n ... .
'Moreover, f in a n c ia l a id has been and
s t i l l is extended by the Federal Government
to the so-ca lled land-grant colleges o f the
various S ta tes . While i t is true that
Negroes may be admitted to these co lleges,
the con d ition s o f adm ission are very much
restr icted , and generally i t may be said that
these colleges are not at a ll available to
the Negro, except fo r agricu l-tu ra l and
industrial education. This is particu larly
so in the professional medical schools, so
that the only class A school in America for
tra in in g co lo re d d o c to rs , d e n t is ts , and
- 5 -
Howard University has a unique in terest in
the resolution o f this case by the Supreme Court.
This case raises questions o f great importance
about the permissible scope o f voluntary affirm a
tive action under T it le VII. Affirmance o f the
lower c o u r t 's p r o s c r ip t io n against voluntary
in t i t a t iv e s w i l l c h i l l voluntary programs in
p a r t ic u la r and a ffirm a tiv e a ction g e n e ra lly .
1/ Cont' d
pharmacists is Howard University, it being
the only place where complete c l in ic a l work
can be secured by Che co lo re d student.
Committee on Education Report Accompanying
H.R. 8466 (1 9 2 6 ) . See a l s o , 14 S ta c .
1021 (1926).
SUMMARY OF ARGUMENT
I. In enacting T itle VII in 1964 Congress
n e ith er expressly approved nor ex p ress ly d i s
approved race-conscious e ffo rts to correct the
e ffe cts o f discriminatory p ractices. However,
subsequent ju d ic ia l d e c is io n s and execu tive
actions established char T itle VII permitted, and
in some circumstances required, the remedial use
o f race. In amending T itle VII in 1972 Congress
approved th is in te rp re ta t io n o f Che s ta tu te .
The Equal Employment Opportunity Commission's
Guidelines on Affirmative Action correctly cod i
fied this interpretation authorizing employers and
unions to adopt ra cia l preferences as remedial
measures where they have a reasonable basis for
that action.
I I . Race-conscious affirm ative action is
ju s t i f i a b le where an employer or union has a
reasonable basis fo r b e lie v in g that i t might
otherw ise be held in v io la t io n o f the law.
The employer or union need not admit nor prove
- 7 -
p r io r , d is cr im in a tio n , and i t may take ra ce -
con sciou s a ction to remedy the disadvantages
a ffectin g m inorities as a result o f discrim ination
by others. A more rig id standard — Like that
adopted by the m a jority o f the F ifth C ircu it
requiring proof or admission o f discriminatory
practices — wouLd largely eliminate voluntary
affirm ative action . Moreover, a lawsuit challeng
ing race-conscious action under that standard does
not present a case or controversy because i t is
noc in the in terest o f either lit ig a n t to prove
the central factual issue, prior discrim ination.
F inally, the Fifth C ircu it 's standard, i f accepted
by this Court, would raise serious questions as to
the con stitu tion a lity of T itle VII.
I I I . Kaiser and the Steelworkers properly
in s t itu te d a ra ce -con sc iou s plan because they
had a reasonable basis to b e lie v e that th e ir
c r a f t s e le c t io n p ra ct ice s had v io la te d , and
w ithout a ffirm a tiv e a ct io n would contin ue to
v io la t e , both T it le VII and E xecutive Order
11,246. Moreover, i t was appropriate and soc ia lly
re sp on sib le fo r Che Company and the Union to
design a program which would remedy some of the
e ffe cts o f decades o f discrim inatory practices by
employers, unions, and governmental bodies which
had denied training opportunities to blacks in the
sk illed cra fts .
The affirm ative action plan was proper since
i t expanded the employment opportunities o f a ll
workers, b lack and w h ite. The ra ce -con sc iou s
component o f the plan conformed, to p rov is ion s
which had been approved by courts and by adminis
tra tive agencies and was designed as an interim
measure which would terminate a fte r remedying the
discriminatory practices. F inally, i t resulted
from co lle c t iv e bargaining in which the interests
o f a ll the workers were represented and i t thus
furthered the p o l i c ie s fa vorin g the voluntary
r e s o lu t io n o f both la b or and d iscr im in a tion
disputes.
- 9 - '
ARGUMENT
I . TITLE VII PERMITS EMPLOYERS AND
UNIONS TO TAKE VOLUNTARY. RACE-
CONSCIOUS AFFIRMATIVE ACTION
A. Legislative History: L964
The CiviL Rights Act o f 1964 was Che f ir s t
comprehensive federal leg is la tion ever Co address
Che pervasive problem of discrim ination against
blacks in modem American society . See M. Sovern,
L egal R e s tr a in ts on R acia l D iscrim in ation in
Employment 8 (1 9 66 ). E xtensive hearings had
focused Che attention o f Congress on Che adverse
socia l and economic consequences o f discrim ination
2/against blacks in employment and ocher f ie ld s ,—
and when the House J u d icia ry Commictee issued
it s report on che b i l l which became Che C iv il
Rights Act o f 1964, i t c le a r ly sta ted chat a
primary o b je c t iv e o f the Act was to encourage
voluntary a ct ion to e lim in ate Che e f fe c t s o f
discrim ination against black c it izen s :
2/ See, e . g . , Hearings on Equal Employment
Opportunity Before the General Subcomm. on Labor
o f the House Comm, on Education and Labor, 88th
• - 10
La v a riou s , r e g io n s o f the co u n try
there is discrim ination against some minority
groups. Most g la r in g , however, is the
discrim ination against Negroes which exists
throughout our Nation. Today, more Chan 100
years a fte r th e ir form al em ancipation ,
Negroes, who make up over JO percent o f our
population, are by virtue o f one or another
type o f d iscr im in a tion not accorded the
rights, p riv ileges, and opportunities which
are considered to be, and must be, the
b irthright of a ll c it izen s .
*■ *■ *-
No b i l l can o r should lay claim to
e lim in atin g a l l o f the causes and con se
quences o f r a c ia l and orher types o f d is
crim in ation against m in o r it ie s . There
is reason to believe, however, that national
lead ersh ip provided by the enactment o f
Federal le g is la t io n d ea lin g with the most
troublesome problems w ill create an atmos
phere conducive to voluntary or loca l reso lu
tion o f other forms o f d is cr im in a tio n .
2/ Gont' d
Cong., 1st Sess. 3, 12-15, 47-46, 53-55, 61-63
(1963 ); Hearings on C ivil Rights 3efore Subcomm.
No. 5 o f the House Comm, on the J u d ic ia r y ,
88th Cong., 1st Sess. 2300-03 (1963); Hearings on
Equal Employment Opportunity Before the Subcomm.
on Employment and Manpower o f the Senate Comm, on
Labor and Public Welfare, 88th Cong., 1st Sess.
116-17, 321-29, 426-30, 449-52, 492-94 (1963).
- 11-,
It is , however, possibLe and necessary
f o r th e C ongress to en a ct l e g i s l a t i o n ,
which p ro h ib its and provides the means o f
terminating the most serious types' o f d is
cr im in a tion . . . . H.R. Rep. No. 914, 88th
C o n g ., 1st Ses^ . (1 9 6 3 ) , r e p r in t e d in
EEOC, Legislative History o f T itles VII and
XI o f C iv il Rights Act o f 1964 at 2018.
This Court, has rep eated ly recogn ized the
purpose o f the Act: "The ob jective o f Congress in
the enactment o f T it le VII . . . was to achieve
equality o f employment opportunities and remove
barriers that have operated in the past to favor
an id e n t i f ia b le group o f white employees over
oth er em ployees." Griggs v . Duke Power Co. ,
401 U.S. 424, 429-30 (1971); Albemarle Paper Co.
v. Moody, 422 U.S. 405, 417 (1975). "The language
o f T itle VII makes plain the purpose o f Congress
to assure equality o f employment opportunities
and to eliminate those discrim inatory practices
and devices which have fostered ra c ia lly s tr a t i
f ie d job environments to the disadvantage o f
minority c it iz e n s ." McDonnell Douglas Corn, v .
Green, 411 U.S. 792, 800 (1973). This Court also
has recognized that Congress selected "[c]oop era -
- 12 -
tion and voluntary compliance . . . as the preferred
means fo r ach iev in g th is g o a l ." Alexander v .
Gardner-Denver Co. , 415 U.S. 36, 44 (1974). The
Court, in keeping with the intent o f Congress (see
H.R. Rep. No. 914, pp. 10-11, supra) , has endorsed
the imposition o f ju d ic ia l remedies under- T itle
VII as "the spur or cata lyst which causes employ
ers and unions to self-examine arid to s e lf -e v a lu -
ate their employment practices and to endeavor to
eliminate, so far as possib le , the last' vestiges
o f an unfortunate and ignominious page in this
co u n try 's h is t o r y ." Albemarle Paper Co. v .
Moody, supra, 422 U.S. at 417-18, quoting United
States v. N.L. Industries, Inc. , 479 F.2d 354, 379
(8th Cir. 1973).
The record in th is case, shows chat what
Congress intended and what the Court has endorsed
is p r e c is e ly what happened: K aiser and the
Steelworkers examined their practices and con
cluded that there was a reasonable ba sis to
b e lie v e that they would be found l ia b le fo r
discrim ination against blacks; they had "looked at
the large sums of money that companies were being
fo rced to pay, and we looked at our problem,
which was that we had no blacks in the c ra fts , to
- 13
apeak o f , ” A. 83 (E n g lis h ); and they volun
ta r ily adopted a plan to bring blacks into cra ft
jobs. See Section IIIA and n. 26, in fra . In the
absence o f compelling le g is la tiv e h istory to the
contrary, T itle VII cannot be read to foreclose
the use o f such race-conscious numerical plans to
accomplish the primary purpose o f the Act.
The le g is la t iv e h is to r y o f the o r ig in a l
enactment o f T it le VII in 1964 co n c lu s iv e ly
demonstrates neither approval nor disapproval by
Congress o f race-conscious e ffo rts to correct-th e
e f f e c t s o f che past d iscr im in a tory ex clu s ion
o f blacks from training and job opportunities.
The major argument against congressional approval
o f such e ffo r ts is premised upon the addition to
the b i l l on the Senate flo o r o f §703(j . ) , which
states that nothing in T it le VII shall "require"
preferentia l treatment because or race "on account
- . . , ,,3/o f an imoaiance. . . . —
3/ "Nothing contained in this subchapter shall
be interpreted to require any employer, employment
agency, labor organization, or jo in t labor-manage
ment committee subject to this subchapcer to grant
preferentia l treatment to any individual or to any
group because o f the race, co lor , re lig ion , sex,
or national orig in o f such individual or group on
account o f an imbalance which may e x is t with
- 14
Prior Co Che adoption o f th is amendment,
Che SenaCe f lo o r managers of Che b i l l had -explain
ed chat T itle VII would noc require an employer Co
maincain a rac ia lly balanced work force because,
While Che presence or absence o f ocher
members o f Che same m inoricy group in Che
work fo r ce may be a relevanc fa cco r in
decermining whecher in a given case a d ec i
sion Co hire or Co refuse Co hire was based
on race, co lor , e c c . , i t is only one faccor,
and Che quescion in each case would be
whecher chac in d iv id u a l was d iscrim inated
against. 110 Cong. Rec. 7213 (1964) ( inter
p re t ive memorandum o f Senators Clark and
Case).
Notwithstanding Chis assurance, opponencs of
che b i l l continued to argue "that a quota system
w ill be imposed, wich employers hiring and unions
accepting members, on Che basis of Che percentage
of population represented by each sp e c if ic minor
i ty group." _Id_. ac 9881 (remarks o f Senator
V Cont' d
resp ect Co Che to ta l number or percentage o f
persons o f any race , c o l o r , r e l i g i o n , sex, or
national orig in employed by any employer, referred
or c la ss if ied for employment by any employment
agency or labor organization, admitted co member
ship or c la ss if ied by any labor organization, or
admitted Co, or employed in any apprenticeship or
other training program, in comparison wich Che
to ta l number or percentage o f persons o f such
- 15
ALlott). To put these doubts to rest , Senator
AllotC proposed an. amendment precluding a finding
o f unlawful discrimination "so le ly on the basis of
evidence that an imbalance exists without
supporting evidence of another nature that the
respondent has engaged or is engaging in such
p ra ct ice ." Id . at 9881-82. The sense of this
amendment was incorporated , in the language
o f § 7 0 3 ( j ) , as part o f the Dirksen-M ansfield
compromise which resu lted in the end o f the
Senate debate and the enactment o f the C iv i l
Rights Act o f 1964. As Senator Humphrey explained
in presenting the compromise amendments to the
Senate,
A new subsection 703(j ) is added to deal
with the problem o f r a c ia l balance among
employees. The proponents o f this b ill- have
carefu lly stated on numerous occasions that
T i t le VII does not require an employer
to achieve any sort o f racia l balance in his
work force by giving preferential treatment
to any in d iv id u a l or group. Since doubts
have persisted, subsection ( j ) is added to
state this point expressly. Id . at 12723.
2/ Cont' d.
race, co lor , re lig ion , sex, or national origin
in any community, State, section, or other area,
or in the available work force in any community,
State, section, or other area." 42 U.S.C. §2000e-
2(j ).
- L6
This leg is la tive history does not 'ind icate
that Congress intended to forbid race-conscious
numerical action to correct Che e ffects o f past
d is cr im in a t ion . The concern o f Congress in
enacting §703(j) was not directed to the question
whether race could be taken into account fo r
remedial purposes; rather, i t s in tent was to
ensure that findings of discrimination would noc
be based solely on evidence of s ta t is t ic a l im
balance and thereby to allay the fear chat Title
711 would have Che e f fe ct o f requiring employers
to maintain a sp ec if ic racia l balance o f employ-
4 /
ees The language o f § 7 0 3 ( j ) , l ik e that o f
4/ Senators Clark and Case also stated that "any
deliberate attempt to -maintain a racia l balance,
whatever such a balance may be, would involve a
v iolation o f T itle VII because maintaining such a
balance would require an employer to hire or to
refuse to hire on the basis o f race ." 110 Cong.
Rec. at 7213. See also id . at 6549 (remarks of
Senator Humphrey). Senator A llott believed chat
"a quota system o f h ir in g would be a t e r r ib le
m istake ," but did not in d ica te whether such a
system would be unlawful. _Id_. at 9881-32.
These statements may in d ica te an in ten c ion to
prohibit employers from deliberately maintaining
a particular racial composition of employees as an
end in i t s e l f , but they do not suggest any inten-
- 17
1703(h), does uoc re s tr ic t or qualify otherwise
appropriate remedial action but defines what is
and what is not an i l le g a l discriminatory prac
t ic e . C f. Franks v. 3owman Transportation Go.,
supra, 424 U.S. at 758-62. Indeed, the le g is la
tive history o f Che ]964 Act shows no detailed
consideration o f Che scope and nature o f remedial
a ct ions which might be taken by employers and
unions or ordered by the courts , and i t shows no
consideration whatever o f the perm issibility of
race-conscious remedial measures. See generally,
EEOC, Legislative History o f T itles VII and XI o f
C iv il Rights Act o f 1964. There is no indication
that "in the absence o f any consideration o f Che
question, . . . Congress intended to bar the use of
racia l preferences as a tool for achieving the
o b je c t iv e o f remedying past d is cr im in a t ion or
other compelling ends." 3akke, supra, 57 L.Ed.2d
at 803 n.17 (opinion o f 3rennan, White, Marshall,
Blackmun, J J .) .
4/ Cone ' d
Cion to foreclose "the voluntary use of racial
preferences to assist minorities to surmount the
obstacles imposed by the remnants of past d is
crim ination ." Regents o f the University o f Cali
fornia v. 3akke, 57 L.Ed.2d 7 5 0 , 803 n. 17 ( 1973)
(opinion o f Brennan, White, Marshall, Blackmun,
J J .).
18
B. Judicial and Executive Interpreta
tions: 1964-1972
In Che years following Che enactment o f T id e
^I^> Che courts and federal execucive agencies
recognized chac Congress had not intended Co
outlaw one o f the most e f fe c t iv e means of remedy
ing past d is cr im in a t ion , and accord in g ly they
in terp reted T i t le VII to perm it, and in some
instances to require, the use of race—conscious
numerical remedies. The courts held that §703(j)
could not be construed as a ban on such remedies:
"Any other interpretation would allow complete
n u ll i f ica t ion o f the stated purposes of the Civil
Rights Act o f 1964." United States v. Local 38.
I3EW, 428 F.2d 144, 149-50 (6th C i r . ) , c e r t .
denied, 400 U.S. 943 (1970). T itle VII was held
to authorize remedial orders req u ir in g union
re re r ra ls o f one black worker fo r each white
, 5/ . . .worker,— s p e c i f i c percentages of blacks in
regular apprenticeship classes and special appren—
5/ l*ocal 53, Asbestos Workers v. Vogler, 407
F•2d 1047, 1055 (5th Cir. 1969).
- 19
t ic e s h ip programs fo r b lacks o n ly ,— and p r e f
e r e n t ia l work r e g is t r a t io n , examination, and
re ferra l procedures for blacks with experience in
the construction industry .—̂ As the Second Cir
c u i t stated in summarizing these d e c is io n s ,
"while quotas merely to attain racia l balance are
forbidden, quotas to correct past discriminatory
practices are not." United States v. Wood Lathers
Local 4 6 , 471 F.2d 408, 413 (2d C i r . ) , c e r t .
denied, 412 U.S. 939 (19 73).-^
Also during the period between the enactment
o f T it le VII in 1964 and its amendment in ]972,
the Department o f Labor determined that numerical
goals and timetables were necessary to implement
6/ United States v. Ironworkers Local 86, 315
F.Supp. 1202, 1247-48 (W.D. Wash. 1970), a f f ' d ,
443 F.2d 544, 553 (9th C ir .) , cert, denied, 404
U.S. S84 (1971).
V United States v. Sheet Metal Workers Local 36,
416 F .2d 123, 133 (8th Cir. 1969).
8/ The courts o f appeals in e ight c i r c u i t s
have upheld the authority o f the d is t r ic t courts
to order race-conscious numerical r e l i e f under
T itle VII or other federal fa ir employment laws,
see nn. 94-95 , infra.
- 20 -
the equal employment opportunity and affirmative
action obligations of government contractors under
Executive Order No. 11,246, and that a permissible
method of meeting the goals and timetables in the
construction industry was the hiring o f one minor
i t y craftsman fo r each nonminority craftsman.
See Comment, The Philadelphia Plan: A Study in the
Dynamics o f Executive Power, 39 U. Chi. L. Rev.
723, 739-43 (1972). -Both the Department o f
Labor—̂ and the Department o f Jus tice- -̂2- ̂found
no co n f l ic t between such race—conscious-- measures
and the prov is ion s o f T i t le VTI„ The courts
agreed, holding that §7 0 3 (j) did not impose
any limitation on actions taken pursuant to the
Executive Order program and that,
To read §703(a) in the manner suggested
by the p la in t i f fs , we would have to attribute
to Congress the in ten tion to freeze the
status quo and to foreclose remedial action
2.! Office o f the S o lic ito r , U.S. Department of
Labor, Legal Memorandum, in Hearings on the
Philadelphia Plan and S. 931 3efore che Subcomm.
on Separation o f Powers o f the Senate Comm, on the
J u d ic ia ry , 91st Cong., 1st Sess. 255, ac 274
(1969) .
10/ 42 Op. Act 'y Gen. No. 37 (Sept. 22, 1969).
- 21
under other authority designed to overcome
existing e v ils . We discern no such intention
e i t h e r from the language o f the s ta tu te
or from its leg is la t iv e h istory. Contractors
A s s o c i a t i o n o f E astern P en n sy lv a n ia v .
Secretary o f Labor, 442 F.2d 159 , 173 (3rd
C i r . ) , c e r t . d en ied , 404 U.S. 854 (1971).
See also Southern I l l in o is Builders Association
v. Ogilvie, 471 F.2d 680, 684-36 (7th Cir. 1972),
and cases c i t e d th ere in . Thus, by the time
Congress considered the 1972 amendments to T it le
VII, it- was well established that the 1964 Act
permitted race-conscious remedial action.
C. Legislative History: 1972
In amending T it le VII by the enactment o f the
Equal Employment Opportunity Act o f 1972, Pub. L.
No. 92-261, Congress approved these interpreta
tions o f T i t le VII. Congress was aware that
Employment d iscr im in ation as viewed
today is a . . . complex and pervasive
phenomenon. Experts fa m ilia r with the
subject now generally describe the problem in
terms o f "systems" and " e f f e c t s " rather
than simply in te n t io n a l wrongs, and the
l i t e r a t u r e on the su b jec t i3 r e p le te with
discussions o f , for example, the mechanics
o f s e n io r i t y and l in es o f p rog ress ion ,
perpetuation o f the. present e f fe c t o f pre-act
- 22 -
d iscrim in atory p ra c t ice s through various
in s t i t u t io n a l d ev ices , and te s t in g and
validation requirements. S. Rep. No. 92-415,
92d Cong., 1st Sess. 5 (1971).
The committee reports s p e c i f i c a l l y c i t e d
cases which had approved race-conscious solutions
for these complex and pervasive problems. See,
e .g . , id. at 5, n . l ; H.R. Rep. No. 92- 238 , 92d
Cong., 1st Sess. 8 n.2, 13 n .4 (1971). And, in
a section-by-section analysis presented to the
Senate with the conference re p o r t , the Senate
sponsors o f the leg is la tion stated that,
In any area where the new law does not
address i t s e l f , or in any area where a sp eci
f i c contrary intention is not indicated, it
was assumed that the present case law as
developed by the courts would continue to
govern the app licab ility and construction o f
T itle VII. 118 Cong. Rec. 3460-63 ( 1972),
reprinted in EEOC, Legislative History o f the
. Equal Employment Opportunity Act o f 1972, at
1844.
See 3akke, supra, 57 L.Ed.2d. at 811 n. 28 (opinion
o f Brennan, White, Marshall, 31ackmun, J J . ) .
Moreover, with fu l l awareness o f the ju d ic ia l
decisions interpreting T itle VII to permit the
remedial use of race, Congress not only confirmed
but expanded the remedial authority of the courts
by amending 5706(g) to provide express ly that
appropriate affirmative action under that section
" is not limited to" reinstatement, hiring, and an
award o f back pay, and that a remedial order may
- 23
include "any other eq u ita b le r e l i e f as the
court deems- appropriate." 42 U.S.C. §2000e-5(g).
See Comment,. The P hiladelph ia P lan , supra,
39 U. Chi. L. Rev. at 759 n.139.
F in a lly , "Congress, in enacting Che 1972
amendments to T it le VII, e x p l ic it ly considered and
re je c te d proposals to a l t e r Executive Order
11,246 and the prevailing ju d ic ia l interpretations
o f T it le VII as permitting, and in some circum
stances requiring, race conscious a ct ion ." Bakke,
supra, 57 L.Ed.2d at 811 n.28 (opinion o f Brennan,
White, Marshall, 31ackmun, J J .) . The detailed
history o f the Dent and Ervin amendments and their
re jection by the House and Senate has been docu
mented elsewhere and need not be repeated here.
See Comment, The Philadelph ia P lan, supra, 39
U. Chi. L. Rev. at 75 1-57. See a ls o , 3o s con
Chanter, N.A.A.C.P., Inc, v. 3eecher, 504 F.2d
1017, 1028 (1st Cir. 1974), c e r t . denied, 421 (J.S.
910 (1975); United States v. Local 212, I3EW, 472
F.2d 634, 636 (6th Cir. 1973). In sum, "[e ]xecu -
t ive , ju d ic ia l , and congressional action subse
quent to the passage o f T itle VII conclusively
established that Che T it le did not bar the reme
d ia l use o f r a c e . " 3akke, supra , at 311 n.23
(opinion o f Brennan, White, Marshall, 31ackmun,
J J .) .
- 24 -
D. EEOC. Guidelines on Affirmative Action-
The Equal Employment Opportunity Commission
recently cod if ied and reaffirmed this interpreta
tion o f T itle VII in its Guidelines on Affirmative
Action, 4A Fed. Reg. 4421—30 (Jan. 19, 1979), 29
C.F.R. Part 1608. These guidelines were proposed
in part to encourage voluntary compliance by
"authorizing employers to adopt racia l preferences
as a remedial measure where they have a reason
able basis for believing that they might otherwise
be held in v io la t i o n o f T i t l e V I I ." 3akke,
supra, 57 L.Ed.2d at 818 n.38 (opinion o f Brennan,
White, Marshall, Blackmun, J J . ) . Under the
gu ide lines an employer or union, fo l low in g a
reasonable self-analysis of its practices, which
discloses a reasonable basis for concluding that
a ct ion is appropriate , may v o lu n ta r i ly take
reasonable affirmative' action including the use of
"goals and timetables or other appropriate employ
ment too Is which recogn ize the race , sex, or
national orig in o f applicants or employees." 29
C.F.R. §1608.4 (c ) . Such action may be taken where
there is a reasonable basis for believing that i t
is an appropriate means o f , inter a l ia , correcting
the affects of past discrimination, eliminating
- 25
th-e- adverse, impact on m in or it ie s o f present
practices, or terminating disparate treatment. 29
C.F.R. §§1608.3, 1608.4(b). I t is not necessary
for an employer or anion to establish chat i t has
v io la te d T i t le VII in the p as t ; there is no
requirement of an admission or formal finding o f
past discrimination, and affirmative action may be
taken without regard to arguable defenses which
might be asserted in a T itle VII action brought on
behalf o f minorities. 29 C.F.R. 51608.4(b). See
Section I I A, in f r a . The gu ide lines recogn ize
that
Voluntary affirmative action to improve
opportunities for minorities and women must
be encouraged and p rotected in order to
carry out the Congressional intent embodied
in T i t le VII. A ff irm ative a c t ion under
these principles means those- actions appro
p r ia te to overcome the e f f e c t s o f past
or present p r a c t i c e s , p o l i c i e s , or ocher
b a rr ie rs to equal employment opportun ity .
Such voluntary affirmative action cannoc be
measured by the standard o f whether i t would
have been required had there been l it ig a t ion ,
for this standard would undermine Che le g is
lative purpose o f f i r s t encouraging voluntary
action without l i t ig a t io n . Racher, persons
subject to T itle VII must be allowed f l e x i
b i l i t y in modifying employment systems and
p ra c t ice s to comport with the purposes
o f T i t le VII. Correspondingly, T i t le VII
must be construed to permit such voluntary
26
action, and those taking such action should
be afforded — protection against T itle VII
l ia b i l i t y . . . . 29 C.F.R. §1608. l(c.).
These guidelines "constitute 'the administra
tive interpretation of the Act by the enforcing
agency,' and consequently they are 'en tit led to
great d e f e r e n c e . Albemarle Paper Co. v. Moody,
supra, 422 U.S. at 431; Griggs v. Duke Power Co.,
supra, 401 U.S. at 433-34. The degree o f defer
ence to be accorded to such an in te rp re ta t io n
depends upon "the thoroughness evident in i t s
con s id era t ion , the v a l id i t y o f i t s reasoning,
i t s con s isten cy with e a r l i e r and la te r pro
nouncements, and a l l those fa c to rs which give
it power to persuade, i f lacking power to con
t r o l . " General E le c t r ic Co. v . G i lb e r t , 429
U.S. 125, 142 (1976), quoting Skidmore v. Swift
& Go. , 323 U.S. 134, 140 (1944.).
When judged by these standards, the Guide
lines on Affirmative Action are entitled to great
weight. First, the EEOC's careful and thorough
consideration is evident: the proposed guidelines
were in t ita l ly issued on December 28, 1977, 42
Fed. Reg. 64., 82 6; comments were rece iv ed from
almost 500 ind iv iduals and organ ization s ; the
- 27 -
Commission considered this Court's opinions in the
Bakke case before taking any final action ; and
substantial changes were made before the Commis
sion voted to approve the guidelines in final form
on December 11, 1978. See Supplementary Informa
tion: An Overview o f the Guidelines on Affirmative
A c t io n , 44 Fed. Reg. at 4422-23. The EEOC's
extensive consideration o f the comments, the legal
a u t h o r i t ie s , and the p rec ise wording o f the
g u id e lin es is r e f le c t e d in some d e t a i l in the
overview issued with the fina l guidelines. Id_. at
4422-25. Second, Che va lid ity o f the reasoning
sec forth in the guidelines is apparent from the
leg is la t ive history o f the 1964 enactment and the
1972 amendment o f T i t le VII, as w ell as from
ju d ic ia l and other executive agency interpreta
tions o f the s ta tu te . See pp. 18-21, supra.
Finally, the guidelines are fu lly consistent with
prior interpretations of T itle '/II by the EEOC
expressly approving "[n]umerical goals aimed at
increasing female and minority employment" as "the
cornerstone o f . . .. a[n a f f irm a tiv e a c t ion ]
plan." EEOC Decision 74-106, 10 in? Cases 269.
- 28
274 (April 2, 1974); EEOC Decision 75-268, 10 -FEP
Cases 1502, 1503 (May 30, 1975). See also, Equal
Employment Opportunicy Coordinating C ouncil,
P o licy Statement on A ffirm ative Action Programs
for State and Local Government Agencies, 41 Fed.
Rag. 38,814 (Sept. 13, 1976), reaffirm ed and
extended to a l l persons subject to federal equal
employment opportunity laws and orders in the
Uniform Guidelines on Employee Selection Proce
d ures , 43 Fed. Reg. 38,290, 38,300 (Aug. 25,
1978), 29 C.F.R. §1607.13B.
II. A STANDARD PERMITTING EMPLOYERS AND
UNIONS TO TAKE RACE-CONSCIOUS
AFFIRMATIVE ACTION WHEN THEY HAVE A
REASONABLE BASIS TO DO SO IS CON
SISTENT WITH TITLE VII AND THE
CONSTITUTION
A. An Employer or Union May Take Race-Con
scious Affirmative Action Where It Acts
upon a Reasonable B elief that Such
Action Is Appropriate
An employer when con s id er in g whether to
in s t i t u t e a ra ce -con sc iou s a f f irm a tiv e a c t ion
plan, or a court when reviewing a challenge to
such a plan, need only decarmine that there is a
reasonable basis for the plan in order to conclude
thac the plan is law fu l. The employer is not
required to admit chat it had engaged in unlawful
- 29
p r io r d iscr im in a tory p r a c t ic e s or to submit
evidence su ff ic ien t for a court to find that the
employer had violated the fa ir employment laws in
order to j u s t i f y the in s t i t u t io n o f the plan.
EEOC Guidelines on Affirmative Action, 29 C.F.R.
5 1 6 0 8 .1 (c ) . See Section I D, supra . A r ig id
standard req u ir in g con c lu s iv e p roo f o f p r io r
discrimination would largely eliminate voluntary
affirmative- action, see pp. 32-34, in fra . The
circumstances which constitute a reasonable basis
for instituting an affirmative action plan vary
according to the particular employment situation.
However, an employer or union may develop a race
conscious affirmative action plan when there is
reason to believe that such action is appropriate,
in te r a l i a , (1 ) to provide a remedy for p r io r
discriminatory practices o f the employer or union,
(2) to insure the lega lity o f current practices,
(3) to provide a remedy for discriminatory prac
tices related to the business of the employer or
union, or (4) to comply with Executive Order No.
11,246 or other legal requirements for affirmative
action. — Moreover, the '-action undertaken must
be reasonably related to the identified problems
which ju s t i fy the institution o f the plan, see
Section IIX 3, in fra .
In enacting T i t le VII Congress s e le c te d
[c]ooperation and voluntary compliance . . . as
the preferred means for achieving” the elimination
o f discrimination in employment. Alexander v.
Gardner-Oenver Co. , supra, 415 U.S. at 44. The
standard for determining whether an affirmative
action plan is lawful under T itle VII must simi
larly encourage voluntary compliance and voluntary
action. The standard adopted by a majority o f the
court below, which would require an emnloyer to
admit that i t was guilty o f unlawful discrimina—
tory practices or' to submit conclusive proof of
such practices before i t could lawfully institute
an a ff irm a tiv e a ct ion plan, would fru s tr a te
the purposes of T itle VII.
W Of course , in ce r ta in circum stances an
employer or union may be required to institute an
affirmative action program. The ju stif ica tion s
for race-conscious affirmative action which are
listed are not exclusive but rather those chat
are relevant to the a f f irm a tiv e a ct ion plan
designed by Kaiser and the Steelworkers.
- 31
[T]he standard produces . . . an end to
voluntary compliance with T it le VII. The em
p lo y e r and the union are made to walk a
high tightrope without a net beneath them.
On one s ide l i e s the p o s s i b i l i t y o f l i a
b i l i t y to m in or it ie s in p r iva te a c t io n s ,
fed era l pattern and p r a c t ic e s u i t s , and
sanctions under Executive Order 11246.
On the other side is the threat o f private
suits by white employees and, potentially ,
fed era l a ct ion . . . [T]he defendants could
well have realized that a v ictory at the cost
of admitting past discrimination would be a
Pyrrhic v ictory at best. G. Pet. 32a—34al2/
(Wisdom, J . , d issenting).13/
12/ This form o f c ita t ion refers to the petition
fo r a writ o f c e r t i o r a r i f i l e d by the United
States and the Equal Employment Opportunity
Commission.
13/ Iron ica lly , i f the applicable standard were
Co require conclusive proof or an admission of
prior discriminat ion r then the back pay remedy
which the Court indicated should provide a "spur
or catalyst" for voluntary compliance, Albemarla
Paper Co. v. hoodv, supra, 422 U.S. at 417-18,
would instead provide a b a rr ie r to voluntary
compliance. The admission of prior discrimination
or the submission o f conclusive proof of discrim i
nation would serve as an open invitation tor a
su it seeking back pay by b lack workers. The
fa i lu r e o f the company to admit or to prove
conclusively its prior discrimination would serve
as an equally open invitation tor a suit seeking
back pay in addition to injunctive r e l i e f by white
workers. I f whenever undertaking a ff irm a tiv e
action employers were confronted with monetary
l ia b i l i t y to one group of workers or the other,
- 32 -
The '"h ig h t ig h tr o p e " that employers are-
required to walk by the Fifth C ircu it 's standard
is i l lu s t r a t e d by K a iser 's experience with
T itle VII suits at its three plants in Louisiana
— at Baton Rouge, Chalmette and Grammercy.
31ack workers at both the Chalmette and the 3aton
Rouge plants brought lawsuits alleging T it le VII
v io la t io n s . In the Chalmette s u i t , the F ifth
Circuit reversed the d is t r ic t court 's dismissal of
the complaint, because i t found on facts remarkably
similar to those at the Grammercy plant that a
prima fa c ie v io la t io n o f T i t le .VII had been
established. Parson v. Kaiser Aluminum & Chemical
Coro. , 575 F.2d 1374, 1389-90 (1978). In the
13/ Cant'd
employers would refrain from ever taking affirma
tive action.
"Indeed, the requirement o f a ju d i c ia l
determination of a constitutional or statutory
v io lation as a predicate for race-conscious reme
d ia l a ct ions would be s e l f - d e f e a t in g . Such
a requirement would severely undermine e fforts to
achieve voluntary compliance with the requirements
of law." 3akke, supra, 57 L.Ed.Zd at 818 (Bren
nan, White, Marshall, 31ackmun, J J .) ; see McDaniel
v. Barresi, 402 U.S. 39 (1971).
- 33
3aton. Rouge s u i t , the p a r t ie s , a f t e r Lengthy
. . . . 14/l i t ig a t io n and discovery procedures,— en tered
into a settlement which provided that Kaiser pay
$255,000 in monetary r e l i e f to the p la in t i f f class
and an a d d it io n a l amount in a t to rn e y s ' fe e s .
3urrell v. Kaiser Aluminum & Chemical Corn. , Civil
Action No.67-86 (M.D. La.) (consent decree f i le d
Feb. 24, 1975). K a iser 's experience with the
T it le VII suits brought by black workers in its
p lants in Louisiana and i t s review o f su its
brought against other companies acted — as in
tended by this Court in Albemarle Paper — as a
"spur or c a t a ly s t " fo r change.— ̂In the th ird
plant, at Grammercy, where Kaiser adopted an a f
firmative action plan designed to remedy possible
p r io r v io la t io n s and to f o r e s t a l l - a lawsuit
brought on behalf o f black workers, see Section
IIIA, in fra , i t was subjected to this lawsuit by
14/ See, e .g . , Burrell v. Kaiser Aluminum and
Chemical Corp. , 408 F.2d 339 (5th Cir. 1969) (per
curiam), rev 'g 287 F.Supp. 289 (E.D. La. 1968).
15/ The superintendent for industrial relations
at the Grammercy plant noted that "the OFCC, the
EEOC, the NAAC?, the Legal Defense Fund [had a l l ]
been into the [3aton Rouge] plant, and as I was
saying, whatever their remedy is believe me, i t ' s
one heck of a lo t worse than something we can work
out ourselves." A. 83-34, see p .58 n.26, in fra ■
- 34 -
Brian Weber alleging reverse discrimination. The
Fifth C ircu it 's r ig id standard,' requiring conclu
sive proof or an admission o f prior discriminatory
practices, would not only result in less voluntary
compliance but would also result — as indicated
by K a iser 's experience in Louisiana in the
f i l l i n g o f the court dockets with T i t l e VII
16/su its .— See G. Pet. 32a (Wisdom, J . , d issenting).
Race-conscious affirmative action is ju s t i
fiable i f an employer or a union has a reasonable
basis for believing that i t might otherwise be
_16_/ There was a "s ta g g er in g " increase in the
number o f T itle VII cases fried between 1970 and
19 76 : from 344 employment cases f i led in. f is ca l
year 1970 to 5,321 in f is ca l year 1976. Adminis
trative. O f f ic e o f the United States Courts,
1976 Annual Report o f the D irector, at 107-08.
This increase is understandable in light of the
facts that the coverage o f T it le VII was broadly
expanded by the Equal Employment Opportunity Act
of 1972, see e .g . , Chandler v. Roudebush, 425 U.S.
840, 841 (1976), and that the interpretation of
T itle VII on numerous issues was f i r s t c la r i f ie d
during this p er iod . See e .g , Griggs v . Duke
Power Co., 401 U.S. 424 (1971); McDonnell Douglas
Cor?, v. Green, 411 U.S. 792 (1973); Albemarle
Paner Co. v. Moodv, 422 U.S. 405 (1975).
- 35
held in v io la tion o f T it le VII. An affirmative
action- plan may be used to remedy Che e f fe c ts o f
p o s s ib le p r io r d iscr im in atory p ra c t ic e s or to
prevent p o ss ib le continuing d iscr im in atory
16/ con t1d
This enormous growth rate in T i t l e VII
filings^ slowed after f is c a l year 1976. While there
was an increase of 1,390 fi l in gs or o f 35.4% from
FY 1975 to FY 1976 (3,931 f i l i n g s as compared
to 5,321 f i l in g s ) , in FY 1977 there was an in
crease o f 610 f i l in gs or o f 11% to 5,931. Admin
istra tive Office o f the United States Courts, 1977
Annual Report o f the D irector, at 112. In FY 1978
there was a deerease o f 427 f i l i n g s or o f 7%
(from 5,931 to 5,504 f i l in g s ) . Administrative
Office o f the United States Courts, 1978 Annual
Report o f the D irector, at 88;
•While it i s - d i f f i c u l t to draw hard conclu
sions from the dramatic change in the rata
o f T i t le VII case f i l i n g s from a "s ta g g er in g "
increase to a decrease, i t may be inferred that
the c la r i f ica t ion s in the law and the emphasis on
voluntary affirmative action were beginning to
have an e f fe c t . I f voluntary affirmative action
is severely restricted — as it would be i f the
Fifth Circuit is affirmed — then Che remedy for
employment discrimination would l i e primarily in
the courts and not in voluntary resolution, and a
return Co a substantial increasing rate o f T it le
VII cases could be expected.
- 36
practices .— ̂ This Court has held that a s ta t is
t ica l disparity resulting from a fa c ia l ly neutral
practice is su ff ic ien t to establish a prima facie
disparate impact v io la tion o f T it le VII, Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); and that
gross s ta t is t ica l d isparities alone may be s u f f i
c ie n t to c o n s t i tu te a prima fa c ie showing o f
in te n t io n a l d is cr im in a t ion , Hazelwood School
D istrict v. 'United States, 433 U.S. 299, 307-08
•(1977); International Brotherhood o f Teamsters v .
United States, 431 U.S. 324, 339 (1977). Accord-
17/ " I f the s e l f analysis shows that one or more
employment practices: (1) have or tend to have an
adverse e f f e c t on employment op p ortu n it ies o f
members of previously excluded groups, or groups
whose employment or promotional opportunities have
been a r t i f i c ia l ly limited, (2.) leave uncorrected
the e ffects of prior discrimination, or (3) result
in d isparate treatment, the person making the
self-analysis has a reasonable basis for conclud
ing that action is appropriate. It is not neces
sary that the self-analysis establish a v io la tion
o f T i t le VII. This reasonable basis ex is ts
without any admission or formal finding that the
person has violated Title VII, and without regard
to whether there e x is t arguable defenses to a
T itle VII action ." EEOC Guidelines on Affirmative
Action, 29 C.F.R. §1608.4(b); see also 51608.3(b).
- 37 -
ingly, employers and anions may rely on s t a t i s t i
cal analysis in determining whether there is a
18/reasonable basis for taking affirmative action .—
Where, as in this case, Che s ta t is t ic a l analysis
indicates a prima facie showing that the employ
e r 's prior practices were discriminatory and that,
i f Che employer did not take ra ce -con sc iou s
affirmative action, its continuing practices would
be d is cr im in a tory , see pp. 82-85, i n f r a , the
employer has a reasonable basis for caking such
action.
But the a n a ly s is need not d em on stra te
that there is a prima fa c ie case in order for
race-conscious action to be ju s t i f ia b le . Requir
ing an employer to demonstrate a prima fa c ie
case would frustrate voluntary compliance and the
e f fe c t iv e implementation of private remedies for
discriminatory practices for Che same reasons,-
although not quite as severely, as requiring Che
employer Co admit that i t had engaged in d i s -
18/ "The e ffects o f prior discriminatory prac
tices can be in i t ia l ly identified by a comparison
between Che em ployer 's w orkforce , or a part
thereof, and an appropriate segment o f Che labor
fo r ce ." EEOC Guidelines on Affirmative Action,
29 G.F.R. 51608.3(b). See a lso 551608.3 (a ),
1608.4(a).
• • . 19/crim inatory p r a c t i c e s .— In order to j u s t i f y
race-conscious affirmative action an employer need
only show that i t had a reasonable basis fo r
believing that, in the absence o f such action,
i t might be held in v io la t io n o f T i t l e VTI.
Furth erm ore , an em ployer o r union may
take- race-conscious action to remedy the disad
vantages a f f e c t in g m in or it ie s as a r e s u lt o f
the discriminatory practices o f other companies or
unions or as a result o f governmental or societa l
. . . 20/d iscr im in ation .-1— Such action, is p a r t ic u la r ly
19/ Neither Kaiser nor the Steelworkers argued in
the d is tr ic t court that there was a prima facie
case o f discrimination even though it is apparent
that such an argument was readily available, see
pp. 56 - 58,. in fra . In fact, the parties did not
introduce important but available evidence which
would have confirmed the prima facia showing, see
P* 60 n. 27 .in fra . The reason for the omission
is obvious: oy proving or almost proving prior
discrimination, the parties would invite a suit
brought on behalf of black workers which would
involve the p arties in the complex l i t i g a t i o n
which they had sought to avoid by agreeing to the
affirmative action plan.
20/ "Although T itle VII c learly does not require
employers to take a c t ion to remedy the d isa d
vantages imposed upon racia l minorities by hands
- 39 -
necessary where, as is Che case wich s k i l l e d
craftsm en, see pp. 89 -104 , i n f r a , there i s a
limited pool o f available minorities because o f a
history of discrimination by employers, by unions,
by educational institutions and even by law. See
EEOC Guidelines on Affirmative Action, 29 C.F.R.
§1608 .3 ( c ) . I f the p ervas ive , complex, and
systemic discriminatory practices in this country
— and their soc ia lly dangerous e f fe c ts , such as
the d isp rop or t ion a te unemployment rate among
minorities — are ever to be undone, employers
must be encouraged to undertake soc ia lly respons
ib le affirmative action. See 3akke, supra, 57
L.Ed.2d at 844-45 (Blackmun, j . ) .
It is almost inevitably the case that employ
ers l ik e Kaiser become part and parce l o f the
general practices, of discrimination. When Kaiser
s e le c te d from a pool o f s k i l l e d craftsmen to
which minorities had limited access because of
discriminatory business, union, and vocational
20/ Cont 'd
other than their own, such an objective is per
fect ly consistent wich the remedial goals of the
statu te ." 3akke, supra, 57 L.Ed.2d at 804 n . 17
(op in ion o f 3rennan, Marshall, White, B la ck
mun , JJ. ) .
. — 40
training practices, i t re lied on and, in e f fe c t ,
supported the discriminatory practices o f others.
Reliance on the discriminatory po lic ies o f others
which has an adverse impact on minorities, whether
done- intentionally or simply without su ff ic ien t
business ju s t i f ica t io n , may constitute a v io lation
2 1 /of T i t le VTI.— At the very 1-east, a company
which has relied on the discriminatory practices
o f others should be encouraged to take a ct ion
which would a ffe c t iv e ly eliminate that reliance
and correct the adverse racia l e ffects caused by
those p ractices .
21/ See, e .g . , Griggs v. Duke Power Co., supra,
401 U.S. at 430 ("Because they are Negroes,
petitioners have, long received in fer ior education
in segregated s c h o o l s . . . . " The petit ion ers ' T itle
VII rights were v io la te d because the company
in s t itu te d education and ta stin g requirements
which were noc job-related and which fa iled blacks
more frequently than whites as a result of the
discrimination in education); Bakke, supra, 57
L.Sd. 2d at 819 ("_[0]ur cases under T itle VII . . .
have held that, in order to achieve m inority
participation in previously segregated areas of
public l i f e , Congress may require or authorize
preferential treatment for those likely disad
vantaged by s o c i e t a l r a c ia l d is c r im in a t io n ." )
(Opinion of 3rennan, White, Marshall, .31ackmun,
JJ. ) .
Finally, an employer which is a qualifying
government con tra c to r may, and indeed must,
undertake affirmative action to comply with the
requirements o f Executive Order No. 11,246.
In enacting the Equal Employment Opportunity Act
o f 1972, Congress s p e c i f i c a l l y cons idered and
rejected e fforts to outlaw the use o f numerical,
race-conscious plans under the Executive Order
program. See Section I C, supra; Comment, The
Philadelphia Plan, supra, 39 U. Chi. L. Rev. at
751-57. Race—conscious action which is undertaken
in good faith reliance on the Executive Order is
not only permissible under T it le VII but furthers
the purposes of T itle VII. EEOC Guidelines on
22/Affirmative Action, 29 C.F.R. §1608.5.—
B. An Action to Enforce the Fifth
C ircu it 's Construction o f T itle
VII Would Not Present a "Case
or Controversy"
The court o f appeals h e ld , and respondent
apparently agrees, that the Company and Union
22/ Regardless o f the ju s t i f i ca t io n for race-con
scious affirmative action, the measures undertaken
must be ap p rop r ia te ly designed to remedy the
identified problems. The standards for determining
appropriate action are discussed in Section III 3,
infra.
- 42 -
could, have, successfully defended this action i f
they had alleged and proved chat they had d is
crim inated on the basis o f race against b lack
employees or applicants. The defendants made no
e f fo r t to present this defense ; on the contrary,
they claimed that they had not d iscr im inated
against b la ck s . The evidence adduced by the
defendants on this issue was apparently intended
to shovthe absence of past discrimination against
blacks, and thus supported the claims and inter
ests o f the p la in t i f f rather chan o f the defen
dants themselves. -The defendants were in posses
s ion o f a v a r ie ty o f evidence showing past
discrimination against blacks, including the OFCC
le tte r described in n. 42, , in fra , but they fa iled
to introduce the evidence into the record .
Although the scancy evidence chat was placed in
the record strongly suggested a history o f d is
cr im in ation against b lacks , counsel fo r the
defendants consistently declined to press such an
inference or to urge such a defense. Despite this
p e cu l ia r s ta te o f a f f a i r s , the courts below
attempted Co make a factual finding as to whether
or not there had been such a history o f discrim i
nation .
- 43
What occurred in this instance is not unique,
but seems an. inherent d i f f i c u l t y with cases of
th is s o r t . As Che Company candid ly notes , no
employer "can be expected to con fess to past
discrimination in order to ju s tify a challenged
r a c ia l p r e fe r e n c e ." P e t i t io n , No. 78-435,
p. 11. Such a co n fe ss io n would give r is e to
potentially massive Liability to black employees
and app lican ts for back pay and/or punitive
damages. See pp. 31-34, supra. No employer w ill
seek to prove l i a b i l i t y to a large number o f
minorities or women merely Co avoid l ia b i l i t y to a
white male. The same dilemma exists outside of
the employment area.
An action which can only be fu lly defended
by ■establishing l ia b i l i t y to third parties, and
which as a consequence w ill noc be so defended,
does not present a "case or controversy" within
the meaning o f A r t ic le I I I . The p arties to a
proceeding in fed era l court must have "such
a personal stake in the outcome o f the controversy
as to assure that con cre te adverseness which
sharpens the presentation o f issues upon which the
court so la rg e ly depends . . . " 3aker v. Carr,
- 4 4 —
'369' U.S. 186, 204 ( 1961). The nature o f the
interests of each party should assure that they
w ill "frame the relevant questions with s p e c i f i
c i t y , con tes t the issues with the necessary
adverseness, and pursue the l i t ig a t ion v igorously."
Barlow v . C o l l in s , 397 U.S. 159, 172 (1970)
(3rennan, J ., concurring). The courts are un
equipped, in the absence o f such competing in ter
ests, to resolve factual questions which usually
require d iscov ery and a con tested ev id en tiary
hearing. These considerations- are o f particular
import where, as here, upholding p l a i n t i f f ' s
undefended claim o f n on -d iscr im in a tion would
adversely a ffect the interests o f third parties,
the black workers.
Previous standing decisions have focused on
whether the p la in t i f f has a "su ff ic ien t stake in
an otherwise ju stic ia b le controversy to obtain
jud ic ia l resolution . . . . " Sierra Club v. Morton,
405 U.S. 727, 731 (1972). That requirement is as
applicable to a defendant as i t is to a p la in t i f f ,
fo r the necessary vigorous con test o f issues
requires two competing parties. This Court has
- 45
repeatedly held that a party lacks standing to
l i t ig a te an issue i f success in the l i t ig a t io n w ill
not accrue to i t s b e n e f i t . Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26 (1976);
ffarth v. Seldin, 422 U.S. 490 (1975). A fo r t io r i
the required interest is lacking where success in
the l i t ig a t ion w ill operate to the disadvantage of
the "prevailing” party. Even where the p la in t i f f
himself has standing to bring an action, i t must be
brought against a party with standing to defend
i t .
An adversary relationship does ex ist between
the p arties ' to th is case as to the ultim ate
outcome —* whether the defendants can continue
their affirmative action program. Sut the purpose
o f the case or controversy requirement is. to
insure that the p arties w i l l aid the court by
v ig orou s ly con tes t in g each o f the subsid iary
issues o f law and fa ct which the court must
d ec id e . O rd in ar ily a controversy as to the
u ltim ate issue w i l l be adequate to prompt the
parties to controvert a l l reasonably disputable
su b s id ia ry is s u e s . 3ut a d ispute as to the
outcome of the action is insuffic ient to create a
- 46
"case or controversy1* where there are no adverse
in te re s ts as to a c r i t i c a l question o f law or
fact.
Were i t possible for an action such as this to
proceed as it did below, with the judges le f t to
their own devices to determine i f there was past
discrimination against blacks, i t would be equally
perm issib le for the defendants to jo in the
p la in t i f f in a formal stipulation that there had
never been such discrimination. Of course, the
courts would not be bound by a stipulation that
was contrary to the truth, and the courts w ill not
decide a question presented by "stipulated" facts
that are not the case. Swift & Go. v. Hocking
Valley R.R. Go. , 243 U.S. 281, 289 (1917). But
the courts would have no way o f a scerta in in g
the accuracy o f such a s t ip u la t io n . S t ip u la
tions are ordinarily accepted because the courts
can rely on the adverse interests o f the parties
to assure that stipulations w il l only be agreed
upon i f true; no such presumption can be relied
upon where, as here, i t is in the interests o f a ll
parties to agree there is no history of discrim i
nation .
- 47
An action against a defendant who lacks any
adverse in t e r e s t in a key fa c tu a l issue poses
A rt ic le I I I problems similar to Chose presented
by "friendly actions" which chis Court has consis
te n t ly refused to d ec id e . United States v .
Johnson, 319 U.S. 302, 305 (1943) (no "honest and
actual antagonistic assertion o f r ig h ts " ) ; Lord v .
V eazia , 8 How. 251, 254—55 ( 1850). Regarding
the question of past discrimination "the p la in t i f f
and defendant have the same interest, and chat
in te re s t [ i s ] adverse and in c o n f l i c t with
the in te r e s t o f th ird persons, whose r igh ts
would be seriously affected i f the question . . .
was decided in the manner that both o f the parties
to chis suit desire it to be ." Lord v. Veazia,
suora , 8 How. at 255. The instant case bears
a substantial resemblance to Chicago etc. R.R.
v . r*e 1 lman, 143 U.S. 339 (1892), an action bet
ween a ra i lr o a d and passenger regarding the
v a l id i t y o f s ta te p r ice reg u la t ion which this
Court dismissed at the suggestion o f the state.
Even though there was no claim or evidence o f
co llusion , the Court thought i t inappropriate to
decide a case in which the amicable relationship
43
between the parties resulted in an abortive t r ia l
of complex factual issues, lacking "presentation
of a l l the facts from the lips o f witnesses, and a
fu l l inquiry into th em ... ." 143 U.S. at 345. In
such a case the in terv en tion o f an in teres ted
party does not confer on the court jur isd ict ion
which i t orig inally lacked. United States v .
Johnson, supra.
We suggest that these d i f f i c u l t ie s w ill exist
under any construction o f T it le VII which requires
the defendant in a case such as this to adduce
ev-idence or make allegations which encail a "real
and appreciable" danger of increasing the l i k e l i
hood that the defendant w il l be held liab le to
th ird p a r t ie s , includ ing black workers or the
United States. See Marchetti v.,United States,
390 U.S. 39, 43 (1968). Clearly such a defendant
cannot be required to prove i t was g u i l ty o f
d is cr im in a t ion . Neither can i t be forced to
adduce a prima facie case o f past discrimination,
for 3uch a prima facie case would sh ift to the
employer the burden of proof in any subsequent
a ct ion by m inority employees or a p p lica n ts .
Teamsters v . United States , sunra, 431 U.S. at
- 49 -
359-62 ; Franks v . 3owman T ransportation Co. ,
supra, 424 U.S. at 772, Similarly, a defendant
cannot be asked to admit and to prove that i t had
believed it. was discriminating against blacks, for
such an admission might provide grounds for an
award o f punitive damages. See Carey v. Piohus,
55 L.Ed.2d 252, 260—61, n . l i (1978). The standard
we set out in part II A, unlike the Fifth Cir
c u i t 's construction o f T itle VII, poses none of
these A rticle III problems.
C. The Fifth Circuit Has Given T itle
VII an Unconstitutional Construction
The F ifth C ir cu it construed T i t l e VII to
p roh ib it ra ce -con sc iou s remedies to co r r e c t
"soc ie ta l discrimination", a phrase which denoted
discrimination by anyone ocher than the defendants
themselves. As th is Court has cons i s t.ent ly
recognized, race-conscious p o lic ies are frequently
"the one tool absolutely essential" for redressing
past d is cr im in a t ion . North C arolina 3d. o f
Ed. v . Swann, 402 U.S. 43, 46 (1971). Thus, under
many i f not most circum stances T i t l e VII, as
construed below, would prohibit any meaningful
- 50 -
e f f o r t by an employer to provide redress fo r
discrimination by other employers, or by state, ,
loca l or federal o f f i c i a l s . Any such prohibition
would v io late the Fifth Amendment, which applies
to fed era l l e g i s la t i o n the same con stra in ts
applicable to the states under the Equal Protec
tion C la u s e . See Bolling v. Sharpe, 36-7 U.S. 497
(1954).
A blanket prohibition against race-conscious
redress o f d iscr im in a tion by others would be
neutral on its face. But, like the prohibition in
Hunter v. Erickson, 393 U.S. 385 (1969), i t would
be far from neucral in its operation. It would noc
deny to whites any remedies which they now enjoy,
for whites have never been subject to the long
standing pervasive discrimination that has been
in f l ic ted on blacks and certain other minorities.
Hernandez v. Texas, 347 U.S. 475, 478-79 (1954).
Mot only, as in Hunter, do whites not need such
redress , but as a p r a c t ic a l matter they would
not q u a l i fy fo r i t were i t a v a i la b le to a l l
victims of discrimination. T itle VII, moreover,
would noc prevent an employer from using a benefi
cent quota or program to help people who suftered
in the past from physical d is a b i l i t ie s , i l ln ess ,
- 51
or discrimination on the basis of age or p o l i t ica l
v iew s. Only women and r a c ia l m in or it ie s as a
p r a c t i c a l matter would be cut o f f from such
assistance. The prohibition created by Che Fifth
C ir cu it is fa r more r e s t r i c t i v e than that in
Hunter, in which the C ourt struck down a c i t y
charter provision that established special re
quirements for enacting an open housing ordinance
but s t i l l permitted the adoption of one. Here
the purported prohibition against race-conscious
employer redress is absolute.
3oth the-- states and federal government are
free to enact, and repeal, laws providing remedies
fo r v ictim s o f d is c r im in a t io n . Railway Mail
Association v. Corsi, 326 U.S. 88 (1945). 3ut this
Court has never upheld leg is la tion prohibiting
voluntary steps to provide such redress. Cer
ta in ly the remedial measures required by the
Constitution of a public entity to redress its own
d is cr im in a t ion cannot be p ro h ib ite d . North
Carolina Bd. o f Ed. v. Swann, supra. We submit
that voluntary p r iva te a c t ion to redress the
d iscr im in a t ion o f others is a lso p rotected -by
the Fourteenth Amendment. The Thirty-Ninth-
Congress which framed the Fourteenth Amendment
c learly approved the numerous private organiza-
- 52 -
tioiis, generally ' known as Freedmen' s Societies ,
which were actively engaged a fter the C ivil War in
providing special r e l ie f and assistance, including
education and job t ra in in g , to b lacks . That
Congress enacted a se r ie s o f ra ce -con sc iou s
federal programs intended to operate jo in t ly with
those private e fforts and the Fourteenth Amend
ment, was seen as providing a constitutional basis
23/for this federal a c t iv ity .— Moreover, the men
who framed the Amendment acted against a long
h is to ry o f fed era l e f f o r t s under the Fugitive
Slave Act to p ro h ib it p r iva te a ss is ta n ce to
24/runaway slaves,— and were determined to reverse
the past r o le o f the fed era l government from
obstructing to assisting such private e f fo r ts .
For the f i r s t century a f t e r Emancipation,
p riva te ra ce -con sc iou s voluntary a c t ion to
remedy d is cr im in a t ion by others was v i r t u a l ly
23/ Brief o f the N.A.A.C.P. Legal Defense and
Educational Fund, I n c . , as Amicus Curiae, No.
76-811, pp. 10-53.
24/ J. ta n B ro e k ,Equal Under Law, 57-65 ( 1951);
the 1850 Fugitive Slave Act provided c i v i l and
criminal l ia b i l i t y for anyone assisting a runaway
slave. 11 Stat. 462, § 7.
- 53 -
the only form o f redress a v a i la b le to b la ck s .
Today such a ct iv it ie s remain o f v ita l importance.
Congress could not conceivably prohibit charities
or private foundations from attempting through
race-conscious programs to a llev iate the e ffects
o f discrimination. In 1963 an employer in Louisi
ana, had i t had the courage to break with loca l
p re ju d ice , could have o f fe r e d employment to a
b lack man o-r woman in a good fa ith e f f o r t to
redress in a limited way a lifetim e of discrimina
t ion at the hands o f s ta te o f f i c i a l s or other
private employers. Congress did not have the power
to prohibit such a beneficent act, and there is no
reason to believe i t intended to do so.
Sven i f T itle VII as construed by the Fifth
Circuit is noc unconstitutional per se , it cer
tainly would be in many instances. As construed
below T it le VII prohibits a private employer from
using a race-conscious program to remedy unconsti
tu t io n a l d is cr im in a t ion by s ta te or federa l
o f f i c i a l s . Both state and federal o f f i c i a l s were
involved in the funding and supervision o f the
Louisiana vocational schools which, as we note
infra pp. 93-95, denied certain cra ft training
- 54 -
to blacks because o f their race; the history o f de
jure discrimination in Louisiana public schools is
well known- The likely impact o f these practices
on blacks who might have sought work at Kaiser is
readily apparent. Cf. Gaston County v. United
S ta te s , 395 U.S. 2S5 (1969 ). For most o f the
victims of that government discrimination the only
e f fe c t iv e remedy available would be the sort o f
training and employment program offered by Kaiser;
to forbid that would be to perpetuate the very
discrimination which the Fourteenth Amendment was
enacted to prohibit.
3ut an employer could not ordinarily deter
mine whether the past discrimination whose burden
an applicant s t i l l bore was su ff ic ien t ly tainted
by state action to place it outside the permis
s ib le scope o f T i t le VII. "The question o f
whether p a r t ic u la r d iscr im in a tory conduct is
private, on the one hand, or amounts to 'state
a c t io n , ' on the other hand, frequently admits of
no easy answer," Moose Lodge No. 197 v. I r v is , 407
U.S. 163, 172 (1972). An employer cannot reason
ably be expected to conduct the necessary investi
gation into the history o f each applicant and of
- 55
the state where he or 3he was educated and trained.
I f required -to guess at its p er il whether the past
discrimination in f l ic ted on a particular applicant
involved state action, the p oss ib i l i ty o f l ia
b i l i t y to a rejected white would deter a l l but the
hardiest of employers from providing race-con
sc iou s redress to any blacks at a l l . Such a
c h i l l i n g e f f e c t on c o n s t i t u t i o n a l ly p rotected
a c t i v i t y is im perm issible. See N . A . A . C . P .
v. Button, 371 U.S. 415, 433 (1963).
T itle VII, moreover, now applies to stare and
local governments; in the Fifth C ircu it 's view
Louisiana and Mew York are also forbidden to use
race-conscious employment programs to aid victims
of private discrimination in their own states or
p u b l i c d i s c r i m i n a t i o n in any o t h e r s t a t e .
National League o f Cities v. Userv, 426 U.S. 833,
847 (1 9 76 ), express ly warned against fed era l
in te r fe re n ce with voluntary lo c a l a f f irm a tiv e
action plans, and Gaston County noced that, where
neutral s ta te p ra c t ic e s would perpetuate past
discrimination, there seemed l i t t l e "legal s ig
n i f i c a n c e " to -whecher that d iscr im in a t ion had
occurred in another state. 395 U.S. at 293 n. 9.
- 56 -
Title VII could not constitutionally re s tr ic t the
power of a state or loca l government to remedy
such d iscr im in a t ion by, fo r example, the 1973
Louisiana sta tu te requ ir in g that a f f irm a tiv e
a ct ion be taken in f i l l i n g new p o s it io n s in
vocational training schools "[wjhenever the ratio
o f members o f the m inority to m ajority race
employed at a ll levels in the schools is substan
t ia l ly out of keeping with the minority to major
ity race ratio o f persons in the r e g io n . . . . " La.
Rev. Scat. Ann. 51996C. T i t l e VII should be
construed to avoid this d i f f i c u l t y , and, since the
statute on its face makes no d ist inction between
public and private employers, the same construc
tion should apply to both.
III . THIS AFFIRMATIVE ACTION PLAN IS
PERMISSIBLE UNDER TITLE VII
A. The Plan Was Properly Instituted
The Industrial Relations Superintendent for
Kaiser's Grammercy plant stated in general terms
the reasons why Kaiser and the Steelworkers
instituted their plan:
. . . the Company . . . [and] the Union, looked
around and read the Court decisions being
- 57 -
made. We looked at the settlem ent that
had just been made with the steel industry
and the stee l companies. We looked at Che
large' sums o f money that companies were
being forced to pay, and we looked at our
problem, which was chat we had no blacks in
the cra fts , to speak o f . A. 83.
While Kaiser neither admitted chat it had d is
criminated in the s e le c t io n o f craftsmen nor
introduced d e ta i le d evidence concerning i t s
self-examination, the need Co solve this "problem"
when viewed in Che light o f Kaiser's employment
p ra c t ic e s — j u s t i f i e d , and even com pelled,
Che adoption o f an affirmative action plan. The
jo in t Company-Union Committee—— which reviewed
the representation o f minority and female employ
ees in the trade, cra ft and maintenance c l a s s i f i
cations in Kaiser plants agreed that chis repre
sentation "must be increased in order to assure
fu l l compliance with the standards presently being
enunciated by Che Government and recent court
25/ The Master Aluminum Agreement obligated a
j o in t Company-Union committee to review the
representation of minority and female employees in
cra ft jobs. A. 139—55 (Joint Ex. 2). The parties
did not introduce any evidence concerning Che
scope o f chat review.
- 53 -
decisions". A.. 145 (Joint. nx. 2 ). —
Kaiser and the Steelworkers had four inde
pendent. but interrelated ju s t if ica t ion s for the
adoption of an affirmative action plan: (1) to
provide a remedy for prior discriminatory prac
t ic e s ; (2) to avoid engaging in current discrim i
natory practices; (3) to provide a remedy for the
discriminatory practices o f others in the uraining
and development o f c r a f t workers; and (4) to
ensure compliance with Executive Order 11,246.
1. K a iser 's Prior D iscr im in a t ion . The
d is t r ic t court determined that the evidence did
not establish that Kaiser had discriminated either
in hiring or in the selection o f cra ft employees.
G. Pet. 64a-65a. The court of appeals majority
26/
26/ Kaiser o f f i c ia l s described in some deta il
the reasons why the affirmative action plan was
necessary 'and lawful: (1) as a "d irect result of
employment discrimination over the years [and]
the lack of opportunity on the part o f the blacks
black craftsmen were unavailable, A. 90
(B oub le ), see a lso A. 93, 108 (B ou b le ), A. 63
(English) (sp e c i f ica l ly describing discrimination
in the building trade programs); (2) recruiting
e f f o r t s to a t t r a c t a rep resen ta t iv e number o f
sk illed black craftsmen had been unsuccesstul, A.
91-92 (Bouble), A. 63 (English); (3) the Company
aoced Che d is t r ic t court 's finding and stated chat
the "appellants P^aiser and the Steelworkers] a ll
but concede that Kaiser has not been guilty o f
any discriminatory hiring or' promotion" practices
(footnote omitted). G. Pet. 17a. Of course, as
Judge Wisdom stated, "no lit igant wanted co see
past discrimination found." G. Pec. 34a. Cer
tainly neither Kaiser nor the Steelworkers would
d i r e c t l y admit p r io r d iscr im in a t ion against
black workers in order to prevail in this lawsuit;
such an admission would only invite a lawsuit by
black workers which might result in substantial
monetary l ia b i l i t y , see pp. 31-34, supra.
The lack o f adversity of interest among the
parties concerning a central factual issue — Che
existence, or a reasonable basis for believing
26/ Cont'd
had a " fe a r o f the consequences" o f su its on
b eh a lf o f b lack employees brought by ‘p r iv a te
parties or the federal government, A. 84; (4) the
Company had been under considerable pressure from
Che O ff ic e o f Federal Contract Compliance, A. -
93-94 (Bouble), see p. 105 n.36, in fra ; (5) the
plan was considered "remedial . . . [ for ] d is
crimination in the past, noc ours, per se, out the
total sum and substance o f education and training
to obtain s k i l ls , that created a situation chat
called for a remedy such as1 the one we derived out
o f our d iscu ss ion s [with the U nion ]," A. 98
(3ouble).
- 60 -
in the- ex is te n ce , o f p r io r d is c r im in a t io n —
raises serious questions concerning the ju s t i c i
a b il ity o f this action, see Section II B, supra.
Moreover, the absence o f any l i t i g a n t with an
interest in coming forward with proof o f prior
discrimination creates serious evidentiary prob
lems which are illustrated by the fa ilure o f the
•parties in this case to introduce relevant and
available evidence concerning the possible ex is -
• • • 27 /tence or prior discrimination.— These eviden
t ia ry problems requ ire that, in such cases
as this, the courts must carefully scrutinize the
evidence because i t is not in the interest of any
27/ For example, the parties did not introduce
any evidence on the following important issues
concerning the question of prior discrimination at
the Kaiser plant: (1) the findings by the Office
o f Federal Contract Compliance concerning the
discriminatory practices at Kaiser and its recom
mendation for remedying the e ffects o f those prac
t ic e s , see pp. 104-05, in fra ; (2) the existence
of segregated f a c i l i t i e s ; (3) the racia l composi
tion of the supervisory s ta ff and whether there
were any co n tro ls concerning the e x e rc is e o f
supervisory d iscretion, see p. 78 n.42, ultra;
(4) the census data concerning the a va ilab il ity o f
s k i l le d c r a f t workers in the labor fo r c e , see
p. 67 n.31, in fra ; (5) actual job descriptions,
- 61
party to develop a fu l l factual record on the
possible existence o f prior discrimination. See
Chayes , The Role o f the Judge in Public Law
L itigation . 89 Harv. L. Rev. 1281, 1296-97 (1976).
Furthermore, the courts in such cases should use
their fu l l authority to take ju d ic ia l nocice of
relevant facts:
A ppellate courts have a s p e c ia l need to
re sor t to fa c ts not found in the record .
When the question before the Court is not
merely the rights of the parties, but the
27/ Cont' d
qualifications and pay rates for cra ft jobs; (6)
the qualification standards, employment casting,
education requirements, e t c . , i f any, which Kaiser
has used in selecting applicants for hire, see
pp. 81-83, in fra ; (7) the actual application of
the standards for the selection o f craftsmen prior
to 1974, see p. 73 n.42, in fra ; (8) any ju s t i f i c a
tion for the use o f a five or three year "prior
industrial experience" requirement for selection
as a craftsman prior to 1974, see p. 69, in fra ;
(9 ) the date when the f iv e year experience
standard for hire into the cra ft positions was
reduced to three years, see p. 70 n.32, in fra ;
(10) the deta ils , including the chronology, of
Kaiser's self-described active recruiting e fforts
for black craftsmen, see p. -77 n.41, infra; (11)
the method for Che selection o f craftsmen in 1974
which appears Co be in v io la tion o f Che affirma
tive action plan, see o. I l l , infra.
- 62 -
interests o f others who nay be a ffected by
the rule the Court makes to govern the case,
Lt would be f o o l i s h f o r the Court to
rely only on the evidence the parties have
chosen to prove below.28/
In th is case, and in others l ik e i t , i t is
c r i t i c a l that the courts take proper ju d i c ia l
notice of relevant facts because the lit igants do
not have an interest in the fu l l presentation of
the evidence; the substantial rights of persons
who are "not parties to the lawsuit are a ffected;
and the authority o f the federal government to
achieve the national policy o f equal employment
29/opportunity is at issue.—
28/ 21 Wright and Graham, Federal Practice and
Procedure §5102 at 462-63 (1 9 77 ); see also
Weinstein, 1 Evidence 1200[Q3] .
29/ The Court extensively relied on jud ic ia l
n o t ice in an analogous case , Regents o f the
U niversity -of C a l i fo rn ia v. 3akke, supra, 5 7
L.Ed.2d at 784-88, 790-92 (op in ion o f Powell,
J . ) , 821-26 (opinion o f 3rennan, White, Marshall,
Blackmun, J J .) . See also, Roe v. Wade, 410 U.S.
113, 130-147, 149 (1973); Keyes v. School Pis*-
t r i c t No. 1, 413 U.S. 189, 197 (1973); Beauharnais
v. I l l i n o i s , 343 U.S. 250, 258-61 (1952); Moore v .
East Cleveland, 431- U.S. 494, 508-09 4 a .4 (1977)
(3rennan, J ., concurring); c f . United States v .
Carolene Products Co. , 304 U.S. 144, 148-50
(1938).
- 63
The evidence, when properly viewed, indi
cates"—that Kaiser had a reasonable basis fo r
believing that it had engaged in discriminatory
practices and that i t was required to formulate
a remedial affirmative action plan. Moreover,
the evidence establishes, contrary to Che legal
conclusion of the d is t r ic t court, a prima facie
case o f d is cr im in a t ion with respect to (a)
K a iser 's s e le c t io n o f craftsm en, .(b) K a iser 's
operation o f the cra ft training' program prior to
1974*, and (c) Kaiser's employment of industrial
workers. However, since the proper standard is
whether Kaiser had a reasonable basis to believe
that its practices were discriminatory and not, as
the lower courts held; whether there was s u f f i
cient proof to establish a v io la tion o f the fa ir
employment laws, it is not necessary to reverse
Che conclusion of no discrimination — although
incorrect — in order to reverse the judgment.
S ta t is t ica l proof plays an important role in
ju d i c ia l and adm in istrative determ inations o f
whether pract-ices v i o la t e the f a i r employment
laws. S im ila r ly , a s t a t i s t i c a l analysis may
provide a reasonable basis fo r an employer to
conclude that its prior employment practices were
- 64 -
-d iscr im inatory and that 'a f f irm a t iv e a c t ion is
appropriate. See pp. 36—37, supra. In contested
l i t i g a t i o n , evidence o f s t a t i s t i c a l d is p a r i ty
may provide the basis for a prima facie showing o f
discrimination within two separata theoretical
frameworks. Under the f i r s t theory, that o f
adverse impact, the p la in t i f f "need only show that
the fa c ia l ly neutral standards in question select
applicants for hire in a s ign ificantly discrimina
tory pattern." Dothard v . Rawlinson, supra, 433
U.S. at 329. "There is no requirement . . . that a
s ta t is t ica l showing of disproportionate impact
must always be based on analysis of the character
is t ic s of actual applicants." Id . at 330. I f
adverse impact o f the standard is demonstrated,
the employer must meet "the burden-of showing that
any given requirement [has] . . . a manifest re la
tionship to the employment in question." Griggs
v. Duke Power Co. , supra, 401 U.S. at 432.
Once the employer meets this burden, the p la in t i f f
may then show that other standards which have less
or no discriminatory e f fe c t would also "serve the
employer's legitimate interesc in 'e f f i c ie n t and
trustworthy workmanship.'" Albemarle Paper
Co. v. Moodv, surra, 422 U.S. at 425.
- 65 -
Under Che second theory, that o f disparate
treatment, p roo f o f d iscr im in a tory motive is
required but in some circumstances motive can be
inferred from the "mere fact o f differences in
treatment," Teamsters v. United States, supra, 431
U.S. at 335 n.15, 339-340 n.20; the significance
o f th is d i f f e r e n c e may be demonstrated by a
s ta t is t ica l evaluation, Hazelwood School D istrict
v. United States, supra, 433 U.S. at 308-09- n.14,
311 n.17. The burden then sh ifts to the defendant
t o . demonstrate that the p l a i n t i f f ' s p roo f is
"either inaccurate or in s ig n if ica n t ." Teamsters
v. United States, supra, 431 U.S. at 360. Evalua
tion of the s ta t is t ica l evidence here indicates
that there was a reasonable basis to believe that
Kaiser discriminated in its practices regarding
Che selection and training of craftsmen and the
employment o f industrial workers under both the
adverse impact and the disparate treatment theo
ries .
a. Selection o f Craftsmen. Prior to Che
in s t i t u t i o n o f the a f f irm a tiv e a c t ion program
Kaiser employed 273 cra ft workers at its Grammercy
plant,, o f whom on ly 5 o r 1.83% were b la c k .—
A. 167 (K. Ex. 3). The large majority o f these
craftsmen were employed " o f f the street" rather
than being trained at the plant; only 28 craftsmen
were tra ined by Kaiser p r io r to 1974. See p.
79, in fra . In order to be hired as a craftsman,
an app lican t was required to have f iv e years
o f "pr ior industrial experience"; this requirement
was reduced, at some unspecified time, to three
years. A. 70 (English).
Kaiser obtained most o f its workforce from
two parishes, St. James and St. John the 3aptist,
which had a combined general population which was
46% black, and a workforce which was 39% black.
30/
30/ The Superintendent o f Industrial Relations
at K a iser 's Grammercy Plant, Dennis English,
t e s t i f ie d that prior to the 1974 Agreement "we had
about a two to one and a half percent minority . . .
we had a total o f five . . . [The tota l number o f
cra ft employees was] somewhere around 290, at that
t im e ." A. 62. We have s e le c te d the p rec ise
figure on the s ta t is t ic a l exhibit rather than the
approximation o f Mr. English for the purposes of
the s ta t is t ica l ca lculations. However, the result
would be approximately the same with either set of
numbers.
- 67 -
A. 60.— I t is apparent that the s e le c t io n
processr including the use o f the prior indus-
31/
31/ The actual census data were not introduced
by the p a r ties in th is case . The 1970 census
figures for St. James and St. John the 3aptist
Parishes show that the black proportion o f the
"blue co l la r " work force was actually 40.6Z, noc
39%. The census shows the fo l low in g r a c ia l
breakdowns for the workforce, U.S. Bureau'of the
Census, Census o f Population : 1970, Vol . 1 ,
C h a ra c te r is t ic s o f the P op u la t ion , Part 20,
Louisiana, Table 122 (h e r e in a fte r " Census" ) :
St. James St. John the Bantist
TOTAL BLACK
%
BLACK TOTAL BLACK
%
BLACK
Total
Employ -
ees 4, 976 2, 014 40.. 5 6,321 2, 312 36.6
Crafts 3 33 179 22. 9 1,246 253 20.3
Opera
tives 1,290 517 40.1 1,425 612 42.9
Laborers 456 343 75.2 665 479 72.0
Blue
Collar 2,529 1, 039 41.1 3,336 1, 344 40.3
- 68 -
t r ia l experience requirement, had a substantial
adverse impact on black, workers. While blacks
31/ Cont'd
St. James & St. John the 3aptist Combined
%
TOTAL 3LACK BLACK
TotaL
Employ
ees 11,297 4,326 38.3
Crafts 2,029 432 21.3
Opera
tives 2,715 1,129 41.6
Laborers 1,121 822 73.3
Blue
Collar 5,865 2,383 40.6
These figures include a ll the employed
these occupational categories. (The blue co lla r
category is the sum of the totals in the cra ft ,
op erative and la b orer c a t e g o r ie s ) . There are
no published census data by parish for the "expe
rienced" workforce which would include unemployed
as well as employed persons; nor are there pub
lish ed data by parish which d iv id e the c r a f t
category into sub-categories, e .g . , e lectr ic ian s ,
carpenters, as there are for states and Standard
Metropolitan S ta t is t ica l Areas, see nn. 36-38,
infra.
- 69
were 392 o f the labor force , they were only 22 o f
Che craftsmen employed at-Kaiser. Thomas Bouble,
who for eight years had been Kaiser's Director of
Equal Opportunity Affairs and who had been em
ployed by Kaiser for nineteen years, stated that,
as a r e su lt o f d iscr im in a t ion in employment
and training opportunity, blacks were underrep
resented in sk illed crafts "in every industry in
the United States, and in every area o f the United
States." A. 90. Moreover, blacks "until just
recently . . . did not get into [the] building trade
[training] programs" which provided a substantial
p ort ion o f the tra in in g opportun ity for c r a f t
positions. A. 63 (English), A. 104 (3ouble); see
also pp. 89-104, in fra .
Since th is p r io r e x p e r ie n c e • requirement
had an adverse r a c ia l impact, the burden in
l i t ig a t io n would fa l l on Kaiser to establish the
"business necessity" or manifest job relationship
of the requirement. See p. 64, supra. There is
no evidence concerning the business necessity o f
this requirement. Nor is it l ik e ly that Kaiser
could show any manifest job relationship for this
apparently arbitrary requirement: the require
ment was changed from five years to three years
- 70
without any apparent harm;— the requirement
for prior industrial as opposed to other relevant
experience — e . g . , in the armed fo r c e s , as a
private contractor, etc. — seems un justif iab le ;
and the a p p l ica t io n o f the same requirement
across-the-board to cra ft positions which varied
33/greatly— does not appear to be validly related
to the job requirements of each position. Thus,
the evidence in d ica tes that under the adverse
impact principle ' of Griggs and Albemarle Paper,
Kaiser had reason to believe that it had violated
34/T itle VII.—
Moreover, the Company had reason to believe
that its craft selection practices also consti
tuted a v io lation o f T itle VII under the disparate
32/
32/ The record does not indicate when Che re
quirement was changed.
33/ At the Grammercy p lant, Kaiser employed
craftsmen in the following occupations: General
Repairman, Air Conditioner Repairman, Insulator,
Carpenter-Painter, Garage Mechanic, Machinist,
E lectrician, Instrument and E lectrica l Repairman.
A. 167 (K. Ex. 3).
34/ The d is tr ic t court stated that Che low pro
portion of blacks in Che plant's cra ft population
71
treatment. principle - set forth in Teamsters and
Hazelwood School D is tr ic t . See pp. 64-65, supra.
While Company o f f i c ia l s te s t i f ied that trained
blacks were "unavailable" despite Kaiser's active
recruiting e f fo r ts , A. 62-63 (English), A. 90, 93
(3ouble), they did not refer to any census data in
support o f their assertion. In fact , the census
34/ Cont' d
"might suggest that Kaiser had d iscr im in ated
against blacks when f i l l in g cra ft p os it ion s ." G.
Pet. 65a. The court then concluded that th is
showing o f discrimination was rebutted by che mere
fact that Mr. English, the Industrial Relations
Superintendent, had t e s t i f i e d that Kaiser had
vigorously sought black craftsmen. _Id. Even i f
Mr. English's protestation o f good faith recru it
ment is accepted — and there is con s iderab le
doubt concerning the recruitment e f fo r ts , see pp.
77-78 in fra — th is con c lu s ion is contrary to
applicable law. "Congress directed the thrust of
the Act to the consequences of employment prac
t ice s , not simply che motivation," Griggs v. Duke
Power, supra, 401 U.S. at 432. The d i s t r i c t
court 's fa ilure to consider the "consequences" o f
the prior experience requirement was plain error.
In fact, in a case involving another Kaiser plant
the F ifth C ircu it reversed a d i s t r i c t c o u r t 's
finding o f no discrimination on almost identical
facts, Parson v. Kaiser Aluminum, suora, 575 F.2d
at 1389-90.
72 -
data show— chat Che proportion, o f blacks working
in crafts at Kaiser (approximately 2%) was d is
proportionately low when compared Co the available
p roportion o f tra ined b lacks l i s t e d in Che
"craftsmen and kindred workers" category in Che
workforce for Che parishes of St. James and Sc.
John Che BaDtisc (21.3%), see p. 67 n.31, supra,
* — 36 /for che- state of Louisiana (16.0%)— or for Che
35/ This. -Court has Caken ju d i c ia l noCice o f
census- data when determining whether chere is a
prima facie case of employment discrimination.
See Griggs v. Duke Power, supra , 401 U.S. at
430 n .6 ; c f . Pochard v. Rawlinson, suora , 433
U.S. at 329-30; see also Watkins v. Scott Paper
Co. , 530 F. 2d 1159, 1185 n.36 (5th C ir . ) , c e r t ,
denied, 429 U.S. 861 (1976).
Percent
36/ Louisiana: Total Wh ite Black 3 Lack
Total ex
perienced
labor force 1,217,334 903,556 311,110 25.6
Craftsmen
and kindred
workers 16.0
C ament ers
177,770
18,193
149,039
14,278
28,464
3,884 21.3
73
Standard Metropolitan S ta t is t ica l Areas o f the
c i t ie s o f New Orleans C18 .*71)—1and Bacon Rouge
36/ Cont1 d
Total White 31ack
Percent
Black
Mechanics &
Repairmen 37,627 32,096 5,493 14.6
Electricians 7,967 7,713 242 3.0
Census, Table 172.
37/ New Orleans •
Total ex
perienced
labor force 386,072 281,715 103,234 26.7
Craftsmen
and-kindred
workers 52,433 42,522 9,792 18.7
Carpenters 4,366 3,196 1,165 16.7
Mechanics &
Repairmen 11,029 9,430 1,589 i4 .4
Electricians 2,713 .2,590 118 4.3
Census, Table 172.
- 74- -
(17.8Z)
When Che s ta t is t ic a l analysis adopted'by this
Court in Castaneda v. P a rt id a , 430 C.S. 482
(1977), and Hazelwood School D is tr ic t , supra, is
38/ 3aton Rouge
Total
Total ex-
perienced
labor force 106,600
Craftsmen
and kindred
workers 16,639
Carpenters 1,292
Mechanics &
Repairmen- • ■ 3,085
Electricians 800
White Black
Percent
Black
78,780 27,663 30.0
13,674 2,960 17.8
850 442 34.2
2,596 489 15.9
781 19 2.4
Census, Table 172.
- 75
applied: Co the disparity becveen the proportion of
blacks in the cra ft positions in the plant and the
p roportion o f b lacks in the w orkforce o f the
parishes, of the State of Louisiana, or o f the
39/3aton Rouge or New Orleans SMSA,— the results
indicate a prima facie case of intentional d is
crimination. This analysis shows that there is a
difference of 7.8 standard deviations between the
actua l number o f blacks hired as craftsm en by
Kaiser and the number one would expect as a result
of nondiscriminatory hiring from a labor market
consisting o f the parishes o f St. James and Sc.
John the B ap tist—— and a d i f f e r e n c e of 6.4
39/ These workforces have been chosen in addition
to Che w orkforce o f St. James and St. John's
parishes because Kaiser's o f f i c ia l s stated that
they actively recruited craftsmen throughout the
area and s p e c i f i c a l l y in Bacon Rouge and New
Orleans. A. 62. Moreover, the published census
data for the parishes do not divide the " c ra ft s
men" category into sub-categories of "carpenters,"
"mechanics and repairmen" and " e l e c t r i c i a n s . "
40/ This s ta t is t ica l model measures fluctuations
from the expected value in terms of the standard
- 76
standard deviations i f Che Labor market includes
Che entire state o f Louisiana. A. fluctuation o f
more Chan two or three standard deviations "under—
cu t [s ] Che hypothesis Chac decisions were being
made randomly with respect Co race ," Hazelwood
School D is tr ic t , supra, 433 U.S. at 311 n.17. In
fact, even i f the black proportion o f the a v a il-
40/ Cont' d
deviation; which is defined as the square root
o f the product o f the tota l number in the sample
(here, 273) times the probability o f selecting a
black (.213) times the probability o f selecting a
non-black (.787). The standard deviation based on
the w o r k fo r c e o f the two p a r is h e s is 6 .8 .
The d i f fe r e n c e between the expected (.213 x
273 - 58) and observed number o f b lacks h ired
during this period is 53, which is 7.8 standard
deviations ([58-5] divided by 6.8 = 7 .8 ). Cas
taneda v. Partida, supra', 430 U.S. at 496-97. The
likelihood Chat a comparable cra ft w o r k fo r w o u ld
occur by chance is less than 1 in 10 . On
average, in only one o f more Chan one hundred
million t r i l l i o n randomly selected groups each
conta in ing 273 craftsmen re c r u ite d from this
workforce would there be a group conta in ing
five or fewer blacks. This s ta t is t ic was derived
from the binomial probability d istribution . See
H o s te l le r , Rourke, Thomas, P ro b a b i l i ty with
S ta tist ica l Applications, 130-146 (1970); Finkei-
s t e in , The A pp lica tion o f S ta t is t ica l Decision
Theorv co the Jury Discrimination Cases, 80 Harv.
L. Rev. 333, 353-357 (1966).
- 77
able pool o f .sk i l led workers had been 3Z — i . e . ,
h a lf o f that which the census data indicate for
Louisiana — there would have been a d ifferen ce o f
3.7 standard deviations between the actual number
and the expected number o f black craftsmen at the
Grammercy pLant.
Although the a v a i la b i l i ty o f trained black
craftsmen was much greater than K aiser 's super
intendent asserted, i t was, as he also indicated,
much less than would be expected absent d iscr im i
n a t ion in employment and t ra in in g programs
in the area. The superintendent's mere statement
that Kaiser engaged in an active minority re c r u it
ment program — a statement which was required in
order to avoid a d irect admission o f discrimina
to ry practices — does not rebut the prima fa c ie
41 / ;c a s e .— The s t a t i s t i c a l d i s p a r i t i e s in d ic a t e
41/ K aiser did not present s p e c i f i c ev id en ce
concerning the scope, duration or application o f
i t s recru itm en t e f f o r t s . In f a c t , the O f f i c e
o f Federal Contract Compliance, in a 1971 le t te r
to the Grammercy plant manager, indicated that
"K a iser had not been e f f e c t i v e in u t i l i z i n g
minority recruitment sources" and chat "a ffirm a-
- 78
th a t , whatever Che in t e n t io n o f K a is e r 's top
management', the se le c t ion practices for craftsmen
were applied in a r a c ia l ly disparate manner at Che
Grammercy p lant.—’1
41/ Cont1 d
Cive action as required by Che OFCC regulations
has not been Caken to id en tify and attract minor
ity a p p l ic a n ts . . . " The 1971 findings by the OFCC
were lodged by the United States with the Clerk o f
the Court, see G. P et ., p. 18 n .6.
42/ There was no evidence placed in the record
concerning who administered the se le c t ion system,
or what con tro ls , i f any, existed to insure Chat
Che system was being applied fa i r ly and without
d is c r im in a t io n . However, a 1973 OFCC "rev iew
o f persons t r a n s fe r r in g in to the maintenance
c r a f t s ( a l l Caucasians) rev ea led that s e v e ra l
Caucasians d id not possess the req u ired p r io r
ex p er ien ce f o r such t r a n s f e r s . . . . " The OFCC
Memorandum dated January 31, 1973, was lodged by
Che United States with the Clark o f the Court,
see G. Pet. , p. 18 n . 7.
At the Company's plant in Chalmette, Louisi
ana, where black workers had brougnc a lawsuit
a lleg ing unlawful discrim ination, there was also a
prior experience requirement for entry into c ra ft
p o s i t i o n s . The Fi f t h 'C i r c u i t observed chat
" [t ]h ere is some evidence in Che record that this
requirement is noc cons istently applied and that
decisions to waive or modify i t are within the
- 79
b C ra ft T ra in ing Programs. During the
p er iod from 1964 through 1971, the Company at
various times operated on -the-job training pro
grams for the positions o f general repairman and
carpenter-painter. A. 136 (Stipulation pp. 2 -3 ).
An employee was required to have three years o f
p r io r experience in the applicable job "category''
in order to enter the training program for general
43/ Jrepairman— and one year o f p r ior experience to
enter the program for carpenter-painter. During
the operation o f these programs, seventeen tra in
ees were enrolled in the general repairman program
and e lev en t ra in e e s were e n r o l le d in the c a r
penter-painter program. Only two o f the twenty-
e ig h t t r a in e e s , boch in the c a r p e n te r —p a in ter
program, were black. Id.
42/ Cont' d
d i s c r e t i o n o f the su p e rv iso r in v o lv ed in the
p r a c t i c e , " Parson v . Kaiser Aluminum,
supra, 575 F.2d at 1381"!
it2./ Although the prior experience requirement was
m od ified in 1971 to permit employees with two
years o f p rior experience to enter the program,
there was only one tra in e e in 1971. A. 126
(Stipulation p. 2 ).
- 78
Chat, whatever the in t e n t io n o f K a is e r 's top
management', the se le c t ion practices for craftsmen
were applied in a r a c ia l ly disparate manner at Che
42/Grammercy p lant.— •
’ 41/ Cont' d
Cive action as required by the OFCC regulations
has not been taken to id en tify and attract minor
ity a p p l ic a n ts . . . " The 1971 findings by the OFCC
were lodged by the United States with the Clerk o f
the Court, see G. P et ., p. 18 n.6.
42/ There was no evidence placed in the record
concerning who administered the se le c t ion system,
or what con tro ls , i f any, existed to insure that
the system was being applied fa ir ly and without
d is c r im in a t io n . However, a 1973 OFCC "rev iew
o f persons t r a n s fe r r in g in to the maintenance
c r a f t s ( a l l Caucasians) rev ea led Chat se v e ra l
Caucasians did not possess the req u ired p r io r
ex p er ien ce f o r such t r a n s f e r s . . . . " The OFCC
Memorandum dated January 31, 1973, was lodged by
Che United States with the Clerk o f Che Court,
see G. Pet. , p. 18 n. 7.
At the Company's plant in Chalmette, Lou is i
ana, where black workers had brought a lawsuit
a lleg ing unlawful discrim ination , there was also a
p r io r experience requirement for entry into c ra ft
p o s i t i o n s . The F ifth ‘ C ir c u i t observed that
" [ t jh e re is some evidence in the record that this
requirement is not cons istently applied and that
decisions to waive or modify i t are within the
- - 81
c . General Hiring Practices . Kaiser also
had- a reasonable basis fo r be liev in g chat i t had
engaged in prior discriminatory practices in it s
general h ir in g procedures. G. Pet. 35a (Wisdom,
J . , d issen tin g):
The evidence showed that although 39 percent
o f the area workforce was black, only 14.8
percent o f Kaiser 's employees in 1974 were
black. That was an increase from around 10
44/ Cent' d
each applicant regardless o f race . . . . " Furnco
Construction Corn, v . Waters, 57 L. Ed.2d 957, 969
(1978); see also G. Pet. 37a (Wisdom, J . , d issent
in g ) ; Rowe v. General Motors Corp. , 457 F.2d 348,
354 (5th Cir. 1972) ("The degree o f discrim ina
t io n . . . is unimportant under T i t l e V II .
Discriminations ■ come in a l l sines and a l l such
d is c r im in a t io n s are p ro h ib it e d by the A c t " ) .
In fa c t , Kaiser 's affirm ative action plan had
not even remedied the " s m a l l" d is c r im in a t io n
in the training program. I f Kaiser 's program had
operated in a r a c ia l ly neutral manner, then one
would ex p ec t that approxim ately ten o f the
trainees (the black proportion o f the workforce,
39Z, m ultiplied by the number o f p os it ion s , 28)
would have been black. Since only two blacks were
trained, the approximate number o f blacks who were
d iscr im in atorily denied this training opportunity
was e ight. Through t r i a l , only seven blacks had
been selected for the training program under the
affirm ative action plan.
- 80 -
This low proportion o f blacks in Che training
programs (7%) compared to Che proportion o f blacks
in Che workforce (39%) demonstrates the adverse
impact o f the Company's se le c t ion p ra ct ice . See
Griggs v . Duke Power Co. , su p ra , 401 U.S. at
4-30 n .6 ; Dothard v. Rawlinson, supra, 433 O.S.
at 329. The p r ior experience requirement was a
ready mechanism for discrim inatory exclusion o f
blacks from the c ra ft training programs as well as
from d ir e c t entry into the c ra ft p os it ion s . See
pp. 67-70, supra. While there was some evidence
concerning the cost o f the training programs and
an indication that this cost would be reduced bv
se lectin g persons with prior experience, these
statements do not establish a "business necessity"
for the use o f this discriminatory requirement.
G. Pet. 36a (Wisdom, J . , d issenting)
44/ The d is t r i c t court ignored the discriminatory
training program. The appellate court majority
attempted to dismiss this proof o f prior d i s c r im i - '
nation by concluding "that this program was so
limited in scope that the p r ior c ra ft experience
cannot be characterized as an unlawful employment
p ra c t ic e ," G. Pet. 17a n.13. T it le VII does not
countenance a discriminatory practice because i t
"only" has an impact on a few individuals: " I t is
c lear beyond ca v il that the ob liga tion imposed by
T it le VII ls to provide an equal opportunity for
- 8 3 -
outside workforce, 39Z, constituted a prima fa c ie
case o f pre—19-69 h ir in g d iscrim ination . Griggs v .
Duke Power Co. , su p ra , 401 U.S. at 430 n .6 ;
Dothard v . R aw linson , su p ra , 433 U.S. at 329.
Discrimination in h ir ing is d ire c t ly related to
discrim ination in the se le c t ion for c ra ft tra in
ing not only, as Judge Wisdom stated, G. Pet. 35a,
"because in the absence of- that d iscrim ination ,
more blacks could have entered a training program
based so le ly on s e n io r i ty , " but also because the
in s t itu t ion o f a new training program in which
se le c t ion was based upon date o f hire sen ior ity
would perpetuate the discrim ination in h ir ing and
might well constitu te a new v io la t io n o f the fa ir
employment laws.
2. M odification o f Kaiser's Present Prac
t ice s . In addition to remedying prior d iscr im i
natory p ra ct ices , an employer has an affirm ative
ob liga tion to insure that its present practices do
not c o n s t i t u t e o n -g o in g d is c r im in a t io n . An
employer does not s a t i s f y th is o b l i g a t i o n by
merely determining that it s practices were devel
oped and implemented without ra c ia l animus, buc
- 82 -
percent in 1969. The testimony that Kaiser
had h ired "the best q u a li f ied " before 196-9
le ft , open the p o s s ib i l i t i e s that Kaiser had
determined q u a li f ica t ion s through non va li-
dated t e s t s , o r im perm issib ly s u b je c t iv e
processes. The s t a t i s t i c s here constituted a
prima fa c ie case o f d iscrim ination . (Foot
note om itted.)
The in c re a se in the black, p ro p o r t io n o f
employees at the plant resulted from the adoption
by Kaiser in 1969 o f a plan fo r h ir ing one black
for each white hired u n til the black proportion o f
the plant workforce was comparable to the black
proportion o f the outside workforce. A. 82, 87
(English). This plan was adopted by Kaiser upon
the recommendation o f OFCC personnel who found
a fter a review o f the plant that Kaiser "had a
re la t iv e ly low percentage o f m inorities in the
workforce." A. 82. While the affirm ative action
plan f o r h i r in g removed the adverse impact or
d isp a r a te treatment from K a is e r 's post-1969
in i t ia l se le c t ion procedures, the severe d isparity
between the proportion o f blacks in the plant,
10-11Z, — and the proportion o f blacks in the
45/ The parties stipulated that in 1969 minor
i t ie s constituted "10 or 11 percent" o f the plant
workforce. A. 49.
- 85 -
the on ly r e a l i s t i c way fo r K aiser to s e l e c t
cra ftsm en in a manner which would not have an
adverse r a c i a l e f f e c t . A. 64-66 (E n g l i s h ) .
In order for Kaiser to lawfully hire sk il led
craftsmen from a labor force which was dispropor
t ion a te ly composed o f white workers, i t would have
had to develop v a lid , job —related measures for
evaluating relevant experience or s k i l l . — ' But
even i f K a iser cou ld dem onstrate that the ex
perience requirement was jo b -re la ted , the require
ment! would s t i l l be unlaw ful i f there were a
s e l e c t i o n system which had a le s s d i s c r i m i
natory e f fe c t and which would also have "se rv e [d ] ’
. . . [ i t s ] legitim ate in terest in ' e f f i c i e n t and
trustw orth y workmanship1." Albemarle Parer Co.
v. Moody, supra, 422 U.S. at 425. Here an a lte r
native system was availab le : a training program.
While Kaiser may have been able to develop and
47/ When an employer uses the p r io r "experience"
o f applicants as a se le c t ion c r i te r io n the em
ployer must show, i f the c r i te r io n has an adverse
r a c i a l im pact, that i t is a v a l id s e l e c t i o n
procedure. Uniform Guidelines on Emoloyee Selec
tion Procedures, 29 C.F.R. §§1607.3, 1607.16Q.
- 82 -
percent in 1969. The testimony that Kaiser
had hired "the best q u a li f ie d " before 196.9
le ft , open the p o s s ib i l i t i e s that Kaiser had
determined q u a li f ica t ion s through n on va li-
dated t e s t s , o r im perm issib ly s u b je c t iv e
processes. The s t a t i s t i c s here constituted a
prima fa c ie case o f discrim ination . (Foot
note om itted.)
The in c re a se in the b la ck p ro p o r t io n o f
employees at the plant resulted from the adoption
by Kaiser in 1969 o f a plan fo r h ir ing one black
for each white hired u n til the black proportion o f
the plant workforce was comparable to the black
proportion o f the outside workforce. A. 82, 87
(English). This plan was adopted by Kaiser upon
the recommendation o f OFCC personnel who found
a fter a review o f the plant that Kaiser "had a
re la t iv e ly low percentage o f m inorities in the
workforce." A. 82. While the a ffirm ative action
plan f o r h i r in g removed the adverse impact or
d isp a ra te treatment from K a is e r 's oos t -1 9 6 9
in i t ia l se le c t ion procedures, the severe d isparity
between the proportion o f blacks in the plant,
10—11Z, — and the proportion o f blacks in the
45/ The parties stipulated that in 1969 minor
i t ie s constituted "10 or 11 percent" o f the plant
workforce. A. 49.
- 37
to tra in inexperienced black, and white workers
rather than to concentrate i t s resources on an
attem pt to j u s t i f y p r e - e x i s t in g p r a c t i c e s f o r
se le c t in g "experienced" workers — which c lea r ly
would have r e s u l t e d in few b la ck s being h ired
— is p rec ise ly the type o f responsible business
- d e c i s i o n chat is req u ired f o r the e f f e c t i v e
implementation o f T it le VII.
M oreover, i f K aiser had con tin u ed to h ir e
49 /"experienced" craftsmen despite i t s knowledge—•
49/ Kaiser o f f i c i a l s acknowledged chat d iscr im i
nation in training programs limited the supply of
b la ck cra ftsm en , and that th is was one o f the
basic reasons for the in s t itu t io n o f the a ffirm a
tive action plan. Furthermore, the OFCG brought
this matter d ir e c t ly to the attention o f the plant
manager. After noting that in 1971 there was not
a s ingle black craftsman at the plant, the OFCC
stated that " [maintenance cra ft training programs
are needed; the q u a li f ica t ion and potentia l o f
m inorities presently employed at Kaiser should be
reviewed and those determined to be e l i g i b l e
should be given high p r io r ity for such tra ining,
any d i r e c t h i r in g in to these c l a s s i f i c a t i o n s
should include at least the minority ratio chat
ex ists in the company's recruitment area ." Letter
dated January 25, 1971, to Mr. Melancan, plant
manager, from Guy W. McCarty, C h ie f C ontract
Compliance O ff ic e r , see p.78 n.42, suDra.
- 84 -
must also consider the r a c ia l e f fe c t s o f those
p ra ct ices . Kaiser was required 'not only to cease
i t s re liance on "p r io r industria l experience" in
se le c t in g and training craftsmen, see pp. 65-70,
supra, but also to insure that it s new practices
were f r e e from d is c r im in a to r y e f f e c t . K aiser
faced a. d i f f i c u l t challenge in designing a work
able system. The d i f f i c u l t y was created by the
longstanding discriminatory practices o f employers
in the in d u stry ( in c lu d in g K a is e r ) , o f p u b l ic
educational in s t itu t io n s , and o f unions which a l l
contributed to blacks being severely underrepre
sented in the c ra ft labor force , see pp. 88-103,
in fr a . I f Kaiser had continued to re ly so le ly
upon affirm ative recruitment to attract a repre
sentative proportion' o f black craftsmen, i t would
have "end[ed] up baying at the moon, as i t were."
A. 93 (3ou b le ) .— The development o f a program
to tra in inexperienced employees or new hires was
46/ While Kaiser o f f i c i a l s underestimated the
a v a i la b i l i ty o f black craftsmen, i t is c lear that
they were correct in their general conclusion chat
discrim ination in employment and education had
res tr ic ted training opportunities and that blacks
were underrepresented in the sk il le d workforce.
- 89
practices would con stitu te a prima fa c ie showing
o f an intentional v io la t io n o f the fa ir emoloyment
3* General Discrimination in the Training
and Development o f Craft Workers. K aiser 's prior
se le c t ion practices — including it s s e le c t ion o f
c ra ft workers from the pool o f q u a lif ied c r a f t s —
men who had "p r io r industria l experience" and who
frequently were trained in programs operated by
the construction trade unions — must be examined
in l ig h t o f the longstanding practices o f d e l ib e r -
ate discrim ination in the c r a f t s .— These prac
t ice s contributed d ire c t ly to the present problems
o f the d is p r o p o r t i o n a t e ly high ra te o f b lack
unemployment and the limited a v a i la b i l i ty o f black
craftsmen. Given the e f fe c t s o f decades o f d is
crimination, i t was d i f f i c u l t i f not impossible
3 i / See e . g . , Commonwealth o f Pennsylvania
v . Local 542, Operating Engineers^ C iv il " Action
No; 71-2698 (E.D. P a ., Nov. 30, 1978), S l ip
Opinion at 122-43 (Higginbotham, J . ) .
52/ Kaiser o f f i c i a l s did,
p r a c t i c e s in th is l i g h t ,
sunra.
in fa c t , examine their
See n . 26 and p . 69 ,
- 90 -
f o r K aiser t o . adopt r a c i a l l y n e u tra l s e l e c
t ion procedures for c ra ft posit ions which did not
severely lim it the employment opportunities o f
b la ck workers. F a c ia l ly n eu tra l employment
p r a c t i c e s o f t e n have an adverse r a c i a l e f f e c t
because discrimination by educational in stitu t ion s
and by other employers and unions has limited the
s k i l l s and experience which black workers have
been permitted to acquire. In many circumstances
i t is unlawful for employers to ignore the e f fe c t s
o f such p ra ct ices , see pp. 69-71, supra, and in
a l l circumstances i t is a national p o licy o f the
highest p r io r ity to encourage voluntary action to
remedy those e f f e c t s , see pp. 38-40 , su p ra .
For a hundred years p r ior to the passage o f
the C iv il Rights Act o f 1964 the workplace for
blacks was marked by deliberate practices designed
to r e s t r ic t them to s p e c i f i c positions in the job
market and to eliminate them altogether from the
53/ . .s k i l l e d t r a d e s .— By the end o f the C i v i l War
blacks constituted the great m ajority, approxi-
53/ The history of this period is by necessity
summarized in this brief. A full historical
- 91 -
m ately 80Z, o f a l l s k i l l e d tradesmen in the
54/
South .— The predominance o f black-s in the
sk il led trades d ir e c t ly resulted from the fact
53/ Cont'd
d is c u s s io n o f b la ck s and the w orkplace may be
found in Spero and H a rr is , The Black Worker
(Atheneum e d . , 1963) ( h e r e i n a f t e r "Spero and
H arris") ; and a b r ie f but thorough discussion may
be found in Myrdal, An American Dilemma (Harper &
Row ed ., 1962) at 1079—1124 (hereinafter "Myrdal").
A thorough d is c u s s io n o f b la ck workers during
the period from World War I through World War II
is found in Weaver, Negro Labor, A N ational
Problem (1946) (h e r e in a f t e r "W ea ver") , and o f
blacks in labor unions in Marshall, The Negro and
Organized Labor (1965) (hereinafter "M arshall");
Marshall and Briggs, The Negro and Apprenticeship
(1967) (hereina fter "Marshall and 3 r ig g s " ) ; and
Northrup, Organized Labor and the Negro (1944)
( h e r e in a f t e r "N orth ru p ") . For more recen t
d iscussions, see H il l , Black Labor and The Ameri
can Legal System: Race, Work and the Law (1977),
and Gould, Black Workers in White Unions (1977).
54/ Spero and Harris, p. 16; Myrdal, p. 1101.
- 90 -
f o r K aiser t o . adopt r a c i a l l y n eu tra l s e l e c
t ion procedures for c ra ft posit ions which did not
severely lim it the employment opportunities o f
b la ck w orkers. F a c ia l ly n eu tra l employment
p r a c t i c e s o f t e n have an adverse r a c i a l e f f e c t
because discrim ination by educational in stitu tion s
and by other employers and unions has limited the
s k i l l s and experience which black workers have
been permitted to acquire. In many circumstances
i t is unlawful for employers to ignore the e f fe c t s
o f such p ra ct ices , see pp. 69-71, supra, and in
a l l circumstances i t is a national p o licy o f the
highest p r io r ity to encourage voluntary action, to
remedy those e f f e c t s , see pp. 38 -40 , su p ra .
For a hundred years p r ior to the passage o f
the C iv il Rights Act o f 1964 the workplace for
blacks was marked by deliberate practices designed
to r e s t r i c t them to s p e c i f i c positions in the job
market and to eliminate them altogether from the
53/
s k i l l e d t r a d e s .— By the and o f the C i v i l War
blacks constituted the great m ajority, aporoxi-
53/ The history of this period is by necessity
summarized in this brief. A full historical
- 93
vocational 3chooLs which "seldom fitte d them for
the current demands o f the- so -ca l le d 'Southern
58/I n d u s t r ia l R ev o lu t ion '."— 'A ccord ingly , blacks
were e f f e c t i v e l y prec lu d ed from entrance in to
formal training programs.
Blacks continued to be assigned Co segregated
and in fe r io r vocational education schools un til
well a fte r Brown v. 3oard o f Education, 347 U.S.
57/ Cont1d
in December o f 1865, the South Carolina Legis
lature passed an Act providing "that no person o f
co lo r shall pursue or practice the art, trade, or
business o f an artisan, mechanic, or shopkeeper,
or any o th er tra d e , employment, or b u s in e ss ,
(besides that o f husbandry, or that o f a servant
under a c o n tr a c t f o r s e r v i c e or l a b o r , ) on
his own account and for his own b en e fit , or in
partnership with a white person . . . un til he shall
have obtained a licen se therefor from the judge o f
the d i s t r i c t cou rt ------" McPherson, The P o l i t i c a l
History o f the United States o f America During the
Period o f Reconstruction (Reprinted 1969), p. 36.
These codes were abolished during Reconstruction
but they l a t e r reaooeared in va r iou s form s.
Myrdal, p. 223.
_58/ Hal 1, Black V ocational, Technical and In
d u s t r ia l Arts Education (American T ech n ica l
Society 1973), p. 19; Weaver, p. 41.
- 92 -
that slaves with s k i l l s had a greater market value
and co u ld produce a d d it io n a l incom e.— The
p o s t - C i v i l War p er iod saw the development o f
e x te n s iv e e f f o r t s to l im i t o r e l im in a te the
opportunity fo r black workers to use their s k i l ls
, • 56/or to acquire new ones.—
After the C iv i l War blacks were excluded by
law or p ra ctice from p ra c t ica l ly a l l apprentice
programs.-^- Moreover, b la ck s were a ss ign ed to
55/ Spero and Harris, pp. 5-6; Myrdal, pp. 887,
1100- 1101.
56/ There had been attempts prior to Che C iv il
War to lim it the opportunities o f blacks to work
as craftsmen. For example, the Georgia Legisla
ture passed a law in 1845 making i t a criminal
o ffense for a "white person . . . [to] contract or
bargain with any slave, mechanic or mason, or free
person o f co lo r , being a mechanic or mason . . . , "
quoted in Spero and H a rr is , p. 8. However,
these e f fo r ts were generally unsuccessful because
o f the p o l i t i c a l and economic power o f the slave
owners, i d . , pp. 7-9. Myrdal, p. 1101.
57/ The enactment o f the 31ack Codes regulated
the conditions o f freedmen's labor and subjected
them to Che control o f th e ir former masters or
other white men. Myrdal, p. 228. For example,
are the ones to which Negroes have access".—' The
trade schools which were exclus ively fo r white
students o ffered apprentice courses fo r b o i le r
makers, carpenters, miIlmen, e le c t r i c a l workers,
g l a z i e r s , iron w orkers , p a in te r s , plumbers,
s tea m fitters , sheet metal workers, machinists and
. . 64/o p e ra t in g e n g in e e r s .— In L ouis iana in 1961
th ere were tw enty -seven v o c a t io n a l ed u ca t ion
schools, twenty-three reserved exclus ive ly for
whites and fou r e x c lu s iv e ly f o r b l a c k s T h e
p a ttern remained in e f f e c t in to the 1970s.
Moreover, as un ions , e s p e c i a l l y in the
c r a ft s , increased th e ir control and influence in
63/
63/ State A dvisory Committee, United States
Commission on. C iv i l R ig h ts , 50 S tates Reoort
(1961), p. 209.
64/ Id.
65/ Id.
66/ The s t a t i s t i c s provided by HEW for "students
and facu lty in Louisiana's vocational schools . . .
show seven schools as overwhelmingly black and 25
s ch o o ls as overwhelm ingly w h ite . Many o f the
schools operated by State departments o f education
are obviously segregated." Adams v. Richardson,
351 F.Supp. 636, 639 (D.D.C. 1972).
- 94 -
438 (1954). The "usual p ra ctice in the South,
. . . has been to have segrega ted v o c a t io n a l
sch o o ls where Negroes are tra in ed on ly fo r
59/occu p a t ion s they have t r a d i t i o n a l l y h e l d . " —
"The Negro industria l high schools in the South
. . . had l i t t l e or no equipment, and the ir grad
uates were seldom prepared to earn a l iv in g in a
sk il led trade. It was the practice for these
v o c a t io n a l high s ch o o ls " t o prov ide t r a in in g
in those o ccu p a t ion s that Negroes cou ld get
employment in , in [th e ] community. "-^-^Th is
standard, which perpetuated ex ist ing patterns o f
employment discrim ination , was approved by HEW as
62 /late as 1961.— For example, as o f 1961 in the
New Orleans area there were fou r v o c a t io n a l
ed u ca tion high s c h o o ls . In the one s ch o o l
which admitted blacks to i t s training programs,
the apprentice courses available were for carpen
ters , cement masons, p la s t e r e r s and la t h e r s :
"The program is limited to these trades as they
59/ Marshall, p. 135.
60/ Weaver, p. 41.
61/ United States Commission on C iv il Rights,
Employment (1961), p . 97.
62/ Id.
- 97 -
carpenter, painter and trowel, trades, where black
workers had tra d it io n a l ly been established, they
were able to maintain, although on a diminishing
b asis , access to training and job s .-^ -3 u t black
workers never had a chance to en ter the newer
occupational categories , or those which increased
greatly during the in d u str ia liza t ion o f the South,
e . g . , plumber, e le c t r ic ia n , machinist. The cra ft
unions that contro lled or influenced employment in
these occupations severely re s tr ic te d or to ta l ly
excluded b la ck en try , see n n .67-70 , su p ra ; as
a resu lt , blacks were unable to obtain a share of
the in crea sed employment o p p o r t u n it ie s in the
twentieth century, see pp. 100-102, in fr a . The
persistence into the 1970s o f these discriminatory
p r a c t i c e s is confirm ed by the ex tra o rd in a ry
number o f ju d ic ia l findings o f T it le VII v i o ia -
72/tions by cra ft unions. —
71/ I d . , pp. 1101-1102; Northrup, pp. 26 -41 .
72/ " J u d i c i a l f in d in g s on d is c r im in a t io n in.
c r a f t s are so common as to make i t a proper
subject for ju d ic ia l n o t ic e . " G. Pet. 46a n.18
(Wisdom, J . , d i s s e n t in g ) . See United S tates
- 94 -
4-38 (1954). The "usual p ra ct ice in the South,
. . . ha3 been to have seg reg a ted v o c a t io n a l
s ch o o ls where Negroes are tra in ed on ly fo r
5 9/o ccu p a t ion s they have t r a d i t i o n a l l y h e l d . " —
"The Negro industria l high schools in the South
. . . had l i t t l e or no equipment, and their grad
uates were seldom prepared to earn a l iv in g in a
sk il led trade. I t was the practice for these
v o c a t io n a l high sch o o ls " t o prov ide t r a in in g
in those o ccu p a t ion s that Negroes cou ld get
employment in , in [th e ] community. "-^-^Th is
standard, which perpetuated ex ist in g patterns o f
employment discrim ination , was approved by HEW as
62/late as 1961.— For example, as o f 1961 in the
New Orleans area there were fou r v o c a t io n a l
ed u ca tion high s c h o o ls . In the one s ch o o l
which admitted blacks to its training programs,
the apprentice courses available were for carpen
ters , cement masons, p la s t e r e r s and la t h e r s :
"The program is limited to these trades as they
59/ Marshall, p. 135.
60/ Weaver, p. 41.
61/ United States Commission on C iv il Rights,
Employment (1961), p. 97.
62/ Id.
- 99
While in the la st f i f t e e n years there have been
changes in these tra d it ion a l a ttitudes , various
p r a c t i c e s have served to p erpetuate the p r i o r
. . 74/systems- o f segregation-— The ra c ia l a llo ca t ion
o f j o b s , and e s p e c i a l l y the l im i t a t i o n on the
opportunity o f black workers to move into cra ft
posit ions in industria l plants, have p ers is ted .— /
73/ Cont' d
"O utside c a p i t a l which promoted the S ou th 's
in d u str ia liza t ion adhered c lo s e ly to the c o lo r -
ca s te system o f the r e g io n . The o c c u p a t io n a l
pattern s which evo lved were in a ccord with
this basic p r in c ip le : clean, l ig h t , w ell-pa id jobs
for whites and heavy, d ir ty , lower paid jobs for
Negro." Weaver, p. 6; see pp. 7-8.
74/ "The influence o f industria l unions has been
mainly to perpetuate job segregation by formal
i z in g separata s e n i o r i t y l in e s and r e s i s t i n g
changes whidh would make i t possib le for Negroes
to be transferred and promoted on the basis o f
s e n i o r i t y . " M arshall, "The Negro in Southern
U nions , " in The Negro and the American Labor
Movement (ed. Jacobsen 1968), p. 143.
75/ See, e .g . , James v. Stockham Valves & F it
tings Co. , 559 F.2d- 310, 340r 45 (5th Cir. 1977),
c e r t , denied, 434 U.S. 1034 (1978); Pettway v.
- 96
the labor market during the period a fte r 1900,
the access o f black, workers to training programs
and sk i l le d , p o s i t io n s became even more l i m i t —
67/ed.----Many o f the A.F.L. unions excluded, blacks
by express con stitu tion a l provision or by r itu a l
68 / . . .requirements.— Other unions denied admission to
blacks or re s tr ic ted the ir access to jobs by a
, . „ . 69/ _s e r ie s o f unw ritten p r a c t i c e s . — I t is im
portant to note that a l l o f the cra fts "are not
equally bad."— / In the o lder cra fts such as the
67/ Myrdal, p. 1102.
68/ Karson and Radosh, "The American Federation
o f Labor and the Negro Worker, 1894 -1949 ,"
in The Negro and the American Labor Movement (ed.
Jacobsen , Anchor 1968), pp. 157-58. These
unions included several, l ike the Machinists, the
3oilermakers, and the Iron and Shipbuilders, which
operated, apprentice programs.
69/ I d . , p. 158; Marshall, "The Negro in Southern
U n ion s ," in The Negro and the American Labor
Movement (ed . Jacobsen , Anchor 1968), p. 145
("Unions in the newer occupations lik e the plumb
ing and e le c t r i c a l trades have been able to bar
Negroes from their unions and from better jobs in
the industry through their control o f apprentice
ship t ra in in g and t h e ir in f lu e n c e with some
licen sing b oa rd s ." ) . See Northrup, pp. 23-37.
70/ Myrdal, p. 1102.
101
oped which remains a serious problem: during cimes
o f econom ic slowdown, b lack workers lo se what
l i t t l e gains they may have made and t h e i r un
employment rate increases much fa ster than chat o f
white workers.— 'While black workers experienced
s ig n i f ica n t employment gains during Che war years ,
1942-1944, almost h a lf o f the black workers who
were employed in war industries ,, a much, greater
proportion than for white workers, were employed
in areas o f acute labor shortage. Accordingly,
b la ck workers were fa r more l i k e l y Chan white
workers Co be la id o f f a fter the war.-— 'Further
more, " [ i ] n the South, the occupational c o lo r -
caste system was so firmly entrenched that even in
the majority o f t ight labor markets [during the
War], there were but s l ig h t re laxations” in the
barriers to black employment.——̂
77/ See Weaver, pp. 8-15 f o r a d is c u s s io n
o f the e f fe c t s o f the Depression on black workers.
"Almost a h a lf o f Che -skilled Negro males in the
nation were displaced from their usual types o f
employment during the p er iod 1930 to 1936; a
third o f those outside their .usual occupations
were in unskilled work, and over 17 percent were
unemployed." Id . , p. 9.
78/ Weaver, pp. 86-87 and 78-93.
79/ Id . , p. 92.
102 -
From 1950 through 1965 the p os it ion o f black
workers continued to deter iorate re la t iv e to that
o f white workers. ‘"Declining "employment opportu
n it ie s in jobs tra d it io n a l ly open to them, to
gether with population sh i fts which increased the
number o f young Negro males, caused these groups
to ex p er ien ce d e c l in in g r e l a t i v e la b or fo r c e
p artic ipation rates, r is in g unemployment rates,
and d e c l in in g r e l a t i v e incomes during these
80 /years ."— In 1965, a fter reviewing these figures
and the p ro ject ion that the non-white labor force
was expected to r ise at a substantia lly greater
rate than the white labor force , then Professor
Marshall emphasized "the urgency o f the need to
80/ M arshall and B rig g s , p .3._ For example,
" [ a ] f t e r having been c o n s i s t e n t ly le s s than
double the white ra tes b e fo r e 1957, non-w hite
unemployment rates were cons istently more than
double those o f w hites a f t e r 1957. In 1943,
teen-age male unemployment rates were 7.6 percent
f o r non-w hites and 8 .3 percent f o r w h ite s ; in
1965, these r e la t i v e p o s i t i o n s were rev ersed
and the teen -age male unemployment ra te s were
22 .6 percent fo r non-w hites and 11.8 percent
for w h ites ." _Id_., p.3 n.2 (emphasis in o r ig in a l ) .
- 103 -
get more Negroes in to the s k i l l e d t r a d e s . ”—
Unfortunately, while the enactment and enforcement
o f T it le VII, the enforcement o f the Executive
Order, and the adoption o f voluntary affirm ative
82/a c t io n have had some p o s i t i v e e f f e c t , — the
contin ued d is c r im in a to r y p r a c t i c e s and the
operation o f many businesses and unions according
to tra d it ion a l patterns have prevented the nec
essary s ig n if ica n t increase o f black workers in
83/the s k i l l e d t r a d e s .— The urgency rem ains;
responsible affirm ative action by companies l ike
K aiser and unions l ik e the S tee lw orkers must
31/
81/ I d . , p. 4.
82/ See generally, United States Commission on
C iv il Rights, The Challenge Ahead (1976).
83/ See p. 99 n n . 74-75, su p ra . See a lso The
Challenge Ahead, supra, 26-31. "In summary, the
e f fe c t o f intentional and d ire c t employment d is
crimination in the build ing trades continue [s i c ]
to be s e v e re . The p r o p o r t io n o f unions that
neither discriminate d ire c t ly nor in ten tion a lly or
that do not con tin u e to use w id e ly p r a c t ic e d
in s t itu t ion a l mechanisms that adversely a f fe c t the
employment opportunity o f m inorities and women is
unfortunately quite sm all.” Id . at 94 (footnoce
om itted ).
102 -
From 1950 through 1965 the p os it ion o f black,
workers continued to deter iorate re la t iv e to that,
o f white workers. '"'Declining "employment opportu
n it ie s in jobs tra d it io n a l ly open to them, to
gether with population sh i f ts which increased the
number o f young Negro males, caused these groups
to ex p er ien ce d e c l in in g r e l a t i v e la b or fo r c e
p artic ipation rates, r is in g unemployment rates,
and d e c l in in g r e l a t i v e ' incomes during these
80 /years ."— In 1965, a fter reviewing these figures
and the p ro ject ion that the non-white labor force
was expected to r ise at a substantia lly greater
rate than the white labor force , then Professor
Marshall emphasized "the urgency o f the need to
80/ M arshall and B r ig g s , p .3 . . For example,
" [ a ] f t e r having been c o n s i s t e n t ly le s s chan
double Che white races b e fo r e 1957, non-w hite
unemployment rates were consistently more than
double Chose o f whites a f t e r 1957. In 1948,
teen-age male unemployment rates were 7.6 percent
f o r non-w hites and 8 .3 percent fo r w h ite s ; in
1965, these r e la t i v e p o s i t io n s were rev ersed
and the teen -a ge male unemployment ra ces were
22 .6 percent fo r non-w hites and 11.8 percent
for w h ites ." _Id. , p.3 a . 2 (emphasis in o r ig in a l ) .
- 105
company's recruitment area"; and "the figure o f 50
percent would be used as the minority population
r a t i o in the area from which K aiser draws i t s
w o r k fo r c e . . . . " — in compliance review sessions,
OFCC person n e l r e p e a te d ly c r i t i c i z e d K a is e r 's
c r a f t s e l e c t i o n p r a c t i c e s and suggested that
8 6 /alternatives be adopted.—
Kaiser acted cons istently with the provisions
o f the Executive Order and Revised Order and with
the recommendations o f OFCC p erson n e l when i t
adopted race-conscious provisions for i t s affirma
tive action plan. Cf. United Jewish Organizations
v. Carey, 430 U.S. 144 (1977). This independent
j u s t i f i c a t i o n fo r the plan is on ly b r i e f l y
discussed because the United States has intervened
in th is lawsuit in part to support enforcement
85/ . I d .
86/ The D irector o f Equal Employment A ffa irs fo r
Kaiser t e s t i f i e d that, . . I don 't think I have
sat through a compliance review where i t wasn't
apparent that there was few, i f any, m inorities in
the c r a f t o c cu p a t io n s , and there was always,
c e r t a in ly the s u g g e s t io n , on the part o f the
compliance review o f f i c e r s , that we devise and
come up with methods and systems to change that
particu lar th ing ." A. 93.
- 104 -
be firmly supported i f the longstanding practices
o f d e liberate employment d iscrim ination and th e ir
e f fe c t s are to be f in a l ly terminated.
4. Compliance with the Executive Order. As a
s u b s ta n t ia l government c o n t r a c t o r ) K aiser was
and is obligated to comply with the requirements
o f Executive Order No. 11,246. These requirements
include the adoption o f goals and timetables for
minority partic ipation where there is an "under—
u t i l iz a t io n " o f m inorities in the con tra ctor 's
workforce. 41 C.F’.R. §60—2 (Revised Order No.4).
OFCC officials*.warned. Kaiser in 1971 that its plan
fo r compliance with the Executive Order contained
" d e f i c i e n c i e s " and that K aiser should prov ide
s p e c i f i c plans fo r c o r r e c t in g these d e f i c i e n -
c ie s .— 'One OFCC recommendation to Kaiser
which was very similar to the plan adopted was
that the Company e s t a b l i s h a c r a f t t ra in in g
program; se lection for the program "should include
at least the minority ra t io that ex ists in the
84/ Letter dated January 25, 1971, to Mr. Melan-
can, plant manager, from Guy W. McCarty, Chief
Contract Compliance O ff ice r , see pp. 77-78 a . 41,
supra.
- 107
B. The Plan Was Properly Designed
1. The Plan
In 1974 K aiser and o th er major aluminum
companies entered into an industry-wide "master"
agreement with the Steelworkers. The agreement
provided, in ter a l i a , that (a) a jo in t company-
union implementation committee would review a l l
ex isting cra ft c la s s i f i c a t io n s "with respect to
t h e i r r e p r e s e n ta t io n o f m in or ity and female
em ployees" ; (b ) in f i l l i n g c r a f t and ass igned
maintenance jobs including training or apprentice
p os it ion s , "not less than one minority or female
employee w i l l enter for every non-minority em
ployee entering, including, i f necessary, o f f the
street h ires , u n til the goal is reached unless at
a p articu la r time there are in s u f f ic ie n t available
37/ Cont' d
providing remedies for discrim inatory practices
led to the adoption o f the present race-conscious
enforcem ent p r o v i s i o n s . See, e . g . , A ssoc ia ted
General C on tra ctors o f Mass., Inc, v. A ltshu ler ,
490 F.2d 9, 12-14 (1st Cir. 1973), c e r t . denied,
416 U.S. 957 (1974); Contractors Ass'n o f Eastern
Fa. v . S ecre ta ry o f L abor , su p ra , 442 F . 2d
at 170-71. See Jones, The 3ugaboo o f Employment
Quotas, 1970 Wis. L. Rev. 341.
106
e f fo r ts under the Executive Order. However, i t i3
important to emphasize that the race-conscious
procedures o f Revised Order 4 f o r e n fo r c in g
the Executive Order were only added a fte r twenty-
seven years o f enforcement experience demonstrated
87/the ine ffect iveness o f a lternative approaches.—
87/ The Committee on Government Contract Compli
ance established by President Truman reported in
1953 that under- the i n i t i a l Executive Orders, the
n o n -d is c r im in a t io n c la u ses had become "a lm ost
f o r g o t t e n , dead and b u ried under thousands o f
words . . . . " Sovern, Legal Restraints on Racial
D iscr im in a t ion in Employment,. Appendix G at
254 (1966) (p artia l rep r in t ) . Changes made in
the Executive Order program during the 1950s did
not improve compliance because o f " [t]he in d i f
fe ren ce o f employers to e s ta b lish in g a posit ive
p o licy o f non-discrimination . . . . " Committee on
Government Contracts, Pattern for Progress: Final
Report to P resident E isenhow er, p. 14 (1960)
(emphasis in o r i g i n a l ) . As a r e s u l t o f th is
finding, Executive Order No. 10,925, 3 C.F.R. 443
(1959-63 Comp.), in c luded a p r o v is io n that
" [ t ]h e Contractor w il l take affirm ative action to
ensure that a p p l ica n ts are employed, and that
employees are treated during employment, without
regard to their race, creed, co lo r or national
o r ig in ." The refinement o f the concept o f a f f i r
mative a c t io n in to a more e f f e c t i v e c o o l f o r
in su r in g equal employment op p ortu n ity and fo r
- 109
This lawsuit resulted from the application
o f this plan to the Grammercy plant during 1974.
Thirteen trainees for the apprentice positions
were se lected under the affirm ative action plan —
90/seven black, workers and s ix white workers.— The
89/ Cont’ d
the se le c t ion o f one minority for each non-minor
i t y f o r c r a f t j o b s . G. Pet. 62a (op . d i s t r i c t
cou rt) . There is no explanation, in the record why
women were not in c lu d e d . A- K aiser o f f i c i a l
t e s t i f i e d that women, l ike m in orit ies , had "ce r
ta in ly " been denied training opportun ities . A. 90
(Bouble).
90/ In A p r i l 1974, there were nine t r a in in g
openings which were posted for bid, in May one
opening, and in October three openings. The chart
below summarizes the training programs available
and the race o f the trainees se lec ted . A. 166 (K.
Ex. 2 ) ; G. Pec 63a (op. d i s t r i c t co u r t ) .
Number o f Number o f T o ta l
Blacks Whites
April
I n s t r . Repairman 1 1 2
E l e c t r i c ia n 1 1 2
General Reoairman 3 2 5
106 -
e f fo r ts under the Executive Order. However, i t is
important to emphasize Chat the race-conscious
procedures o f Revised Order 4 f o r e n fo r c in g
the Executive Order were only added a fte r twenty-
seven years o f enforcement experience demonstrated
37/the ine ffectiveness o f a lternative aoproaches.—
87/ The Committee on Government Contract Compli
ance established by President Truman reported in
1953 that under- the i n i t i a l Executive Orders, the
n o n -d is c r im in a t io n c la u s e s had become "a lm ost
f o r g o t t e n , dead and b uried under thousands o f
words Sovem, Legal Restraints on Racial
D is cr im in a t ion in Employment,. Appendix G at
254 (1966) (p artia l reprint).. Changes made in
the Executive Order program during the 1950s did
not improve compliance because o f " [t]he in d i f
fe ren ce o f employers to e s ta b lish in g a posit ive
p o licy o f non-discrimination . . . . " Committee on
Government Contracts, Pattern for Progress: Final
Report to P resident E isenhow er, p. 14 (1960)
(emphasis in o r i g i n a l ) . As a r e s u l t o f th is
finding, Executive Order No. 10,925, 3 C.F.R. 443
(1959-63 Comp.), in c luded a p r o v is io n that
" [ t ]h e Contractor w il l take affirm ative action to
ensure that a p p l ica n ts are employed, and that
employees are treated during employment, without
regard to their race, creed, co lo r or national
o r ig in ." The refinement o f the concept o f a f f i r
mative a c t io n in to a more e f f e c t i v e t o o l f o r
in su r in g equal employment o p p ortu n ity and f o r
- I l l -
I c is important to note that during 1974,
Kaiser h i r e d twenty-two ex per ien ced craf-tsmen
in addition to . i t s se lec t ion o f thirteen appren
t i c e s . A. 65. Only one o f these twenty-two
cra fts men was black. I d . There was no explana
tion as to why Kaiser se lected twenty-seven whice
workers as craftsmen or apprentices and only eight
black workers as craftsmen or apprentices despite
the fact that i t had a contractual ob l igation to
f i l l "apprentice and c ra f t jobs . . . at a minimum
[with] not less than one minority employee . . . for
every non-minority employee ___ / G. Pet. 62a
(o p in io n o f the d i s t r i c t c o u r t ) . During 1974
2 1 / Since the agreement went into e f f e c t on
February 1 . . 1 9 7 4 , G. .Pec . 62a, i t is h ig h ly
u n l ik e ly that a l l twenty-two o f the craftsmen
h ired during 1974 were s e l e c t e d p r i o r to the
i n s t i t u t i o n o f the p lan. The on ly p o s s ib l e
explanation for the d isparity , apart from Kaiser 's
having v io lated the agreement, was that "q ua l i
f ied minority candidates were unavailable, and
that Kaiser had an immediate requirement f o r
addit ional craftsmen. However, i f Kaiser was using
the "pr ior industrial experience" requirement to
determine which craftsmen were qual i f ied and i f
Kaiser was using the 3ame s e l e c t i o n p r a c t i c e s
in 1974 that i t had used prior to 1974, then there
is reason to bel ieve that Kaiser was v io la t ing not
only the agreement but also T i t le VII, see op.
65-78, suora.
- 108 -
quali f ied minority and/or female candidates” ; ( c )
a m inor i ty g o a l was to be e s t a b l i s h e d at each
plant according to the a v a i la b i l i t y o f minorit ies
in the relevant workforce; the goal for women was
g o /
set at 52. A. 145 (J o in t Ex. 2 ) . — For the
Grammercy plant a minority goal o f thirty-nine
percent was established for each cra f t family. G.
8 9 /Pet . 63a (o p in io n o f the d i s t r i c t c o u r t ) . —-
88/ These goals represented "the par t ies ' best
estimates o f the i n i t i a l goals to be achieved,
recognizing that these goals may change as future
court/Government d e c i s i o n s are r e n d e r e d . " I d .
I t should be noted chat the goa ls were
established for each o f s ix " c r a f t fa m i l ie s . " A.
145 (Joint Ex. 2). Thus, i f the goal for minor
i ty representatives was attained for the "car
penter cra f t family ," the entry ra t io for chose
cra ft jobs would cease, but the entry rat io for
Che " e l e c t r i c i a n c r a f t fa m i ly " would cont inue
unti l the goal for minority representation in that
cra ft family had been attained. Id . This was a
sensible arrangement; while there had been d i s
crimination against minorit ies with respect to
entry into a l l c r a f t s , the discrimination was more,
severe in some cra f t s , e . g . , e l e c t r i c ia n , than
in others, e . g . , carpenters, see po. 96-97, supra.
89/ In the application o f Che master agreement to
the Grammercy plant there was provision only for
- 113 -
a l l the c ircum stances which would r e q u i r e the
implementation o f a race-conscious plan nor a l l
the forms that a plan may take. The nature o f the
plan and i ts ju s t i f i c a t i o n w i l l vary according to
the c i r cu m stan ces . But i t i s p o s s i b l e , as
the EEOC has done in its Guidelines on Affirmative
A c t io n , to e s t a b l i s h some guides f o r unions
and .employers to f o l l o w in d e s ig n in g prooer
93/plans.— The standard fo r determining whether a
92J Cont’ d
v ic t im s o f p r i o r p o l i c i e s or procedures which
produced the adverse impact or disparate t rea t
ment or which perpetuated past d iscr imination ."
EEOC Guidelines on Affirmative Action, 29 C.F.R.
§1608.4 ( c ) .
93/ " In c o n s id e r in g the reasonableness o f a
particular aff irmative action plan or program, the
Commission w i l l g e n e r a l ly apply the f o l l o w in g
standards : ( i ) The plan should be t a i l o r e d to
solve the problems which were id en t i f ied in the
s e l f a n a ly s i s , see 5 1 6 0 8 .4 (a ) , supra, and to
ensure that employment systems operate f a i r l y in
the future, while avoiding unnecessary r e s t r i c
t ion s on o p p o r t u n i t i e s f o r the w ork force as a
whole. The race, sex, and national or ig in con
scious provisions o f the plan or program should be
maintained only so long as is necessary to achieve
these ob jec t iv es , ( i i ) Goals and timetables should
be reasonably related -to such considerations as
- 114 -
particular kind o f action, i s appropriate, l ike the
standard f o r determining whether there is a
reasonable basis for Che in s t i tu t ion o f affirma
t i v e a c t i o n , must be f l e x i b l e and designed to
encourage voluntary implementation o f measures
which w i l l e f f e c t i v e l y remedy d i s c r im in a t o r y
pract ices . The plan adopted by Kaiser and the
Steelworkers was properly designed and implemented
for several compelling reasons.
a. The remedy established by the plan —
including the use o f a ra t io to insure a proper
timetable for the remedy and the establishment o f
a g o a l to insure a proper durat ion f o r the
plan — has' been repeatedly approved by courts
94/in l i t ig a ted cases— and in negotiated s e t t l e -
93/ Cont *d
the e f fe c t s o f past discrimination, the need for
prompt elimination o f adverse impact or disparate
treatment, the a v a i la b i l i ty o f b a s ica l ly qua l i f ied
or q u a l i f i a b l e a p p l i c a n t s , and the number o f
employment opportunities expected to be a v a i l
able. ' ' 29 C.F.a. 51608.4 (c) (2) .
94/ See cases c ited at pp. 18—19 nn.5—7, supra.
See a lso 3oston Chaocer, N.A .A.C.P, Inc , v .
3eecher., 504 F . 2d 1017 (1 s t G ir . 1974), c e r t .
- 115
meats.— Furthermore, th is form o f r a c e - c o n
s c i o u s a f f i r m a t i v e a c t i o n has been adopted or
94/ Cont' d
denied, 421 U.S. 910 (1975); Associated General
C on tra c to rs o f Mass., In c , v . A l t s h u l e r , 361
F.Supp. 1293 (D. Mass), a f f *d, 490 F.2d 9 (1st
Cir. 1973), c e r t , denied, 416 U.S. 957 ( 1974);
B r idgeport Guardians, Inc , v . B r idgeport Civ i l
Service Commission, 482 F.2d 1333 (2nd Cir. 1973),
c e r t , denied, 421 U.S. 9 1 (1975); Rios v. Enter
prise Association Steamfitters Local 638, 501 F.2d
622 (2d C ir . 1974); United States v . Wood Lathers
Local 46, 471 F.2d 408 (2d C i r . ) , c e r t , denied,
412 U.S. 939 (1973); Erie Human Relations Commis-
s ion v . T u l l i o , 493 F . 2d 371 (3rd C ir . 1974);
N.A.A.C.P. v . A l len , 493 F.2d 614 (5th Cir. 1974);
Marrow v. C r i s l e r , 491 F.2d 1053 (5th C ir . ) (en
banc), c e r t . denied, 419 U.S. 895 (1974); EEOC v .
Detroit Edison C o . , 515 F.2d 301 (6th Cir. 1975),
vac 'd and rem'd on other grounds, 431 U.S'. 951
(1 9 7 7 ) ; United S tates v . Masonry C ontractors
Ass'n, 497 F.2d 371 (6th Cir. 1974); United States
v . Local 212, I3EW, 472 F.2d 634 (6th Cir. 1973);
Sims v . Local 65, Sheet Metal Workers, 489 F. 2d
1023 (6th Cir. 1973); United States v . City o f
C h ica g o , 549 F.2d 415 (7 th C ir . 19 77) , c e r t .
denied, 434 U.S. 875 (1978); Crockett v . Green,
534 F.2d 715 (7th Cir. 1976); Southern I l l i n o i s
Builders Ass'n v . O g i lv ie , 471 F. 2d 680 (7th Cir.
1972); United States v . N.L. Industries, Inc . , 479
F. 2d 354 (8th Cir. 1973) .
95/ See, e . g . , EEOC v ■ A.T.& T. Co. , 556 F.2d 167
(3rd Cir. 1977), cert , denied, 57 L.Ed.2d 1161
- 114 -
particular kind o f action, is appropriate, l ike Che
standard f o r determining whether there i s a
reasonable basis for the in s t i tu t ion o f affirma
t i v e a c t i o n , must be f l e x i b l e and designed to
encourage voluntary implementation of measures
which w i l l e f f e c t i v e l y remedy d i s c r im in a t o r y
pract ices . The plan adopted by Kaiser and the
Steelworkers was properly designed and implemented
for several compelling reasons.
a. The remedy established by the plan —
including the use o f a ra t io to insure a proper
timetable for the remedy and the establishment of
a g o a l to insure a proper durat ion f o r the
plan — has been repeatedly approved by courts
94/in l i t ig a ted cases— and in negotiated s e t t l e -
93/ Cont' d
the e f f e c t s o f past discrimination, the need for
prompt elimination o f adverse impact or disparate
treatment, the a v a i la b i l i ty o f b as ica l ly qua l i f ied
or q u a l i f i a b l e a p p l i c a n t s , and the number o f
emnloyment opportunities expected to be a v a i l
able. " 29 C.F.R. 51608.4 (c) (2) .
94/ See cases c i ted at pp. 18-19 nn.5-7, supra.
See a lso 3oston Chancer, N.A .A.C.P , Inc , v .
Beecher, 504 F.2d 1017 (1 s t Gir . 1974), c e r t .
- 117
b. The aff irmative action plan was appro
pr iate ly designed to remedy the e f f e c t s o f pr ior
discriminatory pract ices and to insure that the
Company and the Steelworkers did not engage
in c on t in u in g d i s c r im in a t o r y p r a c t i c e s . Past
c ra f t se le c t ion pract ices o f Kaiser had a severe
adverse r a c i a l im pact ; d e s p i t e the f a c t that
b lacks c o n s t i t u t e d 39Z o f the w ork force and a
substantial portion o f the sk i l led workforce, they
were p ra c t i ca l ly excluded from entry inco cra f t
pos it ions , see pp. 65-78, supra. I f no aff irmative
action plan had been inst ituted , then blacks would
have continued to be excluded from the c ra f t jobs.
Moreover, the plan was an interim measure designed
98/ Cont' d
4a. In fac t , there was no evidence submitted in
that case concerning the discriminatory pract ices
in the s tee l industry nor was there an admission
by the s tee l companies or the Steelworkers that
they had engaged in unlawful pract ices , United
States v . Allegheny-Ludlum Industries, Inc . , 63
F.R.D. 1 (N.D. A la . 1973). The e f f e c t o f the
lower cou r t ' s standard requiring such evidence or
such an admission would be noc only to discourage
vo lu n ta ry a f f i r m a t i v e a c t i o n but a lso to d i s
courage n eg o t ia ted se tt lem ents in c o n te s te d
l i t i g a t i o n .
- 116 -
approved, by the f e d e r a l a genc ies charg’ed with
96 /enforcing the Executive Order,— - T i t l e VII and
. 97/
other fa i r employment prov is ions .— In fac t , in
adopting the ir plan Kaiser and the unions properly
r e l i e d on the general requirements o f the Execii-
t ive Order and related ju d i c ia l decis ions and on
the s p e c i f i c requirements which were inst ituted in
the c l o s e l y analogous s i t u a t i o n in v o lv in g the
nationwide settlement in the s te e l industry, see
PP* 56-58, supra. The adoption o f the plan was
c o n s i s t e n t with the j u d i c i a l d e c i s i o n s , the
government r e g u la t i o n s and the s t e e l industry
, 98/consent decree.—
95/ Cant1d
( 19 78) ; United States v-. Allegheny— Ludlum Indus
t r i e s , Inc . , 517 F. 2d 826 (5 th Cir. 1975) , cert .
denied, 425 U.S. -<44 (1976) .
96/ See Section I, supra and pp. 104-06, supra.
97/ See Section I, supra.
98/ The majority below inaccurately distinguished
the approval o f the consent decree on the ground
that there was a showing o f "massive discrimina
tory pract ices" in the s tee l industry. G. Pet.
- 119 -
ing. programs because he did not have. Che requis ite
99/experience. A. 38, 43 (Weber).— Weber admit
ted that under the new program he, and other white
workers, had expanded t r a in in g and employment
opportunit ies. A. 51. I ron ica l ly , were i t not
f o r the a f f i r m a t i v e a c t i o n plan, Weber would
never have had the opportunity to become a c r a f t s
man at Kaiser ; under the program he w i l l have chat
opportunity.
d. The a f f i r m a t i v e a c t i o n plan was the
product o f c o l l e c t i v e barga in ing between the
Steelworkers and Kaiser. Co l lect ive bargaining
is the cornerstone of f e d e r a l ’ labor pol icy , United
S t e e lw o r k e r s o f America v . American H fg . Co. ,
363 U.S. 564 (1960), and central to chat po l icy is
the pr inc ip le o f majority rule. NLRB v. Jones &
Laugnlin Steel Corn. , 301 U.S. 1 (1937). However,
"Congress did not . . . authorize a tyranny o f the
99/ "There were pr ior training programs, but I
was not allowed to part ic ipate because I d id n 't
have the training required by the company, at that
t im e . " A. 38. The s i n g l e c la s s member who
t e s t i f i e d , Fortune Moran, had submitted a bid for
one o f che prior training programs ; but he had
been r e j e c t e d because he lacked the r e q u i s i t e
prior experience. A. 56.
- 118 -
“ o terminate a f te r redressing prior discriminatory
p r a c t i c e s . F i n a l l y , the development o f an
expanded training program in conjunction with the
plan was a responsible s o c ia l act ion designed to
provide some remedy for the discriminatory prac
t ices by business, unions, and others which had
substantia lly limited the employment- opportunities
of blacks in the c ra f t trades.
c . The a f f i r m a t iv e a c t i o n plan did not
unnecessarily r e s t r i c t the' employment opportuni
t i e s , nor frustrate the ex ist ing job expectations,
o f white workers. In f a c t , the plan a c t u a l l y
increased these opportunit ies. G. Pet. 41a-42a
(Wisdom, J . , d i s s e n t i n g ) . A. c r a f t t r a in in g
program which was open to a l l incumbent workers,
white as well as black, regardless o f their prior
exper ience in. the c r a f t s , was i n s t i t u t e d as a
basic part of the aff irmative action plan. In.the
small training programs which Kaiser had operated
between 1964 and 1971, employees had been e l i g i b l e
only i f they had one to three years o f prior c ra f t
experience, see p. 79, supra. Weber had never
s u b m i t t e d a j o b b i d f o r o n e o f t h e s e p r i o r t r a i n -
- 121
training program which would be open to employees
who had no prior experience. A.. 85 (English). I f
Kaiser had simply selected c ra f t trainees from
the area workforce which was 39% black, i t could
have achieved in e f f e c t , with some affirmative
recruit ing , i ts plan to en l i s t one minority for
each non-minority without any s p e c i f i c numerical
provisions in i t s aff irmative act ion plan. But
the s e l e c t i o n o f new h ir e s f o r the t r a in in g
program ran counter to the Union's longstanding
i n t e r e s t in expanding employment and t r a in in g
opportunities fo r incumbent workers.
The compromise which was agreed upon — the
aff irmative action plan — allowed both parties to
atta in the goals' which they had brought to the
barga in ing t a b l e . The Company e s t a b l i s h e d a
r e a l i s t i c plan for increasing i t s force of black
craftsmen and the Union expanded the job opportu -
n i t ie s for a l l the workers at the plant. This
creat ive and cooperative resolution o f a grave
so c ia l as well as industrial problem furthered
both the n a t io n a l p o l i c y fa v or in g c o l l e c t i v e
b arga in ing and the n a t io n a l p o l i c y fa v or in g
the voluntary correct ion o f discriminatory employ
ment pract ices . Such solutions should be strongly
supported.
- 118 -
co Germinate a f te r redressing pr ior discriminatory
p r a c t i c e s . F i n a l l y , the development o f an
expanded training program in conjunction with "the
plan was a responsible so c ia l act ion designed to
provide some remedy for the discriminatory prac
t ices by business, unions, and others which had
substantia lly limited the employment opportunities
o f blacks in the c ra f t trades.
c . The a f f i r m a t iv e a c t i o n plan did not
unnecessarily r e s t r i c t the’ employment opportuni
t i e s , nor frustrate the ex ist ing job expectations,
o f white workers. In f a c t , Che plan a c t u a l l y
increased these opportunities. G. Pet. 41a-42a
(Wisdom, J. , d i s s e n t i n g ) . A c r a f t t r a in in g
program which was open to a l l incumbent workers,
white as well as black, regardless o f their prior
exper ience in the c r a f t s , was i n s t i t u t e d as a
basic part o f the aff irmative action plan. In.the
small training programs which Kaiser had operated
between 1964 and 1971, employees had been e l i g i b l e
only i f they had one to three years of prior cra ft
experience, see p. 79, supra. Weber had never
s u b m i t t e d a j o b b i d f o r o n e o f t h e s e p r i o r t r a i n -