Correspondence to and from co-counsel; from Blumenthal to Judge Hammer

    Nos. 78-432, 78-435, 78-436

IN THE

Supreme Court of the United States
OCTOBER TERM, 1978

UNITED STEELWORKERS OF AMERICA, 
AFL-CIO-CLC, PETITIONER

BRIAN F. WEBER, KAISER ALUMINUM & CHEMICAL 
CORPORATION, AND UNITED STATES OF AMERICA, 

RESPONDENTS

KAISER ALUMINUM & CHEMICAL 
CORPORATION, PETITIONER,

BRIAN F. WEBER, RESPONDENT

UNITED STATES OF AMERICA AND EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION, PETITIONERS

BRIAN F. WEBER, ET AL.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

Michael R. Fontham
STONE, PIGMAN, WALTHER, 
WITTMANN & HUTCHINSON 

1000 Whitney Bank Building 
New Orleans, Louisiana 70130 
Telephone: (504) 581-3200 
Attorneys for Respondents

SCOFIELDS’ QUALITY PRINTERS, P. O. BOX 53096, N O., LA. 70153 - 504/822-1611



INDEX

Index ................................................................................... i

Table of Authorities ..................................................... iv

Question Presented.............................   2

Statement of the Case .......................   2

1 . Application of the Agreement
between Kaiser and U SW A ..........................  3

2 . Desirability of the craft positions ................. 6

3. Impact on the white workers ......................  9

4. Reasons for the adoption of the racial
quota ...................................................  12

5. Availability of minority craftsmen . . . . .  16

6 . Absence of prior discrimination...................18

7. Procedural background.............     22

8 . Published posture of the Government........ 25

Argument ...................................................................... 29

Summary of Argument .........................   29

I. THE RACIAL QUOTA IMPOSED BY 
KAISER AND USWA IS ILLEGAL 
UNDER TITLE VII BECAUSE IT 
DISCRIMINATES AGAINST NON- 
MINORITY EMPLOYEES........................  33

A. Race Discrimination Against Any 
Employee Is Prohibited Under Ti­
tle VII, Whether or Not the

Page



11

Employee Is a Member of a 
G o v e r n m e n t - R e c o g n i z e d  
Minority Group ....................................34

B. The Analogous Constitutional 
Decisions of the Court Establish 
That the 50 Per Cent Racial 
Quota Would Not Be Upheld if It 
Were Imposed By the Govern­
ment ........................................................46

II. THE PURPORTED JUSTIFICA­
TIONS OFFERED BY KAISER,
USWA AND THE GOVERNMENT 
FOR THE 50 PERCENT QUOTA 
ARE INSUFFICIENT TO VALI­
DATE THE POLICY OF OPEN DIS­
CRIMINATION AGAINST WHITE 
WORKERS ...................................................53

A. The 50 Per Cent Quota Was Not a 
Remedial Measure and Could Not 
Be Upheld in Any Event Because 
It Was Not Restricted to In­

INDEX (Continued)

Page

dividual Victims of Past Dis­
crimination ............................................54

1. The reasons for the racial 
quota are fully established in 
the record....................................... 56



I l l

2 . Persuasive evidence of past 
discrimination by Kaiser 
could not have been present­
ed at the trial because it does
not exist ...................................... .. 58

3. The 50 per cent quota is not
legal as a remedy because 
none of the persons pre­
ferred under the quota were 
v i c t i ms  of  pas t  di s­
crimination by Kaiser .....................70

B. The Legislative History of Title 
VII Does Not Support the In­
ference of USWA that Racial 
Preferences for Minorities Are 
Allowed, Though Not Required,
Under the Statute ...................................76

C. The Discrimination Against 
White Workers Is Not Validated 
By Executive Order 11276 or the 
Affirmative Action Guidelines of
the EEOC ...............................   79

D. A Policy Permitting the Advance­
ment of Minority Workers at the 
Expense of Whites Could Have 
Adverse and Unmanageable Con­

INDEX (Continued)

Page

sequences .......................................... 83

Conclusion ..................................................................... 89



IV

Cases:

City of Los Angeles, Department of Water & Power v.
Manhart, 435 U.S. 702, 98 S.Ct, 1370 (1978) . . .  37

Commonwealth of Pennsylvania v. O'Neil, 5 EPD f 
7974 (3d Cir., 1972), affirmed in part and re­
versed in part on rehearing en banc, 473  F.2d 
1029 (3d Cir., 1973) ..............................................  82

Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 311 F.Supp. 1002  (E.D. Pa.,
1970) .......................................................................... 64

Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 442 F.2d 159 (3d Cir., 1975),
cert, denied, 404 U.S. 854 (1971) ........................ 80,81

Franks v. Bowman Construction Corp., 424 U.S. 747 ,
96 S.Ct. 1251 (1976) ....................... .....................73

Furnco Construction Corp. v. Waters, ____ U.S.
------, 98 S.Ct. 2943 (1978) ....................... .. 37

General Electric Co. v. Gilbert, 429 U.S. 125, 97 
S.Ct. 401 (1976) .............................   47,81,82

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.
849 (1971) ...........     36,41,42,77,82

Hazelwood School District v. United States, 433  U.S.
299, 97 S.Ct. 2736 (1977) ....................................  70

International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 97 S.Ct. 1843 (1977) . . 44,72,

73,75

TABLE OF AUTHORITIES

rage



V

Jersey Central Power & Light Co. v. Local 32 7 ,1BEW,
508 F.2d 687 (3d Cir., 1975) ................................  41

Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734
(1974) .......................   49,52

Korematsu v. United States, 323 U.S. 214, 65 S.Ct.
193 (1944) ..........................     48

Local 189, United Papermakers and Paperworkers, 
AFL-C10, CLC v. United States, 416 F.2d 980 
(5th Cir., 1969) . ................................................... 38,42

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817
(1967) .............    48

McDonald v. Santa Fe Trail Transportation Co., 427
U.S. 273, 96 S.Ct. 2574 (1976) ................ .. 35,38,

39,77
Regents of the University of California v. Bakke, _ _

U.S. ___ , 98 S.Ct. 2733 (1978) ..................... 28,46,
47,48,49,50,51,73,84

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322
(1968) ...................    49

Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct.
161 (1944) ...............................     81

Southern Illinois Builders Association v. Ogilvie, 471
F.2d 680 (7th Cir., 1972) ...................   80,81

United Jewish Organizations v. Carey, 430 U.S. 144,
97 S.Ct. 996 (1977) .......................   85,86

Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309 (7th Cir., 1974) ___41

TABLE OF AUTHORITIES (Continued)

Page



V I

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

TABLE OF AUTHORITIES (Continued)

Page

579, 72 S.Ct. 863 (1952) ......................................  79

Constitutional Provisions,
Statutes and Regulations:

U. S. Const. Amend V ................................................ 46

U. S. Const. Amend XIV ........................   46,47

Civil Rights Act of 1964:

Title VI, 42 U.S.C. §2000d et seq. (1976) .46

Title VII, 42 U.S.C. §2000e et seq. (1976) .34

Section 703(a), 42 U.S.C. §2000e-2 (a)
(1976) .................................................................34,82

Section 703(a)(1), 42 U.S.C. §2000e-2 (a)(l)
(1976) ................................................................ 76,77

Section 703(d), 42 U.S.C. §2000e-2 (d)
(1976) ...................................................  34,75,77,82

Section 703(h), 42 U.S.C. §2000e-2 (h)
(1976) .................................................................... 48

Section 703(j), 42 U.S.C. §2000e-2 (j) (1976) . . 39,78

Section 713(b), 42 U.S.C. §2000e-12 (b)
(1976) ...................................................................  26

Section 713(b)(1), 42 U.S.C. §20G0e-
12(b)(1) (1976) .................................................... 26

42 U.S.C. §1981 (1976) ...................................  2,23,46

29 C.F.R. Part 1608 (1979) ........................................ 25



29 C.F.R. §1608,1 (1979) ........................................... 25

29 C.F.R. §1608.2 (1979) ........................................... 25

29 C.F.R. §1608.3 (1979) ........................................... 26

29 C.F.R. §1608.4 (1979) ....................   84

29 C.F.R. §1608.4(a) (1979) ........................................27

29 C.F.R. §1608.4(b) (1979) ...............................  26,59

29 C.F.R. §1608.4(c) (1979)........................................28

29 C.F.R. §1608.5 (1979) .......  28

41 C.F.R. Part 60.2 (1978) ......... ................   27,84

41 C.F.R. §60-2.11 (1978) ..........................................80

41 C.F.R. §60.2.11(b) (1978) ......................................27

41 C.F.R. §60-2.12 (1978) ..........................................27
Miscellaneous:
110 Cong. Rec. (1964):

P- 6549 ................................................................   40,74
p. 7213 ............................................................   78
p. 7218 .......................................................  .39

p. 8921 ................................................................. 40,78

p. 11847 ......................................................................40

p. 12723 ...................................................................... 78

117 Cong. Rec. (1971):

p. 31963 ................ ................................ . 42,43

vii
TABLE OF AUTHORITIES (Continued)

Page



vm

p. 31964 .......................................................................

p. 31965 ................................................................... 43

124 Cong. Rec. (daily ed„ June 13, 1978):
p. H5371 .....................................................................

p. H5379 .................     45

The Challenge Ahead, Equal Opportunity in 
Referral Unions (U.S. Comm'n. on Civ.
Rts„ May, 1 976 )...........    65

EEOC Decision No. 74-106 (1974), CCH 
Employment Practices Guide 1 6427 ..............  82

EEOC Decision No. 75-268 (1975), CCH 
Employment Practices Guide U 6452 (1975)___82

Executive Order 11246, Subpart D, §209 . . 27,59,79

The National Apprenticeship Program (U.S.
Dept, of Labor, Employment and Training 
Admin., Rev., 1976) .............   .7,67

Note, Developments in the Law — Employment Dis­
crimination and Title VII of the Civil Rights Act of 
1964r 84 Harv.L.Rev. 1109 (1971)......................  86

Report No. 95-1746, 95th Cong., 2d Sess., 25
(Oct. 6 , 1978) ...................................   45

Supplementary Information, Guidelines on 
Affirmative Action, CCH Employment 
Practices Guide H 4011.11 ............................... 28,83

TABLE OF AUTHORITIES (Continued)

Page



IX

TABLE OF AUTHORITIES (Continued)

Page
U.S. Bureau of the Census, 1970 Census of 

Population; Vol. 1 : Characteristics of the 
Population:

Part 20 , Louisiana, Appendix B, App. 4 0 ............62
Part 20 , Louisiana, Table 172 .......................... 62,66
Part 40, Philadelphia, Pa.-N.J., SMSA, Table

1 7 2 ........................... .............................................6 4



Nos. 78-432, 78-435, 78-436

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1978

UNITED STEELWORKERS OF AMERICA, 
AFL-CIO-CLC, PETITIONER

BRIAN F. WEBER, KAISER ALUMINUM & 
CHEMICAL CORPORATION, AND UNITED 

STATES OF AMERICA, RESPONDENTS

KAISER ALUMINUM & CHEMICAL 
CORPORATION, PETITIONER,

BRIAN F. WEBER, RESPONDENT

UNITED STATES OF AMERICA AND EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION, 

PETITIONERS

BRIAN F. WEBER, ET AL.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS



2

QUESTION PRESENTED

May an employer and labor union, solely in order to 
achieve a desired ratio of minority workers in craft 
positions at a manufacturing plant and in the absence 
of any prior discrimination against the minority 
workers at that plant, institute a racial quota for admis­
sion to craft training programs that is preferential to 
members of minority groups and discriminates against 
whites, where job seniority would ordinarily determine 
entry into the training programs?

STATEMENT OF THE CASE

In order to achieve a desired ratio of minority 
workers in craft jobs at a manufacturing plant in 
Gramercy, Louisiana, petitioners, Kaiser Aluminum & 
Chemical Corporation ("Kaiser") and United Steel­
workers of America ("USWA"), instituted a racial 
quota requiring that at least 50 per cent of all applicants 
selected into craft training programs be members of 
minority groups. Brian F. Weber and the class of 
similarly situated white workers at the Gramercy plant 
brought an action under Title VII of the Civil Rights 
Act of 1964 and 42 U.S.C. §1981, alleging that the 50 
per cent racial quota discriminated against them un­
lawfully. An injunction was granted in favor of the 
plaintiffs by the United States District Court for the 
Eastern District of Louisiana1 and this decision was af-

1 Weber v. Kaiser Aluminum & Chemical Corp., 415 F.Supp. 761 (E.D. 
La., 1976).



firmed by the United States Court of Appeals for the 
Fifth Circuit.2

1. Application of the agreement between 
Kaiser and USWA.

The racial quota of Kaiser and USWA was instituted 
as part of the 1974 Labor Agreement executed by the 
parties. The agreement provided in part that "certain 
goals and time tables" would be established by a joint 
committee to facilitate the achievement of a "desired 
minority ratio" in existing trade, craft and assigned 
maintenance classifications at various Kaiser plants, 
including the Gramercy Plant.3 The percentage "goal" 
established by the joint committee for the Gramercy 
Plant was 39 per cent, based on the percentage of 
minority workers in the available work force in the 
area.4 5 The agreement stated;

[A]t a minimum, not less than one minority 
employee will enter for every non-minority 
employee entering until the goal is reached 
unless at a particular time there are insuf­
ficient available qualified minority candidates

5

3

2 Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216 (5th Cir., 
1977).
3 App., 137.
4 App., 60.
5 App., 137.



4

Kaiser estimates that the 50 per cent quota must ex­
ist for at least 30 years in order to reach the 39 per cent 
goal,6 If and when the goal is reached, a percentage 
quota reflecting the percentage of minority workers in 
the overall labor force will be established for the train­
ing programs.7 This quota is expected to be used indef­
initely to assure perpetual "minority representation in 
the plant that is equal to that representation in the 
community work force population."8

Apart from the racial quota imposed by Kaiser and 
USWA, the sole qualification for entry into the train­
ing programs is the seniority of applicants.9 This 
seniority is determined on the basis of "length of 
employment at the plant and is not affected by 
departmental or job seniority. All workers at the plant 
are included in this seniority line."10

6 Brief for Petitioner, Kaiser Aluminum & Chemical Corpora­
tion in No. 78-435 (hereinafter cited as "Brief of Kaiser") at 52-53 
n.135, Exhibit A.
7 App., 69.
8 App., 69. This statement was made by Dennis E. English, in­
dustrial relations superintendent at the Gramercy plant. He also
said:

Once the goal is reached of 39 percent, or whatever the 
figure will be down the road, 1 think it's subject to change, 
once the goal is reached in each of the craft families, at 
that time, we will then revert to a ratio of what that 
percentage is, if it remains at 39 percent and we attain 39 
percent someday, we will then continue placing trainees 
in the program at that percentage. ^  ^

9 App., 73-74, 127.
10 App., 128.



Respondent, Brian F. Weber, was employed as a lab 
analyst at the Gramercy works of Kaiser. In April, 
1974, company bids for the on-the-job training 
programs in the instrument repair, general repairman 
and electrician craft categories were posted by Kaiser.11 
Pursuant to the standard procedure of Kaiser and 
USWA, applicants were to be selected for those 
programs on the basis of seniority.12 Howrever, a condi­
tion of the bid was that at least half of the persons 
selected as prospective trainees would be applicants 
who were members of minority groups.13 Thus, 
applicants for the training programs were selected 
from racially separated seniority lines. Selection was 
made one-for-one "on the basis of their seniority, 
within respective groups of bidders from their race."14

Mr. Weber and other white members of the plaintiff 
class applied for the training programs. However, 
members of minority groups with less seniority than 
white employees were selected preferentially by Kaiser 
for these programs to meet the established quota of at 
least 50 per cent minority representation.15 In each in­
stance of selection of a minority applicant, one or more

11 App., 127.
12 App., 73-74, 127.
13 App., 127.
14 App., 127.
15 App., 127-28. One black trainee and one white trainee were 
selected for the instrument repair training program, one black 
trainee and one white trainee were selected for the electrician 
training program, and three black trainees and two white trainees 
were selected for the general repairman training program. App., 
127-28.

5



6
white workers with greater seniority than members of 
minority groups selected for the training programs 
were denied entry into the training programs solely on 
the basis of the racial criterion.16

Subsequently, company bids were posted for ad­
ditional craft training openings in the air conditioning 
mechanic, 17 insulator and carpenter categories.18 The 
selections for these openings were made on the basis of 
the 50 per cent minority requirement. One of the bids 
barred applications by any white employee, as the bid 
was specifically limited to minority employees only.19 
In all, in the period April through October, 1974, seven 
minority employees were selected for positions in 
training programs in preference to white employees 
pursuant to the 50 per cent quota.20

2 . Desirability of the craft positions.

The craft training programs offered by Kaiser 
presented significant opportunities to the unskilled 
workers at the plant. For years, USWA had negotiated

16 App., 127-28.
17 App., 127. This bid was posted on May 7,1974. A white bidder 
with senior status was selected for this training program; this 
selection re-established a 50-50 racial balance in the training 
programs.
18 App., 127. One black trainee and one white trainee were 
selected for the carpenter training program and one black trainee 
was selected for the insulator training program. App., 127-28.
19 App., 46, 128.

20 App., 128.



to obtain the opportunity for its members to obtain 
craft training.21 Entry into the training programs 
would provide the opportunity for a worker to "better 
[himself] financially"22 by obtaining better hourly pay 
and overtime wages.23 In addition, the benefits 
associated with being a craftsman are greater than for 
unskilled jobs, including the opportunity primarily to 
work the day shift.24 Mr. Weber and other workers also 
perceived the craft positions to be desirable to provide 
job security.25 Mr. Weber said there is "much more job 
security as a craftsman than any other job."26

The craft jobs available at the Gramercy plant re­
quired heavy industrial skills that are acquired only 
after substantial training and schooling.27 In the crafts 
generally in the United States, the necessary skills are 
acquired only after apprenticeship programs lasting up 
to five years.28 Many apprenticeship programs are 
registered with state apprenticeship councils or the 
Bureau of Apprenticeship and Training of the Depart­
ment of Labor.29 These programs must identify certain

21 App., 64, 85.

22 App., 33.

23 App., 33.
24 App., 33.
25 App., 33, 129.

26 App., 33. The parties stipulated that craft jobs “are considered 
desirable and advantageous for financial, job security and other 
reasons." App., 129.
27 App., 67.

28 See, e.g., The National Apprenticeship Program (U.S. Dept, 
of Labor, Employment and Training Admin., Rev. 1976).
29 Id. at 4.

7



8

minimum standards to be met, including a guarantee of 
equal opportunity, work processes to be used in on- 
the-job training, planned related instruction, proper 
evaluation and supervision, and a "term of apprentice­
ship that is consistent with training requirements as 
established by industry practice . . . ,"30

The craft positions at the Gramercy plant required 
special skills necessary for the performance of duties in 
the heavy industrial setting.31 The electrical circuitry 
carrying high voltages, potentially dangerous in­
dustrial chemicals, large and complex industrial equip­
ment and machinery, and sensitive meters and in­
dicators require specialized knowledge and training to 
adequately and safely perform the necessary tasks.32 In 
the training programs at issue in this case, Kaiser 
provides two and one-half to three and one-half years 
of on-the-job heavy industrial training and about "four 
hours of schooling per week by a training super­
visor."33 In addition, the company requires each trainee 
to take and pass from 40 to 66 home courses provided

30 Id. at 5.
31 As a result, Kaiser required prior heavy industrial experience 
for new hires. App., 70.
32 Kaiser maintains job descriptions for each of its craft 
positions. A sample "primary function" is that of the instrument 
repairer:

To layout wiring, inspect, install, test, repair, service, 
maintain, and wire plant indicating and recording, in­
struments, meters, high voltage protective devices, 
gauges, relays, thermometers and pyrometric equip­
ment.

33 App., 67.



by the International Correspondence School.34 Thus, 
the training programs provide a concentrated course of 
study and training for employment in the industrial 
crafts.

3. Impact on the white workers.

The effect of the racial quota instituted by Kaiser and 
USWA was to create separate black and white seniority 
lines for entry into the training programs. As stated by 
Dennis E. English, industrial relations superintendent 
at the Gramercy plant, "in effect [separate seniority 
lines are created] because you skip the whites to get the 
blacks, if necessary."35 In many cases, black bidders 
were selected despite substantially greater seniority 
held by white bidders. One white employee who testi­
fied that he was denied entry into the training 
programs, Fortune H. Maurin,36 possessed more than 
16 years seniority at the time of the trial.37

The effect of the 50 per cent quota was to alter the 
traditional criterion, seniority, for entry into the craft 
training programs.38 Because proportionately more 
white workers than minority workers are employed at 
the Gramercy plant and have obtained senior status, a

34 App., 67.
35 App., 75.

36 Mr. Maurin's name is incorrectly spelled "Moran" in the trial 
transcript, but appears correctly as F. H. Maurin in the exhibits. 
App., 54-59, 156-64.
37 App., 54.
38 App., 101.

9



10
50-50 racial quota deprives whites of their seniority 
rights.39 Thomas M. Bowdle,40 director of equal oppor­
tunity affairs of Kaiser, conceded this point. He said:

Q. So, you recognized that when you 
waive the number one requirement, the 
seniority requirement, and you take a black 
with less seniority than a white, you're 
thereby favoring the black on grounds of race, 
is that right?

A. He's getting preferential treatment, 
that's correct.41

Mr. Bowdle also conceded that “the black is being 
selected for a program primarily on the basis of his 
race."42

The racial quota instituted by Kaiser and USWA, and 
the perceived effect of race discrimination, had a sub­
stantial impact on the white workers of the plant. A 
“sacred"43 and objective criterion for advancement and 
opportunity, seniority, was devalued by the factor of 
race.44 Mr. Bowdle stated that there is “no question" 
that the racial quota “gives . . . minorities, special 
seniority rights, at the expense of white workers hired

39 App., 75, 101-02.
40 Mr. Bowdle's name is incorrectly spelled "Bouble" in the 
transcript.
41 App., 101-02.
42 App., 102.
43 App., 99.
44 App., 99, 102.



11

earlier."45 In addition, Mr. Weber indicated that the 
racial quota had a significant impact on white workers 
and resulted in adverse consequences.415 Mr. Weber had 
"been involved with the Union for several years as a 
trustee [and] as a grievance committee man"47 and was 
"presently chairman of the grievance committee."45 
His responsibilities included dealing "with all the hour­
ly people on the plant site . . . with their problems in 
regard to any contractual violations or other problems 
they might have."49 His familiarity with the attitudes 
of the hourly employees was not challenged.

Mr. Weber stated that "the quota system used by the 
company has had a very bad effect on the white 
workers at the plant."50 One negative impact of the 50 
per cent quota was a deterioration in racial harmony. 
Mr. Weber stated:

[T]he racial relations of the white workers 
tow ard their black counterparts, black 
employees at Kaiser, have progressively 
gotten worse because of the fact that they 
realize that the company and the Union have a 
program in effect which uses race to promote 
employees ahead of themselves.51

45 App., 105
46 App„ 36.
47 App., 35.
48 App., 35.
49 App., 35.
50 App., 36.
51 App., 36.



12

Mr. Weber also stated that "the [white] employees feel 
that the company and the Union are working against 
them, not for them, in advancement and promotions to 
jobs that they might better themselves. They feel that 
they're being held back."52 He indicated that the racial 
quota substantially diminishes the loyalty of white 
workers to Kaiser and USWA and their desire to be 
productive. He said:

[I]t takes away from the initiative of the in­
dividual employee to do more, to do one step 
further, to do all of his job in the best way he 
knows how, because he knows that even no 
matter how well he does it, he won't be able to 
be promoted, because of this 50 percent 
minority requirement of the company.53

4. Reasons for the adoption of the racial 
quota.

The primary reason for the adoption of the 50 per 
cent quota for selection into the craft training 
programs was the small percentage of minority 
workers in craft jobs as compared with the minority 
labor force as a whole.54 Prior to the institution of the 
training programs under the 1974 agreement, only 
about two per cent of the craftsmen at the Gramercy 
plant were minority employees.55 According to Mr.

52 App., 36.
53 App., 37-38.
54 App., 62-64, 137.
55 App., 62, 167.



13

English, Kaiser and USWA were "striving to obtain . . . 
a 39 per cent minority population in each of the craft 
families . . . ."56 The one-for-one hiring program was 
the means adopted to achieve this goal.

Kaiser was motivated to adopt the 50 per cent quota 
in part because of its perception of the wishes of federal 
contract compliance officers.57 However, Kaiser was 
not ordered to implement this action.58 Kaiser had a 
substantial economic reason to comply with federal 
contract compliance suggestions.59 In addition, Kaiser 
believed that it was furthering a national social policy 
by the adoption of the racial quota.60

USWA appears to have concurred in the adoption of 
the racial quota as an affirmative action measure.61 
However, USWA had negotiated for years for the in­
stitution of training programs to provide its members 
with access to craft jobs.62 In the words of the attorney 
for USWA, "the Union's efforts were directed towards 
obtaining additional opportunities for their members,

56 App., 60.
57 App., 83, 92-93.
58 App., 84.
59 App., 77.
60 App., 95. The district court indicated that the racial quota was 
also adopted to avoid "vexatious litigation," but there was no 
evidence that any black employees had threatened suit based on 
the makeup of craft positions at the Gramercy plant. 415 F.Supp. 
at 765. The agreement was adopted for a number of plants, some 
of which may or may not have been potential litigation targets.
61 See Petition for a Writ of Certiorari filed on behalf of USWA 
in this Court, No. 78-432.
62 App., 73.



14

who were also Kaiser employees, as opposed to creat­
ing opportunities for people from the street."63 Thus, 
the training programs were instituted to benefit union 
members, and were not solely an affirmative action 
measure having incidental benefits for white as well as 
black workers.

The racial quota was not implemented by Kaiser and 
USWA to remedy past discrimination, but instead was 
designed to help uplift the employment status of 
minority workers as a class.64 65 The program was part of 
a national plan to compensate for the unavailability of 
minority craftsmen of the type employed by Kaiser.66 
As stated by USWA in its brief,66 "[t]he program was 
negotiated without regard to specific conditions at any 
one plant, and certainly was not based on an assess­
ment of the particulars of the situation at the Gramer- 
cy plant."67 Kaiser believed that it had not discrim­
inated against minority workers at the Gramercy 
plant.68 Instead, Mr. Bowdle indicated that the racial 
quota was necessitated by the adverse impact on 
minorities of general societal discrimination.69 Mr. 
Bowdle stated that "past discrimination in the field of 
education, job training, et cetera, has created the condi­
tion that we have to deal with in terms of minority

63 App., 85.
64 Opinion of the district court, 415 F.Supp. at 765.
65 App., 92-94, 99-100.
66 Brief for Petitioner, United Steelworkers of America, AFC- 
CIO-CLC (hereinafter cited as "Brief of USWA").
67 Id. at 5.
68 App., 108, 99.
69 App., 99-100.



15

craftsm en."70 These factors, according to Mr. Bowdle, 
have also led to low minority ratios "for lawyers, for 
doctors, for engineers."71

While Kaiser believed on the basis of the "sum total 
of our experience"72 that the class of blacks generally 
has suffered societal discrimination, no effort was 
made to identify any individual subjected to societal 
discrimination.73 To the extent that the racial quota 
was designed to rectify past discrimination as well as 
to achieve a desired statistical ratio, it was based on an 
assumption concerning minority classes rather than 
any evidence as to individuals.74 75 Indeed, Mr. Bowdle 
indicated that some blacks may not have suffered 
societal discrimination, while some whites may have 
endured this hardship.73 In this case, the whites whose 
seniority rights were diluted under the racial quota 
were no better off than the preferred blacks in terms of 
craft-preparedness because "all of the whites who were 
passed over lacked the skills that the blacks lacked."76 
Kaiser did not believe that any of the individuals 
preferred under the racial quota were ever subjected to 
employment discrimination by Kaiser.77 The 50 per

70 App., 99-100.
71 App., 100.
72 App., 100.
73 App., 100.
74 App., 100.
75 App., 101.
76 App., 101.
77 App., 99.



16

cent quota was implemented "to increase the repre­
sentation of minorities [in the crafts] that will ap­
proximate the participation in the labor market. . . ,"78

5. Availability of minority craftsmen.

Although the percentage of minority craftsmen at 
the Gramercy plant was smaller than the minority 
representation in the labor force overall, it was not 
smaller than the percentage of skilled heavy industrial 
craftsmen in the Gramercy area. The evidence estab­
lished that "[t]he available supply of trained craft and 
trade personnel available for hire by the company as 
new employees has been, and remains to the present 
time, almost entirely made up of white males."79 Mr. 
English said that craftsmen with heavy industrial skills 
were not available: "Once again, we can advertise all we 
want, and look as hard as we can look, and they just 
aren't available."80 He agreed that there might be "as 
little as one or two per cent minority craftsmen in St. 
James and St. John's parrishes (sic)."81 Mr. Bowdle 
stated that the availability of skilled craftsmen was 
"minimal" and, with ordinary minority recruitment 
measures, Kaiser would "end up baying at the moon, as 
it were."82

78 App., 105
79 App., 126
80 App., 63.
81 App., 76.
82 App., 93.



17

The means adopted by Kaiser to increase the percen­
tage of minority craftsmen at the Gramercy plant were 
expensive. The minimum cost of the program of on- 
the-job training, classroom instruction and home study 
was $15,000 to $20,000  per trainee per year.83 Had 
minority craftsmen been available in the work force at 
large, Kaiser could have increased the ratio of minority 
craftsmen at the plant without this cost. Mr. Bowdle 
stated:

Q. Now, sir, on a pure economic basis, 
what would be the cheapest procedure, on the 
pure cost approach, for obtaining qualified 
craft employees at the various Kaiser plants?

A. Hire them off the street. If we had ade­
quate supply of craftsmen, candidates coming 
off the street, that would be the logical way 
for us to fill our craft jobs, rather than train, 
because training costs money.84

Prior to the institution of the racial quota, Kaiser 
tried a number of affirmative action methods to attract 
minority craftsmen. The company set goals and 
timetables to increase the percentage of minorities in 
the crafts.85 In addition, it advertised "in minority-only 
newspapers" and maintained separate craft application 
f ile s .86 According to the industrial relations

83 App., 67-68.
84 App., 95.
85 App., 62.
86 App., 62.



18

superintendent, "any time the craft vacancies comes 
up, our first thing, we will go to that craft file and we 
will try to locate qualified black craftsmen, and we 
always look for the blacks before the whites. . . ,"87 
However, the few minority craftsmen in the area were 
already employed "because companies like Kaiser 
anywhere are hiring blacks first, or they're attempting 
to get blacks on the payroll."88 The quota was insti­
tuted because "the officials of both Kaiser and the 
Steelworkers realized that something other than the 
ordinary, look until you find them, had to be done to get 
blacks into the crafts."89

6. Absence of prior discrimination.

The seniority criterion for entry into training 
programs is based on the date of hire at the plant and is 
applicable to all employees.90 Promotional decisions at 
the Gramercy plant were never based on race.91 Deter­
minations of seniority for selection into training 
programs are based on "length of employment at the 
plant."92 The Gramercy plant of Kaiser was opened in 
1957 or 1958 and discrimination against blacks in hir­
ing has never occurred at this plant.93 Some "very 
senior black employees that were hired in and started

87 App., 62-63.
88 App., 63.
89 App., 64.
90 App., 72.
91 App., 72-73.
92 App., 128.
93 App., 77-78.



19

the plant in 1957-58" have obtained "pretty highly paid 
top jobs in the plant. . . ,"94

The district court found that the quota adopted by 
Kaiser and USWA was not implemented "with a view 
tow ard correctin g  the effects of prior dis­
crimination."95 In addition, it found:

The evidence further established that Kaiser 
had a no-discrimination hiring policy from the 
time its Gramercy plant opened in 1958, and 
that none of its black employees who were 
offered on the job training opportunities over 
more senior white employees pursuant to the 
1974 Labor Agreement had been the subject 
of any prior employment discrimination by 
Kaiser.96

In the district court USWA contended that the 
statistical showing of a low ratio of minority workers in 
craft jobs was sufficient to make out a case of past dis­
crimination.97 This contention was rejected by the dis­
trict court on the basis of all the evidence.98 The court 
of appeals upheld this decision, specifically quoting and 
approving the finding of the district court that the low 
percentage of minority craftsmen did not establish past
94 App., 71.
95 415 F.Supp. at 765.
96 415 F.Supp. at 764.
97 Post-Trial Brief of Defendant, United Steelworkers of 
America AFL-CIO.
98 415 F.Supp. at 764.



20

discrimination." In the court of appeals, USWA argued 
that certain training programs of Kaiser existing prior 
to 1974 that required prior experience may have been 
discriminatory because minorities lacked this ex­
perience.99 100 However, a disparate impact of the re­

99 415 F.Supp. at 764; 563 F.2d at 224.
100 Prior to the institution of the training programs involving 
no prior experience requirement in 1974, Kaiser filled its craft 
positions primarily by hiring fully trained craftsmen from outside 
the plant. App., 65. However, pursuant to the efforts of USWA to 
open craft jobs to union members within the plant, Kaiser institut­
ed two partial training programs prior to 1974 in which persons 
with previous experience were accepted and trained. App., 64-65, 
126. The training programs involved acceptance of persons with 
experience of one year in the carpenter-painter craft from 1964 
until 1971, acceptance of applicants with three years experience in 
the general repairman category from 1968 until 1971, and selec­
tion of persons with two years experience in the general repair­
man craft from 1971 until 1974. App., 126.

In these training programs involving selection of employees 
with prior experience, it was necessary only for Kaiser to provide 
training to the employee for the balance of training he did not 
have. App., 64-65. Thus, the general repairman training program 
into which employees with three years experience were selected 
lasted two years; when this program was modified for selection of 
applicants with two years experience, the training program was 
lengthened to three years. App., 126. The minimum cost to Kaiser 
of each year of training, for each trainee, was $15,000 to $20,000. 
App., 68.

Of 292 craft employees at Kaiser in 1975, only 28 entered 
through the prior experience training programs. App., 126. These 
training programs were open to members of minority groups as 
well as whites with the requisite experience. App., 126. Of the 28 
persons who completed the prior experience training programs 
during their 10 year existence, seven per cent were black. App., 
126. This percentage is identical to the ratio of black bidders with 
no prior experience in the top 28 positions of seniority at the time 
of the institution of the training programs at issue in this case. 
App., 156.



21

quirement could not be shown101 and the district court 
implicitly found the prior experience requirement to be 
business related.102 In addition, the court of appeals 
held these programs "so limited in scope that the prior 
craft experience requirement cannot be characterized 
as an unlawful employment practice, especially when 
Kaiser was actively recruiting blacks to its craft families 
during the same period."103 Thus, both courts found 
that Kaiser had not discriminated against blacks at the 
Gramercy plant.

The dissenting judge in the court of appeals, the Hon. 
John Minor Wisdom, contended that "arguable 
violations" of Title VII existed, but indicated that 
"Kaiser did act in good faith [and] made admirable 
attempts to recruit black craftsmen."104 In addition, he 
conceded that "the three potential violations discussed 
above may not make the district court's finding [of no 
discrimination] 'clearly erroneous' in the sense con­
templated by Rule 52(a), F.R.C.P. . . ,"105

No party contends that the minority workers 
preferred under the racial quota are identifiable victims 
of any past discrimination.

101 See n. 100 supra.
102 See 563 F.2d at 232 (Wisdom, dissenting).
103 Id. at 224 n. 13.
104 Id. at 232.
105 Id. at 232.



22

7. Procedural background.

This case was filed December 31, 1974 after the 
issuance of a righ t-to-sue letter by the New Orleans of­
fice of the Equal Employment Opportunity Commis­
sion ("EEOC")-106 The national office of the EEOC 
became aware of the case almost immediately and, 
prior to the filing of answers by Kaiser and USWA, a re­
quest was made by an EEOC staff attorney for copies of 
the pleadings filed by Mr. W eber.107 Every important 
pleading filed by the plaintiffs was sent to this at­
torney.108 Copies of the stipulation and six of the seven 
exhibits were also provided to the EEOC.109 The EEOC 
staff attorney discussed the case with counsel for each 
party.110 Despite its knowledge of and interest in the 
case, the EEOC determined not to intervene at the dis­
trict court level.

The suit of Mr. Weber was filed and certified as a 
class action.111 Pursuant to the order of the district 
court, the Approved Form of Notice was required to be

106 The right-to-sue letter was filed in the district court. 
Counsel was asked by the district court to investigate the charge 
and institute suit if appropriate. Thereafter, counsel was formally 
appointed by the district court to represent Mr. Weber. See App.,

107 See Brief for Respondents in Opposition to the Petition for 
Writs of Certiorari at 5.
108 Id. at 5-6.
109 Id. The relevant portion of the seventh trial exhibit was con­
tained in the stipulation.
110 App. 30-31.
111 App., 24.



23

posted "on all employee bulletin boards at the Gramer- 
cy, Louisiana works . . . and at the Union Hall [of 
USWA]."112 The Approved Form of Notice stated in 
part that the suit "alleges that the selection policies of 
the defendants for [on-the-job] training programs, 
which require the selection of minority applicants to fill 
at least fifty percent of the available vacancies in the 
training programs, constitute race discrimination [in 
violation of Title VII and 42 U.S.C. §1981],"113

Although the trial lasted only one day, a large 
amount of statistical data submitted by Kaiser was 
stipulated into evidence by the plaintiffs and other facts 
were also stipulated.114 A substantial portion of the 
trial was devoted to reviewing the past employment 
practices of Kaiser and the reasons for the low percen­
tage of minority craftsmen.115 The case was under ad­
visement in the district court for more than 14 
months.116 The district court ruled in favor of the 
plaintiffs, holding that the racial quota violated the

112 App., 25.

113 R., Equal Employment Opportunity in Selection for On-the- 
Job Training Programs, Approved Form of Notice. Fifth Cir. App., 
35. This notice was omitted from the Appendix in this Court.
114 App., 124 et seq.

115 See text at nn, 90-105 supra.
116 The opinion of the district court was issued June 17,1976.



24

rights of white employees under Title VII of the Civil 
Rights Act of 1964.117

The court of appeals affirmed,118 holding that "[i]t is 
undeniable that the 1974 Labor Agreement's one-for- 
one ratio for training eligibility discriminates on the 
basis of race."119 The court held that while remedial ac­
tion designed to correct past discrimination by the 
employer and restore employees to their "rightful 
place" is permissible under Title VII, racial preferences 
are not.120 The court of appeals concluded:

Where admissions to the craft on-the-job 
training programs are admittedly and purely 
functions of seniority and that seniority is un­
tainted by prior discriminatory acts, the one- 
for-one ratio, whether designed by agreement 
between Kaiser and USWA or by order of 
court, has no foundation in restorative justice,

117 415 F.Supp. at 769-70.
118 563 F.2d 216. The Hon. John Minor Wisdom dissented from 
the decision.
119 563 F.2d at 223.
120 Id. at 225.



25

and its preference for training minority 
workers thus violates Title VII.121

8. Published posture of the Government.

The United States and the EEOC (collectively 
referred to as "the Government"), petitioners, support 
Kaiser and USWA in this case and contend that the 
racial quota is valid as a "remedy" for "apparent" 
violations of Title VIE122 This position is asserted to be 
consistent with the current posture of the EEOC under 
its affirmative action guidelines.123 In light of this con­
tention, a brief review of the published affirmative ac­
tion posture of the Government is appropriate.

The affirmative action guidelines124 were published 
by the EEOC in an effort to insulate employers from 
liability to white employees for preferences enacted in 
favor of minority workers under affirmative action 
programs.125 The guidelines were assertedly

121 Id. at 226. After the decision of the court of appeals, the 
United States and Equal Employment Opportunity Commission, 
which had participated at the appellate level as amici curiae, moved 
for and were granted permission to intervene as parties. The 
appellants petitioned for rehearing and suggested rehearing en 
banc. These petitions were under consideration for more than 
three months, but were denied on April 17, 1978. 571 F.2d 337.
122 Brief for the United States and The Equal Employment Op­
portunity Commission (hereinafter cited as "Brief of the Govern­
ment") at 35-42.
123 Brief of the Government at 40-41.
124 29 C.F.R. Part 1608 (1979).
125 29 C.F.R. §§1608.1, 1608.2 (1979).



26

promulgated pursuant to Section 713(b) of Title VII,126 
which provides that no person shall be subject to liabili­
ty in "any action or proceeding based on any alleged un­
lawful employment practice . . . if he pleads and proves 
that [he acted] in good faith, in conformity with, and in 
reliance on any written interpretation or opinion of the 
Commission. . . ."127

The guidelines require a "reasonable basis" for the 
preferences granted under the affirmative action 
plan.128 However, a reasonable basis does not require 
an apparent or even arguable violation of Title VII.129 
Indeed, "[i]t is not necessary that the self-analysis es­
tablish a violation of Title VII, This reasonable basis ex­
ists without any admission or formal finding that the 
person has violated Title VII, and without regard to 
whether there exist arguable defenses to a Title VII ac­
tion."130 The affirmative action is "appropriate" 
whenever there has been an actual or potential adverse 
impact on minorities of business practices, when there 
is a disparity in the minority ratio between the 
"employer's work force, or a part thereof, and an ap­
propriate segment of the labor force," or when there is 
limited availability of minority workers in the labor 
pool.131

126 42 U.S.C. §2000e-12(b) (1976).
127 Id. §2000e-12(b)(l).
128 29 C.F.R. §1608.4(b).
129 Id.
130 Id.
131 29 C.F.R. §1608.3 (1979).



The employer is specifically authorized to find a 
reasonable basis for instituting preferences under the 
technique set forth in Revised Order No. 4 of the Of­
fice of Federal Contract Compliance ("OFCC").132 This 
order requires affirmative action whenever 
"underutilization" is found in any job group.133 
Underutilization means "having fewer minorities or 
women in a particular job group than would reasonably 
be expected by their availability."134 In its utilization 
analysis, the contractor must consider not only the 
availability of minorities having the requisite skills in 
the work force, but also the minority population in the 
labor area, the size of the minority unemployment 
force in the labor area, the percentage of the minority 
work force as compared with the total work force, and 
other factors.135

If underutilization exists, the employer must estab- 
lishs "goals" that are "specific for planned results" and 
must meet the goals within designated timetables.136 A 
contractor that fails to comply with OFCC re­
quirements may be subjected to loss of its federal con­
tracts, debarment from future federal contracts and 
other penalties.137

The "reasonable action" deemed appropriate under 
the affirmative action guidelines includes "goals and

132 29 C.F.R. §1608.4(a) (1979); 41 C.F.R. Part 60-2 (1978).
133 41 C.F.R. §60-2.11(b) (1978).
134 Id.
135 Id.
136 41 C.F.R, §60-2.12.
137 Executive Order 11246, Subpart D, §209.

27



28

timetables or other appropriate employment tools 
which recognize the race, sex or national origin of 
applicants or employees."138 Actions adopted in com­
pliance with Revised Order No. 4 will receive the ap­
proval and protection of the EEOC guidelines.139 
Preferences may be provided to minority workers or 
women "regardless of whether the persons benefitted 
were themselves the victims of prior policies or 
procedures which produced the adverse impact or dis­
parate treatment or which perpetuated past dis­
crimination."140 141

The affirmative action guidelines were issued on 
December 11, 1978, the same day that certiorari was 
granted in this case. The EEOC denied any conflict 
between the guidelines and the decision of this Court in 
Regents of the University of California v. Bakke, b e c a u s e  in 
Bakke "the university did not assert reliance on any 
detailed guidance and procedures for crafting an affir­
mative action plan."142 The EEOC recognized the con­
flict between the decision of the Fifth Circuit in this 
case and the guidelines. Rather than deterring the 
EEOC from issuing the guidelines, however, the deci­
sion of the Fifth Circuit was deemed to make them all

138 29 C.F.R. §1608.4(c).
139 29 C.F.R. §1608.5.
140 29 C.F.R, §1608.4(c).
141 ------U.S---------, 98 S.Ct. 2733 (1978).
142 Supplementary Information, Guidelines on Affirmative Ac­
tion, CCH Employment Practices Guide II 4011.11. The implica­
tion of this statement, of course, is that reliance on these or similar 
guidelines could have changed the decision of the Court in Bakke.



29

the more necessary: "[T]he clarification provided by 
these Guidelines is necessary because the Weber deci­
sion may be interpreted to unduly interfere with the 
range of affirmative action which Congress intended to 
permit under Title VII."143

ARGUMENT 

Summary of Argument

1. Regardless of the benign and appealing phrases 
used by the Government, Kaiser and USWA to describe 
the 50 per cent racial quota,144 the operation of the 
quota presents a classic case of race discrimination 
against whites. The white workers at the Gramercy 
plant were denied valuable employment opportunities 
solely on the ground of race. The 50 per cent quota re­
quired the selection of minority applicants over white 
applicants with greater seniority. This selection system 
in effect created two separate lines of seniority based 
on race, artificially diluted the seniority rights of white 
workers, and required the selection of a greater percen­
tage of minority workers for training programs than 
the percentage of minority workers employed at the 
plant. Therefore, the 50 per cent quota is an open and 
intentional policy of discrimination against white 
workers.

143 Id.
144 E.g., Kaiser describes the racial quota as "voluntary race 
conscious action." Brief of Kaiser at 30. The Government 
describes the training programs as "race-conscious training 
programs." Brief of the Government at 36.



30

2. Employment discrimination against white 
workers is just as illegal under Title VII as discrimina­
tion against minority employees. Title VII was passed 
by Congress to prohibit all forms of racial bias in 
employment. The decisions of this Court and the 
legislative history of the statute establish that racial 
quotas of any kind are illegal. These authorities are 
consistent with the constitutional decisions of this 
Court, which establish that the reverse racial quota im­
plemented by Kaiser and USWA would be un­
constitutional if imposed by the Government.

3. The contentions raised in support of the dis­
criminatory racial quota have no merit. No "apparent" 
past discrimination existed in this case. No effort was 
made by Kaiser or USWA to identify any past dis­
crimination. The sole purpose of the 50 per cent quota 
was to achieve the same ratio of minority workers in 
the crafts at the Gramercy plant as the ratio of minority 
employees in the local labor force. A racial preference 
imposed to achieve a ratio of minority workers in 
designated jobs, even if this ratio is deemed socially 
desirable by corporate or union executives or govern­
ment officials, is a violation of Title VII.

4. The claims that Kaiser had a reasonable basis to 
believe that past discrimination had occurred are 
without merit. Kaiser did not enact the racial quota as a
remedy" for past discrimination. Moreover, the low 

percentage of minority craftsmen at the Gramercy 
plant was not due to discrimination by Kaiser, but to



31

the unavailability of minority craftsmen with the req­
uisite skills in the labor force. Kaiser tried a number of 
affirmative action measures to increase the ratio of 
minority craftsmen at the plant, but these craftsmen 
were not available. Furthermore, the speculation as to 
an arguable or potential discriminatory effect of the 
prior experience requirement for craftsmen at the 
Gramercy plant is invalid. The prior experience re­
quirement was neutral on its face and business related. 
No suggestion has been made of any basis for question­
ing the business necessity of the prior experience re­
quirement. Kaiser did not believe that the prior ex­
perience requirement was invalid in any way, and this 
requirement was not a justification for the institution 
of the racial quota.

5. To the extent that Kaiser and USWA believed 
the 50 per cent quota to be remedial, the "remedy" was 
for discrimination believed to have been practiced by 
society at large against the various classes of 
minorities, not against individuals. No attempt was 
made to provide a "remedy" to any individual victim of 
discrimination by Kaiser. None of the individuals 
preferred under the racial quota was ever subjected to 
employment discrimination by Kaiser. No attempt was 
ever made to determine whether any of the preferred 
minority employees had suffered discrimination at the 
hands of society. The racial quota embodied a policy of 
race discrimination against white individuals to achieve 
the general advancement of minority classes. This 
policy is unlawful under Title VII.



32

6. The legislative history of Title VII does not 
demonstrate an intent to permit the voluntary enact­
ment of racial quotas by private parties to achieve the 
advancement of minority groups. This interpretation 
of USWA is drawn from a strained reading of the 
repeated and vigorous denials of the sponsors of Title 
VII that the statute would require quotas. The negative 
inference of USWA is inconsistent with the express 
prohibition of any race discrimination in the statute, 
the decisions of this Court, and other statements of the 
sponsors of Title VII.

7. The discrimination against white employees can­
not be validated by the executive orders requiring affir­
mative action by government contractors. To the ex­
tent that the executive orders and the affirmative ac­
tion regulations of the OFCC conflict with Title VII, 
the statute prevails. An affirmative action practice that 
overtly discriminates against non-minority employees 
is neither reasonable nor legal. In addition, a training 
program that discriminates on the basis of race is not 
valid simply because it provides opportunities to the 
disadvantaged class as well as the preferred class.

8. The racial quota of Kaiser and USWA carries 
significant adverse consequences. Advancement of 
minorities solely on the basis of race injures innocent 
non-minority workers and may lead to increased racial 
animosity. Moreover, this policy could enhance 
stereotyped beliefs about minority employees held in 
the society at large. Furthermore, policies of advance-



33

merit of employees that are unrelated to qualifications 
or ability may undermine the incentive of employees to 
be productive. In addition, the "zone of reasonable­
ness" rule proposed by Kaiser and the Government 
may have uncontrollable and undesirable conse­
quences. judicial approval of a rule permitting dis­
criminatory treatment of white workers could lead to 
resentment among whites of the entire equal rights 
movement. In addition, if the rule were applied even- 
handedly, it could require the judicial approval in the 
future of programs that discriminate against minority 
workers, when the discriminatory programs are alleg­
ed to be "remedies" for past disparate treatment of 
white employees under affirmative action programs. 
The long term objective of racial equality will not be 
served by a program that spurs the advancement of 
minorities only by denying opportunities to whites.

I. The Racial Quota Imposed By Kaiser And 
USWA Is Illegal Under Title VII Because 
It Discriminates Against Non-Minority 
Employees.

The 50 per cent minority quota of Kaiser and USWA 
is an openly discriminatory system of selection of 
applicants for on-the-job training programs. The selec­
tion quota requires that minority employees be favored 
over more senior white employees solely on the basis of 
race. Under Title VII of the Civil Rights Act of 1964 and 
the authorities interpreting this statute, the reverse 
racial quota is illegal.



34

A. Race Discrimination Against Any Employee Is 
Prohibited Under Title VII, Whether or Not the 
Employee Is a Member of a Government- 
Recognized Minority Group.

Title VII of the Civil Rights Act of 1964 specifically 
prohibits discrimination in employment against anyone 
on the basis of race.145 Section 703(a) of Title VII 
prohibits an employer from discriminating "against 
any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual's race, color, religion, sex or national 
origin."146 Moreover, Section 703(d) prohibits dis­
crimination on grounds of race in the selection of 
applicants for training programs. It states:

It shall be an unlawful employment practice 
for any employer, labor organization, or joint 
labor-management committee controlling ap­
prenticeship or other training or retraining, 
including on-the-job training programs to dis­
criminate against any individual because of his 
race, color, religion, sex, or national origin in 
admission to, or employment in, any program 
established to provide apprenticeship or other 
training.147

Section 703 makes no exception for discrimination

145 42 U.S.C. §2000(e) et seq.
146 Id. §2000(e)-2(a).
147 Id. §2000(e)-2(d).



35

against white employees. In fact, the categorical 
prohibition of any racial discrimination establishes that 
Title VII prohibits discrimination against white 
workers as well as minority employees. Thus, the racial 
quota of Kaiser and USWA violates the provisions of 
Title VII.

Our reading of Title VII is consistent with the 
decisions of this Court. In McDonald v. Santa Fe Trail 
Transportation Co.,148 the Court ruled that white persons 
may assert claims under Title VII and the same stan­
dards that are used in cases brought by minority 
employees are applicable to the claims of whites.149 The 
Court stated:

Title VII of the Civil Rights Act of 1964 
prohibits the discharge of "any individual" 
because of "such individual's race." Its terms 
are not limited to discrimination against 
members of any particular race. . . .

This conclusion is in accord with uncon­
tradicted legislative history to the effect that 
Title VII was intended to "cover all white men 
and white women and all Americans," and 
create an "obligation not to discriminate 
against whites." We therefore hold today that 
Title VII prohibits racial discrimination 
against the white petitioners in this case upon

148 427 U.S. 273, 96 S.Ct. 2574 (1976).
149 427 U.S. at 278-80, 96 S.Ct. at 2578-79.



36

the same standards as would be applicable 
were they Negroes and Jackson white. 
(Citations omitted).150

The conclusion that whites are protected by Title VII 
is also supported by the decision of the Court in Griggs 
v. Duke Power Co.151 In Griggs, the Court held that tests 
administered to determine selection for employment 
that have a disproportionate adverse impact on minori­
ty applicants must be job related. In reviewing the pur­
pose and intent of Congress in adopting Title VII, the 
Court stated:

Congress did not intend by Title VII, however, 
to guarantee a job to every person regardless 
of qualifications. In short, the Act does not 
command that any person be hired simply 
because he was formerly the subject of dis­
crimination, or because he is a member of a 
minority group. Discriminatory preference 
for any group, minority or majority, is precise­
ly and only what Congress has proscribed. 
What is required by Congress is the removal 
of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers 
operate invidiously to discriminate on the 
ba sis of racial or other impermissible 
classification.152

150 Id.
151 401 U.S. 424. 91 S.Ct. 849 (1971).
152 401 U.S. at 430-31, 91 S.Ct. at 853.



37

Thus, the Court's holding establishes that Title VII 
outlaws preferences in favor of minority as well as non­
minority employees.

In the decision last term in City of Los Angeles, Depart­
ment of Water and Power v. Manhart,153 the Court in a sex 
discrimination case stated that Title VII was "designed 
to make race irrelevant in the employment market."154 
The Court held that the policy of the statute requires a 
focus on fairness to individuals, not fairness to 
classes.155 In addition, the Court stated:

The statute makes it unlawful "to dis­
criminate against any individual with respect to 
his compensation, terms, conditions or 
privileges of employment, because of such in­
dividual's race, color, religion, sex, or national 
origin." (emphasis added). The statute's focus 
on the individual is unambiguous. It precludes 
treatment of individuals as simply com­
ponents of a racial, religious, sexual, or 
national class. . . . (Citation omitted).156

In another decision rendered last term, Furnco Construc­
tion Corp. v. Waters,157 the Court reiterated this principle. 
It said: "It is clear beyond cavil that the obligation im­

153 435 U.S. 702, 98 S.Ct. 1370 (1978).
154 Id. at 709, 98 S.Ct. at 1376.
155 Id.
156 Id. at 708, 98 S.Ct. at 1375.
157 _____ U.S. ___ , 98 S.Ct. 2943 (1978).



38

posed by Title VII is to provide an equal opportunity for 
each applicant regardless of race, without regard to 
whether members of the applicant's race are already 
proportionately represented in the work force."158

The decisions of this Court establish the illegality of 
the racial selection criterion used for the craft training 
programs. The application of the racial quota creates a 
preference in favor of a minority worker, to the detri­
ment of a white, each time a selection is made of a 
minority worker without the highest seniority status. 
The 50 per cent quota creates two lines of seniority, 
one for the preferred minority workers and one for 
whites. For each person selected from the plant-wide 
seniority line for the training programs, a person must 
be selected from the seniority line of minority 
employees. Applying the "same standards as would be 
applicable"159 160 if separate seniority lines favoring whites 
had been created, the racial quota is illegal under Title 
Y U . 160

Our interpretation of Title VII is also supported by 
the legislative history of the statute. This legislative 
history is reviewed exhaustively in the Brief of USWA 
and it is not necessary to present it in full in this brief. 
As USWA suggests, the legislative history 
demonstrates that the sponsors intended to prohibit

158 Id. at _ _ _ , 98 S.Ct. at 2951.
159 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. at 280, 96 
S.Ct. at 2579.
160 See, e.g., Local 189, United Papermakers and Paperworkers, AFL- 
CIO, CLC v. United States, 416 F.2d 980 (5th Cir. 1969).



39

any requirement of a preference to achieve a racial 
balance.161 In addition, this history establishes that 

Congress intended to prohibit preferences in favor of 
any race.162

The intent of Congress concerning Title VII is 
demonstrated in the "Objections and Answers" sub­
mitted by Senator Joseph S. Clark, a floor manager of 
the bill. It states:

Objection: The bill would require
employers to establish quotas for nonwhites 
in proportion to the percentage of nonwhites 
in the labor market area.

Answer: Quotas are themselves dis­
criminatory.163

The statement that "[q]uotas are themselves dis­
criminatory"164 is supported by the observations of 
other sponsors of Title VII. In response to the claim 
that Title VII would allow the Commission to impose 
quotas, Senator Hubert S. Humphrey stated:

[T]he very opposite is true. Title VII prohibits 
discrimination. In effect, it says that race,

161 42 U.S.C. §2000e-2(j); Brief of USWA at 25, 70-74.
162 McDonald v. Santa Fe Trail Transport Co., 427 U.S. 273, 280, 96 
S.Ct. 2574, 2578-79 (1976).
163 110 Cong. Rec. 7218 (1964).
164 Id.



40

religion and national origin are not to be used 
as the basis for hiring and firing. . . ,165

Senator Harrison A. Williams, Jr., another supporter of 
the bill, stated that "[t]hose opposed . . . should realize 
that to hire a Negro solely because he is a Negro is racial 
discrimination, just as much as a 'white only' employ­
ment policy."166 He added: "There is an absolute 
absence of discrimination for anyone; and there is an 
absolute prohibition against discrimination against 
anyone."167

If any doubt as to the "color blind" meaning of Title 
VII could have existed, it should have been erased by 
the explanation of the bill submitted by Senator 
Humphrey, which had been approved by the bipartisan 
floor managers of the bill in both houses of Con­
gress.168 It said:

The title does not provide that any 
preferential treatment in employment shall be 
given to Negroes or any other persons or 
groups. It does not provide that any quota 
systems may be established to maintain racial 
balance in employment. In fact, the title would 
prohibit preferential treatment to any par­
ticular group, and any person, whether or not

165 Id. at 6549.
166 Id. at 8921.
167 Id.
168 Id. at 11846-48.



41

a member of any minority group, would be 
permitted to file a complaint of discriminatory 
employment practices. . . ,169

Thus, no hidden meaning exists in the statute. The ap­
parent intent to prohibit any race discrimination is sup­
ported by the legislative history.170

Contrary to the claims of Kaiser171 and the 
Government,172 the rejection of proposed amendments 
to Title VII in 1972 did not change the meaning or in­
tent of the statute. Amendments proposed by Senator 
Sam Ervin to prohibit quotas and goals were rejected in 
the Senate, but this action does not suggest that the 
Senate wished to approve preferential quotas. Based on 
the language and legislative history of the statute, 
Congress had every reason to believe that racial quotas 
were already prohibited by Title VII. Although some 
courts in special circumstances may have approved 
numerical ratios in an effort to correct for past dis­
crimination under Title VII,173 this Court had an­
nounced in Griggs v. Duke Power Co, that "[dis­
criminatory preference for any group, minority or ma­
jority, is precisely and only what Congress has

169 Id . at 11848.
170 The legislative history is also reviewed exhaustively in Jersey  
C en tra l P ow er &  L ight C o. v. L ocal 3 2 7 ,  1B E W , 508 F,2d 687 (3d Cir., 
1975) and W aters  v. W iscon sin  S teel W o rk s  o f  In te rn a tion a l H a rv es te r  C o., 
502 F.2d 1309 (7th Cir., 1974). Both courts drew the same con­
clusions.
171 Brief of Kaiser at 34-35.
172 Brief of the Government at 31-35.
173 See Brief of the Government at 33.



proscribed."174 Thus, a system of racial quotas to 
achieve numerical ratios was not believed to be 
authorized under the statute.175 Moreover, the Senate 
may have believed the Ervin amendments could under­
mine the power of the courts to grant remedies to in­
dividuals victimized by race discrimination. Further­
more, the failure to take a proposed action in 1972 can­
not provide a basis for interpretation of a bill passed in 
1964.

42

In the House, Rep. John H. Dent proposed an anti­
quota amendment to H.R. 1746, a bill designed to ex­
pand the enforcement powers of the EEOC. Neither 
the enforcement portion of the original H.R. 1746 nor 
the Dent amendment ever was put to a vote.176 The 
debate on the amendment, however, establishes the 
understanding of the members of the House that 
quotas and preferences were already prohibited under 
Title VIE177 The amendment offered by Rep. Dent was 
not intended to make any change in the substance of 
Title VII, but only to make emphatic the prohibition of

174 401 U.S. 424, 431, 91 S.Ct. 849, 853 (1971).
175 See the discussion of the United States Court of Appeals for 
the Fifth Circuit in Local 189, United Papermakers and Paperworkers, 
AFL-CIO, CLC v. United States, 416 F.2d 980, 995 (5th Cir., 1969): 
"[Cheating fictional employment time for newly-fired Negroes 
would comprise preferential rather than remedial treatment. The 
clear thrust of the Senate debate is against such preferential treat­
ment on the basis of race
176 A substitute for the enforcement provisions of H. R. 1746 
was offered by Rep. John N. Erlenborn and was eventually passed 
by the House.
177 See, e.g., 117 Cong. Rec. 31963.



43

preferences imposed by the government and quell the 
fears of some House members concerning the potential 
results of expanded EEOC enforcement authority.178 
Rep. Augustus F. Hawkins, who spoke in favor of the 
amendment, stated repeatedly that Title VII already 
prohibited the use of quotas.179 He said:

Again some say that this bill seeks to es­
tablish quotas and stop discrimination in 
reverse. Not only does title 7 prohibit this, but 
it establishes beyond any doubt a prohibition 
against any individual white as well as black 
being discriminated against in employment. It 
only seeks to insure that persons will be 
treated on their individual merits and in accor­
dance with their qualifications. . . ,180

In addition, Rep. Gerald R. Ford, who supported the 
substitute bill, indicated a belief that there was no 
necessity to amend the law to prohibit quotas. He said:

The Philadelphia plan, which is what we are 
really talking about, does not have anything to 
do with quotas. I honestly think that the 
gentleman from Pennsylvania is drawing a 
false issue by the kind of language that he is 
employing in his proposed amendment. I just 
do not think that we ought to interfere with

178 117 Cong. Rec. 31964, 31965.
179 Id. at 31963, 31964.
180 Id. at 31963.



44

thi s  pr o g r a m with this kind of 
amendment. . . .181

Thus, the members of the House who spoke on the 
Dent amendment believed that it was unnecessary. 
This legislative history confirms our interpretation of 
the meaning of Title VII.

The amendments to Title VII proposed in 1972 to 
prohibit quotas were redundant and unnecessary. The 
failure of Congress to pass the amendments is no more 
enlightening on the meaning of the statute than any 
other failure of Congress to act. As this Court stated in 
International Brotherhood of Teamsters v. United States,182 the 
only important Congressional views for purposes of 
statutory interpretation are those held in 1964. The 
Court said:

[T]he section of Title VII that we construe 
here, §703(h), was enacted in 1964, not 1972.
The views of members of a later Congress, 
concerning different sections of Title VII, 
enacted after this litigation was commenced, 
are entitled to little if any weight. It is the in­
tent of the Congress that enacted §703(h) in 
1964, unmistakable in this case, that con­
trols.183

181 Id. at 32091.
182 431 U.S. 324, 97 S.Ct. 1843 (1977).
183 id. at 354 n. 39, 97 S.Ct. at 1864 n. 39.



45

Thus, the failure of Congress to pass the 1972 anti­
quota measures does not mean that Title VII in 1964 
was meant to permit quotas detrimental to whites.184

The reliance of Kaiser and the Government on the 
1972 legislative history of the amendments to Title VII 
is an admission that the statute means what it says. If 
these parties could find any suggestion in the language 
of Title VII or the 1964 legislative history that quotas 
preferential to minority workers are valid, they would 
never have relied on a theory of intent divined from ac­
tions not taken in 1972. Therefore, Title VII prohibits 
an employer from granting a preference to minority 
workers in order to achieve a desired minority ratio in 
designated jobs.

184 Even if the non-actions of Congress that are not taken after 
the passage of a biil could change the apparent meaning of the law, 
the 1972 non-actions of Congress are not the most recent in­
stance of a Congressional failure to act. In 1978, Congress con­
sidered anti-quota provisions in connection with an ap­
propriations bill. 124 Cong. Rec. H5371 (daily ed., June 13, 1978). 
See Brief of the American Civil Liberties Union and the Society of 
American Law Teachers Board of Governors Amici Curiae 90-95. 
Congress did not pass these amendments as they were deleted in a 
House-Senate conference. Report No. 95-1746, 95th Cong., 2d 
Sess., 25 (Oct. 6,1978). However, both houses of Congress voted 
in favor of the anti-quota amendments. The House passed the 
amendment 232-177. 124 Cong. Rec. H5379 (daily ed., June 13, 
1978). The Senate passed the amendment on a voice vote. 124 
Cong. Rec. 16280. These recent votes of Congress in not taking 
any action are just as persuasive in demonstrating an anti-quota 
intent as the failure to act in 1972.



46

B. The Analogous Constitutional Decisions of the 
Court Establish that the 50 Per Cent Racial Quota 
Would Not Be Upheld if It Were Imposed By the 
Government.

This case arises under Title VII.185 No claim for relief 
based on the constitution is presented.186 Therefore, 
unlike the decision in Regents of the University of California v. 
Bakke,187 the Court is not presented with parallel 
statutory and constitutional claims and it should be un­
necessary to determine whether the reach of the 
statutory no-discrimination requirement equals or ex­
ceeds the constitutional prohibition of dis­
crimination.188 However, the race cases decided by this

185 The suit was also brought pursuant to 42 U.S.C. §1981. 
App., 13. However, reliance on 42 U.S.C. §1981 is unnecessary 
and the district court and court of appeal did not base their 
decisions on this statute.
186 A theoretical constitutional issue could arise if the Court 
determined that Congress in Title VII, or by its subsequent failure 
to enact amendments toTitle VII, authorized the executive branch 
to require the imposition of racial preferences. However, this case 
does not involve a government-imposed quota, even though the 
regulations and requirements of the OFCC were a motivating 
force in the decision of Kaiser and USWA to institute the 50 per 
cent quota.
187 .....  U.S......... . 98 S.Ct. 2733 (1978).
188 This case is also unlike B a k k e  in that the prohibition of race 
discrimination in Title VII applies to private parties, while in B a k k e  
the statutory claim was made under Title VI, which is applicable to 
public institutions receiving federal assistance. 42 U.S.C. §2000d 
(1976). The prohibition of race discrimination of Title VI parallels 
the constitutional prohibitions of race discrimination by the 
federal or state governments, U.S. Const. Amend. V, XIV, while 
the Title VII prohibition of discrimination by private parties is less 
analogous to the constitutional requirement.



47

Court under the constitution and the decision in Bakhe 
do provide analogous authority that the racial quota of 
Kaiser and USWA is illegal under Title VII.189

In Bakke, the Court invalidated a special medical 
school admissions program that reserved 16 per cent of 
the places in the entering class for members of minority 
groups. As white applicants were not permitted to 
compete for the seats reserved for minority applicants, 
the special admissions program was ruled illegal.190 
This decision provides support for the holding of the 
court of appeals because half of the openings in the 
craft training programs at the Gramercy plant were 
reserved for minority workers. White bidders with the 
requisite seniority had no opportunity to obtain entry 
into these positions.

The racial quota of Kaiser and USWA is more in­
vidious than the 16 per cent quota in Bakke because it 
robs non-minority workers of seniority rights accrued 
by years of service to Kaiser and USWA. No loss of an 
accrued right of white applicants was present in Bakke. 
Moreover, the First Amendment interest in furthering 
academic freedom by attaining a diverse student body, 
which tended to support the consideration of race in

189 See G en era l E lectric  Co. v. G ilb e r t , 429  U.S. 125, 133, 97 S.Ct. 
401, 407  (1976), where the Court held that decisions rendered 
pursuant to the Fourteenth Amendment provided a "useful start­
ing point" for Title VII analysis.
190 ____ U.S. a t _____ , 98 S.Ct. at 2764. (Powell, ]., announcing
the judgment of the Court.)



48

Bakke,191 is not present in this case. Furthermore, in 
Bakke the admissions program as a whole was not based 
solely on objective criteria.192 The consideration of 
many subjective factors may have made the considera­
tion of race less objectionable. In this case, on the other 
hand, the seniority criterion is not subjective: it 
provides benefits based on time in service to the 
employer, applies equally in the absence of discrimina­
tion in the provision of seniority rights, and is valid un­
der Title VII.193 Thus, the discriminatory program of 
Kaiser and USWA is more objectionable than the ad­
missions program in Bakke.

The 50 per cent quota would also be invalid under the 
equal protection standard ordinarily implemented in 
race cases by this Court. Race is a suspect 
classification194 and race discrimination is subjected to 
the closest judicial scrutiny.195 Under the strict 
scrutiny analysis, a classification imposed by the 
Government must serve a compelling or necessary 
governmental interest and must be carefully tailored to

191 Id. a t ___ , 98 S.Ct. at 2760-64 (Powell, ].).
192 See, e.g., Id. a t____, 98 S.Ct. at 2740 (Powell, ].); 98 S.Ct. at
2807 (Blackmun, ]., dissenting).

193 42 U.S.C. §2000e-2(h) (1976).
194 Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193 (1944).
195 Loving v. Virginia, 388 U.S. 1 , 11, 87 S.Ct. 1817,1823 (1967).



49

achieve this goal.196 The justifications offered for the 
50 per cent quota in this case could not meet this stan­
dard.

Although Kaiser and the Government fear to admit 
it,197 the primary purpose for the racial quota was to 
achieve the same minority ratio in craft jobs at the 
Gramercy plant as the percentage of minority workers 
in the local labor force. The one-for-one selection 
criterion was imposed 'To achieve a desired minority 
ratio."198 The "desired minority ratio" in this case was 
the 39 per cent minority ratio in the local labor force.199 
Once this goal is reached, Kaiser "will then revert to a 
ratio of what that percentage is"200 in order to maintain 
the "desired minority ratio" in the crafts indefinitely.

196 Compare Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 
1322, 1333 (1969) ("compelling interest" test) with Regents of the
University of California v. Bakke,____U .S.____ , ___ , 98 S.Ct. 2733,
2756-57 (1978) (Powell, J.). See the dissenting opinion of Brennan, 
]., with whom Marshall, ]., joined, in Kahn v. Shevin, 416 U.S. 351, 
357-58, 94 S.Ct. 1734, 1738 (1974):

"[SJuspect classifications can be sustained only when the 
state bears the burden of demonstrating that the 
challenged legislation serves overriding or compelling in­
terests that cannot be achieved either by a more carefully 
tailored legislative classification or by the use of feasible, 
less drastic means.

197 USWA, at least, admits that the motivation for implement­
ing the racial quota was not past discrimination. The racial quota 
was designed to increase the ratio of minority workers in craft 
jobs.
198 This is the reason for the implementation of the racial quota 
stated in the 1974 Labor Agreement between Kaiser and USWA 
App., 137.
199 App., 60.
200 App., 69.



50

However, the goal of achieving a desired ratio of any 
race in designated jobs would not be constitutionally 
permissible. As the opinion of Mr. justice Powell stated 
in Bakke:

If petitioner's purpose is to assure within its 
student body some specified percentage of a 
particular group merely because of its race or 
ethnic origin, such a preferential purpose 
must be rejected not as insubstantial but as 
facially invalid. Preferring members of any 
one group for no reason other than race or 
ethnic origin is discrimination for its own 
sake. This the Constitution forbids.201

In their attempts to circumvent the real purpose of 
the 50 per cent quota, Kaiser and the Government 
characterize it as a purported "remedy" for past dis­
crimination.202 These parties assert that, had Kaiser 
undertaken an analysis of whether a prima facie 
statistical case for a Title VII claim could have been 
made out by a minority plaintiff for the Gramercy 
plant, Kaiser "[c]ould [reasonably [bjelieve"203 that a 
prima facie case existed. Of course, no such analysis

201 Regents of the University of California v. Bakke, ____ U S ____
------, 98 S.Ct. 2733, 2757 (1978) (Powell, ].).
202 E.g,, Brief of Kaiser at 46-49; Brief of the Government at 42- 
54.
203 Brief of the Government at 42.



51

was made.204 In any event, even if the goal of correcting 
past discrimination were the reason for the racial 
quota,205 206 the means employed to achieve the goal in 
this case are virtually unrelated to the goal.

A true "remedy" granted to an individual must be 
designed to correct past discrimination against the in­
dividual: "it is the individual who is entitled to judicial 
protection against classifications based upon his racial 
or ethnic background because such distinctions im­
pinge upon personal rights. . . A208 In this case, 
however, none of the parties preferred under the racial 
quota were subjected to past discrimination by 
Kaiser.207 As the Government concedes, "[i]t is true, of 
course, that the blacks selected for the training 
program had not been identified as victims of prior dis­
crimination at the Gramercy plant."208 Thus, the class- 
based preference of Kaiser and USWA was not only im­
precisely tailored, it was largely unrelated to the pur­

204 As USWA states in its brief, "[tjhe program was negotiated 
without regard to specific conditions at any one plant, and certain­
ly was not based on an assessment of the particulars of the situa­
tion at the Gramercy plant." Brief of USWA at 5.
205 We do not question that this goal would be an important or 
compelling goal if the remedy were for discrimination against 
identified individuals.
206 Regents of the University of California v. Bakke, ____U.S. ____ ,
------, 98 S.Ct. 2733, 2753 (1978) (Powell, J.),
207 The district court found that "none of its black employees 
who were offered on-the-job training opportunities over more 
senior white employees . . . had been the subject of any prior 
employment discrimination by Kaiser." 415 F.Supp. at 764.
208 Brief of the Government at 52.



52

ported goal of remedying any actual past dis­
crimination.209 210 211 212

Kaiser and the Government recognize that the racial 
quota is not designed as a remedy for discrimination 
against individuals. Therefore, they argue that it would 
be too difficult to enact individual remedies.230 This 
argument in essence is based on administrative con­
venience; the "zone of reasonableness"231 standard 
would make it administratively easier to correct for 
assumed past disparities. Administrative convenience, 
however, cannot justify a policy that discriminates on 
the basis of race.232 If Kaiser and USWA wish to 
provide remedies to victims of past discrimination by

209 The sole basis for the purported remedial purpose is an 
assumption or stereotype about individuals because of their 
membership in particular racial groups. These assumptions in 
general may have validity. However, assumptions about the 
preferred individuals could not justify overt discrimination 
against others. In addition, preferences based on assumptions 
necessarily could not be tailored to correct only for the actual 
amount of past discrimination.
210 Brief of the Government at 38-39. Brief of Kaiser at 30-31, 
44 et seq.
211 Brief of Kaiser at 45.
212 See the dissenting opinions of the justices who viewed sex as 
a suspect classification in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734 
(1974). Mr. Justice Brennan, who was joined by Mr. Justice 
Marshall, believed that a statute providing a property tax exemp­
tion to widows was not tailored carefully enough to satisfy the ap­
propriate judicial scrutiny. “The statute nevertheless fails to 
satisfy the requirements of equal protection, since the State has 
not borne its burden of proving that its compelling interest could 
not be achieved by a more precisely tailored statute or by use of 
feasible, less drastic means." 416 U.S. at 360, 94 S.Ct. at 1740. Mr.



53

granting preferences that are harmful to whites, the 
remedies must be properly tailored to achieve the end 
without unnecessary damage to the rights of innocent 
employees.

The 50 per cent racial quota would not be valid under 
the analagous constitutional decisions of this Court. 
Therefore, it should be invalidated under Title VII.

II. The Purported Justifications Offered By 
Kaiser, USWA And The Government For 
The 50 Per Cent Quota Are Insufficient 
To Validate The Policy Of Open Dis­
crimination Against White Workers.

The 50 per cent quota of Kaiser and USWA is a dis­
criminatory policy that disadvantages a white 
employee for each minority worker who is preferred. 
This policy violates Title VII. The asserted 
justifications for the racial quota are not sufficient to 
justify a discriminatory racial practice. Therefore, the 
50 per cent quota should be held invalid.

justice White also found that the statute was inappropriately 
tailored. He said:

I perceive no purpose served by the exemption other 
than to alleviate current economic necessity, but the 
State extends the exemption to widows who do not need 
the help and denies it to widowers who do. It may be 
administratively inconvenient to make individual deter­
minations of entitlement and to extend the exemption to 
needy men as well as needy women, but administrative 
efficiency is not an adequate justification for discrimina­
tions based purely on sex. (Citations omitted).

416 U.S. at 361, 94 S.Ct. at 1740.



54

A.. The 50  Per Cent Quota Was Not a Remedial 
Measure and Could Not Be Upheld in Any Event 
Because It Was Not Restricted to Individual Vic­
tims of Past Discrimination.

The Government in effect concedes that the 50 per 
cent quota is invalid to the extent that it serves the ac­
tual purpose for which it was implemented, the 
achievement of a desired ratio of minority workers in 
craft jobs. Unlike USWA,213 the Government attempts 
to avoid the issue in this case by characterizing the facts 
as if Kaiser had "identified" past discrimination at the 
Gramercy plant.214 The Government apparently feels 
free to ignore the record and engage in gratuitous 
s p e c u la t io n  and se lf-serving , a f te r - th e -fa c t  
rationalizations concerning the racial quota because of 
the alleged "limited"215 inquiry at the trial. Kaiser does 
not fully resort to this approach, but does assert that 
"identified discrimination" by society, causing a "clear­
ly defined deprivation," was a motivation for the 50 per 
cent quota.216

213 USWA does face up to the issue, but its strained interpreta­
tion of the legislative history of Title VII does not validate dis­
criminatory racial preferences. See discussion in Part 11(B) infra.
214 Brief of the Government at 42 et seq.
215 Brief of the Government at 43. The Government also states: 
"[T]he record does not establish in detail the factual basis for 
Kaiser's concerns."
216 Brief of Kaiser at 46, 47.



55

Contrary to the overt or implied assertions of these 
parties,217 the record does establish the reasons for the 
adoption of the racial quota and they do not include an 
intent to remedy any specific past discrimination. 
Moreover, notwithstanding the purported "evidence" 
offered in this Court from outside the record by the 
Government, past employment discrimination had not 
occurred at the Gramercy plant and a prima facie 
statistical case could not have been made out concern­
ing the craft positions. Furthermore, as all the parties 
concede, the individuals preferred under the 50 per 
cent quota were not subjected to past discrimination by 
Kaiser. A racial preference would be valid only to the 
extent that it corrected on an individual basis for past 
race discrimination. Therefore, the contentions of 
Kaiser and the Government should be rejected.

217 Id. We have already reviewed, in our Brief for Respondents 
in Opposition to the Petitions for Writs of Certiorari, the interest 
in this case shown by the EEOC and our efforts to keep the EEOC 
informed of events occurring prior to, at, and after the trial. Brief 
of Respondents in Opposition to the Petitions for Writs of Cer­
tiorari at 5-6. The EEOC contacted counsel for each party and 
appears to have apprised itself of the potential role it could play in 
achieving a not "limited" record. The EEOC declined to appear at 
the trial and instead apparently chose to adopt its current role on 
appeal of speculating as to what the proof might have been.

In addition to our efforts to keep the EEOC informed of 
developments at the trial level, the district court required the post­
ing of the class notices in this case, containing a description of the 
litigation, on all employee bulletin boards at the Gramercy plant 
and at the union hall of USWA. App., 24-25. It is unlikely that any 
minority employees were unaware of this case or its potential 
effect on them, yet none intervened to offer any evidence.



56

1. The reasons for the racial quota are fully 
established in the record.

A complete inquiry into the reasons for the establish­
ment of the racial quota was conducted at the trial. 
Kaiser presented its director of equal opportunity af­
fairs for the entire Kaiser corporation,218 Thomas M. 
Bowdle. Mr. Bowdle indicated that the reasons for the 
adoption of the racial quota were the low percentage of 
minority workers in the c r a f t s , 21? suggestions made by 
officials of the OFCC as to this low utilization,22° and a 
desire to make up for assumed past discrimination 
against minorities by society at large.221 Mr. Bowdle 
knew of "no specific evidence of discrimination at the 
Gramercy plant."222 The racial quota was not im­
plemented to correct for past discrimination by 
Kaiser.223 Mr. Bowdle stated:

Q. Mr. Bouble (sic), you have referred, 
during the course of your testimony, to the 
present effects of past discrimination. Do I un­
derstand you to indicate that these employees 
that are now being favored were dis­
criminated against by Kaiser?

A. No.224

218 App. 80.
219 App. 00-01.
220 App. 03.
221 App. 90, 04

222 App. 108.
223 App.. 0 0 .
224 App., oo.



57

The statements of Mr. Bowdle are direct, on-the- 
record denials of an intent of Kaiser to correct for any 
past discrimination by the company through the 50 per 
cent quota. These statements of the person most likely 
to have knowledge of the motivations of Kaiser should 
be more persuasive than after-the-fact rationalizations 
presented by the Government.225

1 he statements of Mr. Bowdle were supported by 
the testimony of Dennis E. English, the industrial 
relations superintendent at the Gramercy plant. He 
stated: "We do not think that we have discriminated in­
side our plant."226 In addition, the motivation of USWA 
for adopting the racial quota is stated in its brief. It says:

[The provision establishing the one-for-one 
quota was] the core of the national program 
established by Kaiser and USWA to increase 
the proportion of minorities in skilled craft 
positions at all of the Kaiser plants. The 
program was negotiated without regard to 
specific conditions at any one plant, and cer­
tainly was not based on an assessment of the

225 The Government asserts that "Kaiser and the Steel­
workers were in the awkward position of seeking to defend their 
training programs without admitting liability for previous dis­
crimination against blacks . . . ." Brief of the Government at 43. 
However, USWA did try to show past discrimination by Kaiser. 
Moreover, it is one thing to suggest that Kaiser and USWA had no 
incentive to admit past discrimination, and quite another to ad­
vance a theory that carries the implied assertion that Mr. Bowdle's 
specific denials of any motivation to cure past discrimination by 
Kaiser were misrepresentations.
226 App., 81.



58

particulars of the situation at the Gramercy 
plant.227 228 229

Furthermore, the 1974 Labor Agreement specifically 
states the reason for the 50 per cent quota. It says that 
the purpose of the 'goals and time tables" is "to achieve 
a desired minority ratio."22* Thus, the racial quota was 
implemented to accomplish the statistical objective of a 
minority ratio equal to the percentage of minority 
workers in the local labor force. It was not motivated by 
speculation concerning the possibility of past dis­
crimination by Kaiser.

2. Persuasive evidence of past discrimina­
tion by Kaiser could not have been 
presented at the trial because it does not 
exist.

The Government in effect concedes that the racial 
quota is invalid under the factual determinations of no 
discrimination of the district court and court of appeals. 
Rather than facing the issue presented here, the 
Government relies on an elaborate and inaccurate 
scenario in which Kaiser is represented as fearful of be­
ing found liable for Title VII violations at the Gramercy 
plant.220 While not fully adopting this posture, Kaiser

227 Brief of USWA at 5,
228 App„ 137.
229 Brief of the Government at 42 et seq. This position is also a 
virtual concession of the invalidity of the regulations of the OFCC 
as approved by the EEOC, which require preferences for minority 
workers whenever "underutilization" is found to exist, regardless 
of the reasons for the statistical disparity in the employment of



59

suggests that the existence of "identified discrimina­
tion" was established.230 The obvious belief of these 
parties that a racial preference is valid only to correct 
for identified past discrimination is a concession that 
the legal holding of the court of appeals is correct.231 In 
this case, moreover, there was no identified past dis­
crimination at the Gramercy plant. Thus, the decision 
of the court of appeals should be upheld.

Although the percentage of minority craftsmen at 
the Gramercy plant was far lower than the ratio of 
minority workers in the local labor force, it was not 
lower than the percentage of minority craftsmen with 
the requisite skills in the work force. The evidence es­
tablished that the percentage of minority craftsmen at 
the Gramercy plant was small "because of the un­
availability of trained, educated and qualified 
minorities."232 The percentage of available minority
minority workers. The EEOC publicly proclaims through its 
regulations that in order to grant “affirmative action" pref­
erences through the achievement of goals and timetables, "[i]t is 
not necessary thata self-analysis establish a violation of Title VII." 
29 C.F.R. §1608.4(b). In light of this public posture, it is hard to un­
derstand the necessity to imagine a scenario assertedly present­
ing a basis for a belief by Kaiser in the existence of past dis­
crimination at the Gramercy plant.
230 Brief of Kaiser at 46 et seq.
231 The Government makes a token argument that the racial 
quota is authorized under Executive Order 11246, Brief of the 
Government at 54 et seq., but retrieves the profferred issue by 
stating that there is "no need in this case to consider whether or to 
what extent, Title VII permits the Executive Order to authorize or 
require government contractors to undertake affirmative action 
measures that would be impermissible if undertaken by other 
employers. For the reasons we have shown, the Gramercy train­
ing programs were proper under Title VII wholly apart from the 
fact that Kaiser is a government contractor." Id. at 55.
232 App., 62.



60

craftsmen in the local labor force was no greater than 
the percentage of minority craftsmen employed by 
Kaiser.233 Kaiser was unable to locate and hire minority 
craftsmen despite affirmative action efforts, including 
the establishment of goals and timetables, advertising 
in New Orleans and Baton Rouge newspapers, adver­
tising in minority newspapers, maintenance of a 
minority craft file, and a policy to “always look for the 
blacks before the whites."234 A significant number of 
minority craftsmen were not found "because they 
aren't available."235 As the court of appeals stated, the 
low ratio of minority craftsmen at the Gramercy plant 
"reflects the general lack of skills among available 
blacks but does not reflect any unlawful practice by 
Kaiser."236

In an effort to suggest that this evidence is "subject 
to question,"237 the Government asks the Court to take 
judicial notice of census statistics purportedly showing 
a disparity between the ratio of black craftsmen at the 
Gramercy plant and available black craftsmen in the 
work force.238 In fact, Kaiser never considered any such 
alleged disparity in instituting the 50 per cent quota. 
Nevertheless, we welcome the discussion of the census

233 App., 76.
234 App., 62-63.
235 App., 63.
236 563 F.2d at 224 n. 13.
237 Brief of the Government at 44.
238 Brief of the Government at 44-46. These statistics are also
relied on by a number of parties appearing as amici curiae.



61

statistics239 because the Government in relying on 
them apparently admits that the disparity between the 
ratio of black craftsmen at the Gramercy plant and the 
percentage of minority workers in the general labor 
force would not prove a prima facie case in a Title VII 
suit involving the crafts.

In support of its claim that a statistical disparity ex­
isted between the ratio of minority craftsmen at Kaiser 
and the minority craftsmen in the local labor force, the 
Government relies on census statistics for "craftsmen 
and kindred workers" for the State of Louisiana.24° 
These statistics show that 15.7 per cent of the 
"craftsmen and kindred workers" were black.241 The 
Government is unable to provide any data by specific 
craft category for the Gramercy area, but assumes that 
the general data for craft and kindred workers for the 
entire state is illustrative of the availability of skilled 
craftsmen of the type required by Kaiser in the 
Gramercy area.242

The census data relied on by the Government could 
not be probative. As the Government admits but fails 
to discuss, its data does not reflect the statistics for

239 We have no objection to the Court taking judicial notice of 
any reliable evidence. We assume that the Court will not refuse to 
consider the census statistics. However, as we shall point out, 
these statistics could have virtually no probative value toward 
buttressing the argument of the Government.
240 Brief of the Government at 45.
241 Id.
242 Id.



62

skilled heavy industrial craftsmen, but instead reflects 
a general lumping together of craft and kindred workers. 
The general data for craft and kindred workers 
reported on the census includes such varied jobs as up­
holsterers, bakers, telephone linemen, locomotive 
engineers and printers.243 In addition, while census 
data may be useful in cases where the statistics reflect 
specific jobs, it would be impossible in this case to break 
out the craftsmen from the kindred workers.244 In­
deed, the questions asked in the census would not 
provide a basis for distinguishing skilled craftsmen 
from apprentices, helpers or other persons working in 
areas kindred to craft jobs.245 Moreover, as the 
Government concedes, the census does not break down 
the general categories of craft and kindred workers for 
the Gramercy area.246 Thus, the Government is not 
even able to provide specific categories for the Gramer­
cy area of its lumped-together data for craft and kin­

243 U.S. Bureau of the Census, Census of Population, Vol. 1: 
Characteristics of the Population, Part 20, Louisiana, Table 172.
244 The data is compiled from questions that permit only a 
genera! lumping of craft and kindred workers. The questions are: 
(a) "What kind of work was he doing?" (Examples of answers: "TV 
repairman, sewing machine operator, spray painter, civil engi­
neer, farm operator, farm hand, junior high English teacher"); (b) 
"What were his most important activities or duties?" (Examples of 
answers: "Types, keeps account books, files, sells cars, operates 
printing press, cleans buildings, finishes concrete"; (c) "What was 
his job title?" U.S. Bureau of the Census, 1970 Census of Popula­
tion; Vol. 1: Characteristics of the Population, Part 20, Louisiana, 
Appendix B, App. — 40.
245 See n. 244 supra.
246 Brief of the Government at 45 n. 21.



63

dred workers. The purported prima facie case that 
Kaiser could have worried about, had it realized the 
need to do so, would have been based on extrapolations 
from statewide data for "craft and kindred" workers.

In addition to being useless on its face to support a 
prima facie showing of past discrimination, the census 
data of the Government does not fare well when com­
pared with other statistics. For instance, in addition to 
its report on the census, the Government in another 
part of its brief provides more detailed and far different 
information regarding the availability of skilled 
craftsmen. It states:

In 1969, 58 percent of the nation's local craft 
unions reported to the Equal Employment 
Opportunity Commission that they had no 
black members; nationwide, the electricians 
unions were 1.9 percent black; the iron­
workers were 1.7 percent black; the plumbers 
0.8 percent black; and the sheet metal workers 
0.7 percent black.247

To believe both the census data and the EEOC data of­
fered by the Government, the Court would have to 
conclude that the availability of skilled craftsmen in 
Louisiana is about 1,200 per cent of the national

247 Id. at 59.



64

average.248 A basis for this conclusion has not been 
established.

The disparity between census data and a more 
detailed analysis relating to the crafts is exemplified by 
the litigation relating to the Philadelphia plan. In Con­
tractors Association of Eastern Pennsylvania v. Secretary of 
Labor,249 the district court stated that the Department 
of Labor found the minority representation in 1969 in 
six specified crafts to be "approximately one (l) per­
cent" although "the overall minority groups represen­
tation in the construction industry in the five-county 
Philadelphia area was thirty (30) percent . . . ."2so We 
doubt that the Government would question these 
figures. Nevertheless, the 1970 census reported the 
minority ratio of craftsmen and kindred workers for 
the Philadelphia area to be 11.2 per cent.251 If the 
relationship of actual to census figures for Philadelphia 
holds true for Louisiana, the availability of skilled 
craftsmen in Louisiana would be 1.4 per cent.252

248 The average of the reported percentages at pages 50-51 of 
the Brief of the Government is 1.275. The asserted availability of 
craftsmen in Louisiana is 15.7 per cent. Brief of the Government 
at 45.
249 311 F.Supp. 1002 (E.D. Pa., 1970).
250 Id. at 1005.
251 U.S. Bureau of the Census, 1970 Census of Population, Vol. 
1: Characteristics of the Population, Part 40, Philadelphia, Pa. — 
N.J., SMSA, Table 172.
252 1%  ̂ 1.4%

11.2% 15.7%.



The inflated nature of the census figures would not 
be surprising even if the data were collected in a reliable 
manner. As the United States Commission on Civil 
Rights reported in 1976, minority representation in the 
crafts is exaggerated even on EEO forms. It said:

The EEO-3 statistics include along with 
journeymen doing skilled construction work, 
several other categories of union members 
who perform less-skilled or nonconstruction 
work . . . .  These other categories are: (1) ap­
prentices; (2) union members — sometimes 
journeymen — who do not work in the con­
struction industry; (3) other workers, with 
titles such as helpers and tenders, who are 
neither apprentices nor journeymen.253

Thus, the data offered by the Government is not 
reliable.

Even if the Court were to rely on the census 
statistics, a close examination of this data tends to con­
firm the evidence in the record. The census report 
breaks out the general data for only a few of the craft 
categories employed by Kaiser. In addition, the census 
data does not distinguish heavy industrial skills from 
th o se  em ployed generally  by c ra ftsm e n .254

253 The Challenge Ahead, Equal Opportunity in Referral Un­
ions (U.S. Comm n. on Civ. Rts., May, 1976) at 40.
254 E.g., a skilled "general repairman" in heavy industry would 
be far different from the average general repairman reported on 
the census. A general repairman at Kaiser would install, repair, 
assemble and replace virtually all types of heavy industrial equip­
ment.

65



6 6

Nevertheless, in some of these categories the minority 
representation is very low, even for craft and kindred 
workers. For instance, the census indicates that only 
three per cent of the craft and kindred electricians were 
black.255 At least two craft categories at Kaiser required 
electrical skills.256 The census reported that less than 
4.5 per cent of those involved in “air conditioning, heat­
ing and refrigeration" work were black.257 One of the 
craft categories at Kaiser was air conditioner repair­
man.258 Most of the other census categories are 
generalized. While the Government represents the 
census as reporting that "blacks comprised . . . 10.4 
percent of the State's machinists,"259 this census cate­
gory actually includes "[m]achinists and job and dye 
setters."260 In one craft of Kaiser that is fairly repre­
sentative of a general craft category, carpenter- 
painter, Kaiser employed 16 per cent minority crafts­
men at the Gramercy plant.261

If Kaiser had ever thought to extrapolate a statistical 
argument from census data to support an imaginary 
Title VII claim against itself, it would not have feared 
that the analysis of the Government could constitute a

255 U.S. Bureau of the Census, 1970 Census of Population, Vol. 
1: Characteristics of the Population, Part 20, Louisiana, Table 172.
256 These were electrician and instrument and electrical repair­
man. App., 167.
257 Census Characteristics, supra n. 254, Louisiana, Table 172.
258 App., 167.
259 Brief of the Government at 45 n. 21.
260 Census Characteristics, supra n. 254, Louisiana, Table 172.
261 App., 167.



67

prima facie case. In any event, the census statistics are 
not the basis for the 50 per cent quota. Minority crafts­
men with the requisite skills were unavailable in the 
Gramercy area. The most persuasive evidence of this 
fact is the institution of the training programs. As Mr. 
Bowdle stated:

Q. Now, sir, on a pure economic basis, 
what would be the cheapest procedure, on a 
pure cost approach, for obtaining qualified 
craft employees at the various Kaiser plants?

A. Hire them off the street. If we had ade­
quate supply of craftsmen, candidates coming 
off the street, that would be the logical way 
for us to fill our craft jobs, rather than train, 
because training costs money.262

The only other purported evidence of past 
discrimination offered by the Government is the re­
quirement of Kaiser that craftsmen have prior in­
dustrial experience.263 This requirement may have 
been illegal, the Government speculates, because prior 
experience may not have been necessary to perform 
the craft jobs.264 However, the Government fails to 
recognize that prior experience is the essential require­
ment of being a craftsman.265 The National Appren­

262 App., 95.
263 Brief of the Government at 46-48.
264 Id. at 48 n. 23.
265 See The National Apprenticeship Program (U.S. Dept, of 
Labor, Employment and Training Admin., Rev. 1976).



68

ticeship Program of the Department of Labor 
recognizes that craft occupations are “learned through 
experience and training on the job, supplemented by 
related technical instruction."266 The prior experience 
requirement on its face was job related and the district 
court implicitly found this requirement to be a busi­
ness necessity.267 The position of the Government can 
be likened to questioning the requirements that 
lawyers have a law degree and pass the bar exam or that 
doctors have a medical degree.268 Even Judge Wisdom, 
in asserting that "the requirement of any training for 
some craft jobs may be illegal," recognized that "this 
claim would be the most easily refuted by an employer 
. . . ."269 Moreover, this assertion of the Government is 
ironic in this case, where the Government seeks to ob­
tain entry for minority workers on a disproportionate 
basis into training programs designed to provide the 
requisite experience. If no experience is necessary, 
minority workers do not need to enter training 
programs under a discriminatory quota. Furthermore, 
the evidence establishes that the prior experience re­
quirement was not the reason for the adoption of the 
racial quota. Thus, this requirement did not provide the

266 Id. at 10.
267 This finding is implicit in the factual finding of no past dis­
crimination. 415 F.Supp. at 764. As Judge Wisdom stated: "The 
judge simply accepted the statement that prior experience was a 
business necessity . . . 563 F.2d at 232.
268 Relatively fewer minority group members than non­
minority members possess these qualifications.
269 563 F.2d at 232.



69

basis for any asserted reasonable belief in potential Ti­
tle VII liability.270

The Government also makes a token argument that 
a prima facie case could be based on the disparity 
between the minority representation in the unskilled 
work force at the Gramercy plant and the minority 
ratio in the local labor force.271 This argument, 
however, is meritless in light of the consideration of 
these statistics by the district court and the finding that 
Kaiser had not discriminated in the past.272 In addition, 
although the Government suggests that the "best 
qualified" hiring policy employed prior to 1969 was 
potentially illegal under Title VII because of the cited 
statistical disparity, this disparity arose in large part 
prior to the passage of Title VII. The Gramercy plant 
opened in 1957 or 1958;273 the initial hiring by the com­
pany occurred at that time. In light of the 50-50 hiring 
ratio implemented at the gate since 1969, it is unlikely 
that any important disparity exists between the 
minority representation in the work force and the

270 The evidence indicated that, sometime prior to the institu­
tion of the 1974 training programs, Kaiser lowered the prior ex­
perience requirement for entry into craft jobs from five years to 
three years. App., 70. The difference in the five year and three 
year requirements apparently did not change the impact of the 
prior experience requirement on blacks because Kaiser was still 
unable to hire trained craftsmen from outside the plant. Only one 
black craftsman was hired from off the street in the years 1972-74. 
App., 167.
271 Brief of the Government at 43.
272 415 F.Supp. at 764.
273 App., 71.



70

minority hiring by Kaiser since the effective date of Ti­
tle VII.274 Thus, any statistical case of past dis­
crimination would be weak or nonexistent. The find­
ing of no discrimination by the district court is correct.

3. The 50 per cent quota is not legal as a 
remedy because none of the persons 
preferred under the quota were victims of 
past discrimination by Kaiser.

Although the Government insists on imagining the 
asserted prima facie cases that Kaiser might have 
feared had it thought to do so, the Government does 
not claim that the 50 per cent quota could have been de­
signed to provide individual remedies to minority

274 See Hazelwood School District v. United States, 433 U.S. 299, 97 
S.Ct. 2736 (1977), where the Court held that the important 
statistical evidence relates to hiring practices after the effective 
date of Title VII. The Court said:

The Court of Appeals totally disregarded the possibili­
ty that this prima facie statistical proof in the record 
might at the trial court level be rebutted by statistics deal­
ing with Hazelwood's hiring after it became subject to Ti­
tle VII. Racial discrimination by public employers was not 
made illegal under Title VII until March 24, 1972. A 
public employer who from that date forward made all its 
employment decisions in a wholly nondiscriminatory 
way would not violate Title VII even if it had formerly 
maintained an all-white work force by purposefully 
excluding Negroes. For this reason, the Court cautioned 
in the Teamsters opinion that once a prima facie case has 
been established by statistical work force disparities, the 
employer must be given an opportunity to show “that the 
claimed discriminatory pattern is a product of pre-Act 
hiring rather than unlawful post-Act discrimination." 
(Citation omitted).

Id. at 309-10, 97 S.Ct. at 2742-43.



71

workers for past discrimination. The Government con­
cedes that "the blacks selected for the training program 
had not been identified as victims of prior discrimina­
tion at the Gramercy plant."275 This admission is con­
sistent with the findings of the district court and court 
of appeals that "none of [the] black employees who 
were offered on-the-job training opportunities over 
more senior white employees pursuant to the 1974 
Labor Agreement had been the subject of any prior 
employment discrimination by Kaiser."276

Whatever might be shown by the statistics relating 
to the Gramercy plant, the minority workers preferred 
under the 50 per cent quota were hired by Kaiser. They 
were accorded all the benefits granted to unskilled 
white workers. Their seniority status in bidding for 
training opportunities was based on the date of hire.277 
The seniority system at Kaiser did not discriminate on 
the basis of race.278 Thus, these employees had not 
been victimized by past employment discrimination by 
Kaiser.279

275 Brief of the Government at 52.
276 415 F.Supp. at 764; 563 F.2d at 224. This point does not 
appear to have been questioned in the dissent of Judge Wisdom. 
See 563 F.2d at 235-36.
277 App., 72.
278 App., 72.
279 The Government asserts in a footnote that these employees 
were "potential" victims of discrimination because they had no 
prior craft experience and could not apply for craft jobs. This argu­
ment assumes that no experience requirement for craft jobs was 
necessary. Unskilled laborers, under the theory of the Govern­
ment, should have been placed directly into dangerous and com­
plex jobs involving high electrical voltage, complex machinery and



72

The decisions of this Court establish that "remedial" 
preferences are valid only to the extent that they cor­
rect for past illegal discrimination.280 In addition, even 
these remedies must be adjusted so as not to unduly up­
set "the legitimate expectations of other employees in­
nocent of any wrongdoing."281 In International Brotherhood 
of Teamsters v. United States,282 the Court held that Title 
VII remedies should be accorded only to individuals 
who had been victims of past discrimination; the 
Government's theory that a remedy is sufficient if it 
has "a fair degree of specificity" was rejected.283 The 
Court held:

While it may be true that many of the non­
applicant employees desired and would have 
applied for linedriver jobs but for their 
knowledge of the company's policy of dis­
crimination, the Government must carry its 
burden of proof, with respect to each specific 
individual, at the remedial hearings to be con­
ducted by the District Court on remand.284

instrumentation, industrial chemicals and sophisticated 
tolerances and calibrations. In addition, the "potential" victim 
theory ignores the fact that the white workers at the plant who 
were disadvantaged by the racial quota were also prevented from 
applying for craft jobs by the prior experience requirement. The 
"potential" victim theory is a far cry from the test adopted by the 
Court in International Brotherhood of Teamsters v. United States, 431 U.S. 
324, 362 et seq., 97 S.Ct. 1843, 1868 et seq. (1977).
280 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 
97 S.Ct. 1843 (1977).
281 Id. at 372, 97 S.Ct. at 1873.
282 431 U.S. 324, 97 S.Ct. 1843 (1977).
283 Id. at 368, 97 S.Ct. at 1871.
284 Id. at 371, 97 S.Ct. at 1873.



73
The Court specifically required that, to fashion a 
remedy, the district court identify the "actual victims of 
the company's discriminatory practices."285 The 
equitable power of the district court apparently was 
held to encompass returning identified victims of dis­
crimination to their "rightful place,"286 but only after a 
balancing of the remedy with the legitimate interests of 
innocent employees.287

The holding in the International Brotherhood of Teamsters 
case is supported by the decision of the Court in Franks 
v. Bowman Transportation Co.288 In Franks the Court held 
that seniority relief could be provided to "identifiable 
victims of racial discrimination. . . ,"289 The applicable 
principle in fashioning a remedy is to require that 
" 'persons aggrieved by the consequences and effects of 
the unlawful employment practice be, so far as possi­
ble, restored to a position where they would have been 
were it not for the unlawful discrimination.' " 29° The 
Court did not approve class "remedies" based on 
race.291

285 Id. at 371-72, 97 S.Ct. at 1873.
286 Id. at 372, 97 S.Ct. at 1873.
287 Id.
288 424 U.S. 747, 96 S.Ct. 1251 (1976).
289 Id. at 774, 96 S.Ct. at 1269.
290 Id. at 764, 96 S.Ct. at 1264.
291 See also the statement of Mr. justice Powell in Regents of the
University of California v. Bakke,____U.S. ___ , ____, 98 S.Ct. 2733,
2755 (1978); "But we have never approved preferential 
classifications in the absence of proven constitutional or stat­
utory violations."



74

The decisions limiting remedies to individual victims 
of past discrimination are sound. The purpose of the 
prohibition against race discrimination is to protect in­
dividuals from the effects of stereotyped attitudes and 
prejudices about racial groups. Indeed, the purpose of 
Title VII was to "give people the opportunity to be hired 
on the basis of merit. . . ,"292 293 In addition, a preference 
favorable to a class may have a tenuous relationship to 
assumed past discrimination, but this factor is out­
weighed by the known and overt discrimination 
against those disadvantaged by the preference. 
Furthermore, in the absence of past discrimination 
against an individual, a racial preference in favor of that 
individual is itself a violation of Title VII. Therefore, 
the racial quota is invalid because it does not remedy 
any prior discrimination against the preferred minority 
employees.

Because the racial quota is not limited to individual 
victims of past discrimination, it is not an " [a p ­
p ro p r ia te "^  or "[reasonable"294 remedy for "the 
[plroblem"295 as claimed by Kaiser and the Govern­
ment. A class-wide program of preferences does not 
necessarily remedy any past discrimination against in­
dividuals. The administrative inconvenience of iden­
tifying individual victims of discrimination does not

292 110 Cong. Rec. at 6549.
293 Brief of the Government at 48.
294 Brief of Kaiser at 51.
295 Id.



75

justify broad racial preferences that disadvantage inno­
cent employees.296 Class preferences do not insulate 
employers from Title VII actions brought by actual vic­
tims of past discrimination. These parties may sue even 
if "remedial" preferences have been granted to others 
of their race. Thus, the racial quota is not reasonable.

Nor is the racial selection criterion valid because, un­
der the training programs, whites "gained an oppor­
tunity to qualify as craft workers."297 Regardless of the 
new opportunities provided under the training 
programs, unequal treatment in these programs is ex­
pressly prohibited by Section 703(d) of Title VII.298 Dis­
crimination against minority workers in training 
programs would not be valid simply because some of 
them got new opportunities. Therefore, discrimination 
against whites should not be permitted on this ground.

No past discrimination existed at the Gramercy 
plant. The 50 per cent quota is not remedial. The dis­
crimination against white workers is not justified. 
Therefore, the racial quota is invalid.

296 In International Brotherhood of Teamsters v. United States, 431 U.S. 
324, 371, 97 S.Ct., 1843,1873 (1977), the Court required the iden­
tification of individual victims as a prerequisite to the issuance of 
remedies, although it noted that "[t]he task . . .will not be a simple 
one."
297  Brief of Kaiser at 58.

298 42 U.S.C. §2000e-2(d) (1976).



B. The Legislative History of Title VII Does Not Sup­
port the Inference of USWA that Racial 
Preferences for Minorities Are Allowed, Though 
Not Required, Under the Statute.

USWA recognizes that the 50 per cent quota was not 
instituted to correct for past discrimination, but in­
stead was intended to achieve a desired minority ratio 
in the crafts. The union faces up to the issue in this 
case: whether a racial preference for minority workers 
may voluntarily be instituted by private parties. 
However, the legislative argument offered by USWA 
in support of the theory that voluntary preferences for 
minorities may be implemented has no merit. This 
theory is inconsistent with the express language of the 
statute, contrary to the decisions of this Court, and in­
compatible with the legislative history.

The theory that quotas in favor of minority workers 
are permissible is based solely on inference. USWA 
finds numerous passages in the legislative history 
stating that employers may not be required to institute 
racial preferences to eliminate a racial imbalance.299 It 
infers, then, that racial preferences are permitted: "The 
natural inference is that an employer or union is per­
mitted to do so."300 However, there is no basis for this in­
ference.

Title VII makes it an unlawful employment practice 
to discriminate against any individual on the basis of race. 
Section 703(a)(1) of Title VII states that it shall be un­

76

299 Brief of USWA at 26-66.
300 Id. at 15.



lawful "to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against any in­
dividual with respect to his compensation, terms, con­
ditions, or privileges of employment, because of such 
individual's race. . . "soi Section 703(d) makes it un­
lawful "to discriminate against any individual because 
of his race . . .  in admission to, or employment in, any 
program established to provide apprenticeship or other 
training."301 302 A preference to minority workers em­
bodies discrimination against non-minority employees. 
This discrimination is expressly prohibited by the 
language of the statute, which controls over negative 
inferences drawn from the legislative history by 
USWA.

The inference of USWA is also invalid in light of the 
holdings of this Court. In Griggs v. Duke Power Co.,303 the 
Court made it clear that an inference may not be drawn 
from the statute that preferences for minority groups 
are permissible. It stated: "Discriminatory preference 
for any group, minority or majority, is precisely and 
only what Congress has proscribed."304 In McDonald v. 
Sante Fe Trail Transportation Co.,305 the Court held that 
"Title VII prohibits racial discrimination against the 
white petitioners in this case upon the same standards 
as would be applicable were they Negroes and [the 
allegedly preferred employee] white."306 As Title VII

301 42 U.S.C. §2000e-2(a)(l) ( l976).
302 42 U.S.C. §2000e-2(d) (1976).
303 401 U.S. 424, 91 S.Ct. 849 (1971).
304 Id. at 431, 91 S.Ct. at 853.
305 427 U.S. 273, 96 S.Ct. 2574 (1976).
306 Id. at 280, 96 S.Ct. at 2579.

77



78

would not permit a racial quota in favor of whites to 
achieve a desired racial ratio in craft jobs, no inference 
is permissible that a quota to achieve this goal may be 
used in favor of minority workers.

The inference of USWA is also contrary to the 
legislative history of Title VII. In its own brief USWA 
cites numerous instances of statements that racial 
quotas of any kind are discriminatory.307 For instance, 
Sens. Clark and Clifford P. Case, the bipartisan "cap­
tains" for Title VII,308 introduced an interpretive 
memorandum stating that "any deliberate attempt to 
maintain a racial balance, whatever such a balance may 
be, would involve a violation of Title VII because main­
taining such a balance would require an employer to 
hire or to refuse to hire on the basis of race."309 Sen. 
Williams stated: "[T jo  hire a Negro solely because he is 
a Negro is racial discrimination, just as much as a 'white 
only' employment policy."310 The argument of USWA, 
based solely on inference, cannot overcome specific 
statements of legislative intent.311 Therefore, the 
theory of USWA should be rejected.

307 E.g., Brief of USWA at 43, 43-44, 52.
308 Id. at 41.
309 Id. at 43; 110 Cong. Rec. at 7213.
310 Id. at 52, 110 Cong. Rec. at 8921.
311 The distinction drawn by USWA between statements made 
prior to and after the introduction of Section 703(j) by Sen. 
Everett M. Kirksen is meritless. As USWA recognizes, Brief of 
USWA at 60, Sen. Humphrey stated that "ftjhis subsection does 
not represent any change in the substance of the title . . . ." 110 
Cong. Rec. at 12723.



79

C. The Discrimination Against White Workers Is 
Not Validated By Executive Order 11246 or the 
Affirmative Action Guidelines of the EEOC.

In a further attempt to support the racial quota for 
admission into training programs, Kaiser and the 
Government argue that this program is authorized un­
der Executive Order 11246 and the Government con­
tends that the racial quota is consistent with the affir­
mative action guidelines of the EEOC.312 However, 
these contentions are invalid because the 50 per cent 
quota nevertheless violates Title VII.

The court of appeals held that the racial quota could 
not be valid under Executive Order 11246 because it is 
invalid under Title VII. In the event of a conflict 
between a statute and an executive order, the statute 
prevails.313 The court of appeals stated:

Whether Kaiser has already met its affir­
mative action burden or not, we are unable to 
harmonize the more explicit language of sec­
tion 703(d), which specifically prohibits racial 
classification in admission to on-the-job train­
ing programs, with the affirmative action im­
posed here. If Executive Order 11246 man­
dates a racial quota for admission to on-the-

312 Brief of Kaiser at 30 et seq. Brief of the Government at 54 et 
seq ., 40-42.
313 Y ou n gstow n  Sheet &  T u b e  C o. v. S a w y er , 343 U.S. 579, 72 S.Ct. 
863 (1952).



80

job training by Kaiser, in the absence of any prior 
hiring or promotion discrimination, the executive 
order must fall before this direct con­
gressional prohibition.314

The Government has conceded this point, as it "ac- 
ceptfs] the premise that the Executive Order cannot 
override Title VII if the two conflict. . . ,"31S Kaiser 
does not question this principle.

In light of the concession that Title VII prevails in the 
event of a conflict with the executive order, the assert­
ed authorization of the racial quota by the executive 
order is irrelevant. The racial quota is valid under the 
statute or it is not. If it is a violation of Title VII, it can­
not be authorized by the executive order.316 In this 
case, the racial quota is invalid under Title VII because 
it discriminates against white workers on the basis of 
race.317

314 563 F.2d at 227.
315 Petition for a Writ of Certiorari in No. 78-436 at 16.
316 If the OFCC regulations are read to require the estab­
lishment of "goals" and "timetables" only when "underutiliza­
tion is found in designated jobs, and the utilization is determined 
solely on the basis of the available minority workers with the req­
uisite skills in the local labor force, it is doubtful that under­
utilization existed in this case. 41 C.F.R. 60-2.11. However, the 
regulations require the consideration of other factors in the 
utilization analysis. Id.
317 The reliance on authorities approving "affirmative action," 
such as Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 
442 F.2d 159 (3d Cir., 1975), cert, denied, 404 U.S. 854 (1971), and 
Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th Cir., 
1972), is misplaced. These cases on their face merely approve 
goals established pursuant to executive orders that were balanc-



8 1

The reliance of the Government on the affirmative 
action guidelines of the EEOC is also misplaced.318 The 
guidelines are not entitled to "great deference" under 
the standard set out in Skidmore v. Swift & Co.319 and ap­
proved in General Electric Co. v. Gilbert.320 The Court said:

We consider that the rulings, inter­
pretations and opinions of the Administrator 
under this Act, while not controlling upon the 
courts by reason of their authority, do con­
stitute a body of experience and informed 
judgment to which courts and litigants may 
properly resort for guidance. The weight of 
such a judgment in a particular case will de­
pend on the thoroughness evident in its con­
sideration, the validity of its reasoning, its 
c o n s is te n c y  w ith  ea rlie r  and later 
pronouncements, and all those factors which

ed so as not to discriminate against whites. In Ogilvie, the court 
specifically held that the Ogilvie Plan did not "discriminate against 
white persons." Id. at 686. In the Contractors Association case, the 
federal order at issue precluded reverse discrimination. It stated: 

This commitment is not intended and shall not be used to 
discriminate against any qualified applicant or employee. 
Whenever it comes to the bidder's attention that the 
goals are being used in a discriminatory manner, he must 
report it to the Area Coordinator for the Office of Con­
tract Compliance of the U.S. Department of Labor in 
order that appropriate sanction proceedings may be in­
stituted.

442 F.2d at 164.
318 Brief of the Government at 40-42.
319 323 U.S. 134, 140, 65 S.Ct. 161, 164 (1944).
320 429 U.S. 125, 141-42, 97 S.Ct. 401, 411 (1976).



82

give it power to persuade, if lacking power to 
control.321

In this case, as in Gilbert, "[t]he EEOC guideline in ques­
tion does riot fare well under these standards."322 The 
guidelines were not issued until December 11,1978, or 
14 years after the passage of Title VII. Thus, they do 
not have the persuasiveness of a contemporaneous ad­
ministrative interpretation of the statute.323 
Moreover, to the extent that the guidelines authorize 
preferences to members of minority groups to 
eliminate racial imbalance, they are inconsistent with 
the express language of the statute and the decisions of 
this Court.324 325 In addition, the guidelines conflict with 
previous administrative decisions of the EEOC.323

321 323 U.S. 134, 140, 65 S.Ct. 161, 164.
322 429 U.S. at 142, 97 S.Ct. at 411.
323 Id.
324 42 U.S.C. §§2000e-2(a), 2000e-2(d); e.g., Grim v. Duke Power 
Co., 401 U.S. 424, 91 S.Ct. 849 (1971).
325 E.g., EEOC Decision No, 74-106 (1974), CCH Employment 
Practices Guide 11 6427 (In implementing affirmative action,
Irlespondent may not violate Section 703(j) of Title VII which 

proscribes preferential treatment.'"). EEOC Decision No. 75- 
268, CCH Employment Practices Guide 1! 6452 (1975) (Ex­
clusions of non-minority candidates "clearly run afoul of Section 
703(j) or the Act as well as Title VII's general concern with 
providing equal job opportunities to all on the basis of individual 
capabilities."). Both of these decisions cited and relied on Griggs v 
Duke Power Co., 401 U.S. 429 (1971) and Commonwealth of Pennsylvania 
v. O Neil, 5 EPD 11 7974 (3d Cir., 1972) affirmed in part, reversed 
in part on rehearing en hanc, 473 F,2d 1029 (3d Cir., 1973), where 
the Third C ircuit stated:

Opening the doors long shut to minorities is im­
perative, but in so doing we must be careful not to close 
them in the face of others, lest we abandon the basic prin- 
ciple of non-discrimination that sparked the effort to pry 
open these doors in the first place.

Id.



83

Finally, the guidelines were issued after the EEOC 
entered this litigation and were designed to counter the 
impact of "the Weber decision."326 They therefore could 
not be regarded as the interpretation of an objective 
party. Thus, the guidelines are entitled to little 
deference in this case.

D. A Policy Permitting the Advancement of Minority 
Workers at the Expense of Whites Could Have 
Adverse and Unmanageable Consequences.

The standards of review proposed by the petitioners 
for cases involving preferences to minorities would 
permit widespread employment discrimination in the 
United States. USWA would have the Court permit 
private parties to "voluntarily" establish preferences 
for minorities at any time to eliminate racial im­
balance.327 The Government advocates a standard that 
would permit reverse racial quotas in the event of "ap­
parent" past discrimination, but this test in practice re­
quires only that the percentage of minority workers 
employed in designated jobs be less than the percentage 
of minority employees in the local labor force.328 329 The 
percentage disparity, under the theory of the Govern­
ment, would be a prima facie case of past discrimination 
and would permit the enactment of race preferences.320

326 Supplementary Information, Guidelines on Affirmative Ac­
tion, CCH Employment Practices Guide 1  4011.11.
327 Brief of USWA at 14-23.
328 Brief of the Government at 35-42.
329 Id. at 40 et seq.



84

This theory is embodied in the OFCC regulations and 
the EEOC affirmative action guidelines.330 Kaiser 
suggests a "zone of reasonableness" standard that 
would permit racial preferences whenever the 
employer has reason to believe that society has dis­
criminated against a particular minority group.331 All 
of these standards have the benefit of advancing the 
economic standing of minority classes, but at the cost 
of damaging the employment expectations of innocent 
non-minority workers. If any of the proposed stan­
dards were adopted by the Court, the adverse conse­
quences could be severe.

The most important damage that would result from 
a policy to allow racial preferences is the harm to inno­
cent individuals.332 The white employees in this case 
acquired their seniority rights only after years of ser­
vice to Kaiser and membership in USWA. These parties 
are presumably innocent of any wrongdoing against 
blacks or other minority groups. Yet under each of the 
legal standards advocated by the petitioners, these in­
dividuals would bear virtually the entire cost of ad­
vancing minority groups. This result is ironic because 
the white employees who are asked to bear this cost are 
part of the unskilled labor force at Kaiser and occupy 
the same status as the preferred minority workers. The 
application of the 50 per cent quota does not eliminate

330 41 C.F.R. Part 60-2; 29 C.F.R. §1608.4.
331 Brief of Kaiser at 45, 39-42.
332 See Regents of the University of California v. Bakke,____U.S____
_ — , 98 S.Ct. 2733, 2753 (1978) (Powell, J.).



85

any economic disparity between these individuals, but 
instead advances the minority workers at the expense 
of the whites.

A policy to permit racial preferences to advance the 
economic standing of minority groups may also kindle 
racial prejudice.333 An individual who suffers the loss of 
seniority rights or employment opportunities solely on 
the ground of race will be hard pressed to avoid racial 
resentment. Economic deprivation is felt just as strong­
ly by non-minority employees as by minority workers. 
In this case, the evidence at the trial suggested that the 
50 per cent quota adversely affected the racial attitudes 
at the plant. Mr. Weber, who was familiar with the at­
titudes of workers at the plant because of his position 
as chairman of the union grievance committee,334 
stated that the "racial relations of the white workers 
toward their black counterparts, black employees at 
Kaiser, have progressively gotten worse because of the 
fact that they realize that the company and the Union 
have a program in effect which uses race to promote 
employees ahead of themselves/'335 This result is the 
natural effect of race discrimination that deprives 
employees of their economic expectations. A policy to 
permit race preferences can only foster racial dishar­
mony.

333 See United Jewish Organizations v. Carey, 430 U.S. 144, 9 7  S.Ct. 
996, 1014 (1977) (Brennan, ]., concurring).
334 App., 35.
335 App., 36.



8 6

The standards that would allow preferential quotas 
would also tend to enhance racial stereotypes. "[S]uch a 
policy may imply to some the recipients' inferiority and 
special need for p rotection ."336 Non-minority 
employees who observe the operation of a racial quota 
imposed under government regulations requiring 
preferences to minority classes may conclude that 
these groups are special wards of the government. Bas­
ed on the OFCC regulations and EEOC affirmative ac­
tion guidelines, this conclusion would appear 
warranted. White employees might also infer in­
correctly, however, that the government requirement 
of preferences is the only means by which minority in­
dividuals advance. Thus, a policy of preferential treat­
ment will carry the negative effect of stigmatizing 
minority workers by reinforcing attitudes that these 
employees are incapable of advancing on their own 
merit.

The reliance on the Government's statistical re­
quirements in the hiring or promotion of workers may 
diminish the incentive of workers to be productive.337 
The free enterprise system depends in part on en­
couraging employee productivity through incentives. 
Workers who produce a greater output than their peers 
traditionally could expect to be rewarded for their ef-

336 United Jewish Organizations v. Carey, 430 U.S. 144,174, 97 S.Ct. 
966, 1014 (1977) (Brennan, ]., concurring).
337 Note, Developments in the Law •— Employment Discrimination and Ti­
tle Vll of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1115 
(1971).



forts through increases in pay or promotions. In this 
case, advancement is not based strictly on individual 
achievement, but the seniority criterion does reward 
the worker for his length of service to the company. In­
centives based on length of service should also enhance 
productivity and efficiency. The denial of this job 
benefit, on the other hand, diminishes loyalty to the 
employer and the desire of the employee to perform his 
tasks efficiently. As Mr. Weber stated:

The quota system, again, has affected the 
attitudes of the workers towards productivity 
in a very bad way because of the fact that it 
takes away from the initiative of the in­
dividual employee to do more, to do one step 
further, to do all of his job in the best way he 
knows how, because he knows that even no 
matter how well he does it, he won't be able to 
be promoted, because of this 50 percent 
minority requirement of the company. So, 
thus, his attitude does affect productivity in a 
bad way.338

In addition, the disharmony fostered by racial 
classifications may tend to diminish the efficiency of 
workers.

The approval of policies to prefer minority workers 
may also produce reactions in society that are harmful 
and unmanageable. First, if government regulations

87

338 App., 37-38.



88

that disadvantage white workers on a broad scale are 
approved, this decision is almost certain to produce a 
political reaction. With their economic interests at 
stake, white employees could be expected to coalesce in 
a political movement designed to recapture equal 
employment opportunities. These employees con­
ceivably could exercise considerable political power. 
Politicians who rise to prominence as part of this move­
ment may take actions that in fact achieve more than 
equality for whites and cause concomitant harm to 
minorities.339 In addition, a political movement to bring 
equal opportunity to white workers is likely to damage 
the objectives of the equal rights movement by en­
couraging racial voting patterns and enhancing the im­
portance of racial issues in elections.

Second, the standards proposed by the petitioners 
may make it more difficult for the courts to protect 
minorities at some future time when their interests 
may not be protected by public officials. These stan­
dards would require the courts to permit racial 
classifications when the employer has a reasonable 
belief that there was past disparate treatment of a 
specific class. The operation of preferential programs 
will provide a documented history of disparate treat-

339 This prediction may involve speculation, but it is 
nevertheless possible. The current posture of the Government in 
effect is an overreaction in which the Government seeks to 
achieve more than equality for minority workers.



merit of white workers.340 Thus, employers and public 
officials would be permitted in the future to grant 
preferences to whites to "remedy" past discrimination. 
Moreover, because Kaiser and the Government 
propose the abandonment of any standard for the iden­
tification of victims of discrimination as a prerequisite 
for a "remedy," the disparate treatment of some whites 
could serve as a justification for the advancement of the 
entire class at the expense of minorities. This effect 
would not be desirable, yet it would be required under 
an even-handed application of the standards proposed 
by Kaiser and the Government.

Our society is best served by the principle of equality. 
This standard is accepted by the populace and capable 
of principled application. In addition, it preserves as 
fundamental the traditional focus on individual merit 
rather than race or class concepts. While it may appear 
attractive to depart from this principle in favor of tem­
porary inequality to achieve the statistical parity of all 
classes, this action could have adverse consequences. 
Therefore, the proposals of the petitioners should be 
rejected.

89

CONCLUSION

The 50 per cent quota of Kaiser and USWA dis­
criminates against non-minority employees. This

340 We know of no standards used by the Government in select­
ing the currently recognized minority groups. These groups hard­
ly encompass all classes that have suffered discrimination on 
grounds of race, color, religion or national origin. Moreover, as 
the designated classes, including females, are more than a majority 
of the population, white males could validly be deemed a "minority 
group."



employment discrimination is illegal under Title VII. 
The racial quota is not designed to correct for past dis­
crimination, but instead seeks generally to advance cer­
tain classes of workers because of assumptions about 
their past treatment by society. The request for the ap­
proval of preferential treatment of classes based on 
race, without reference to personal merit or seniority 
or previous individual history, is an approach that relies 
on the collectivized, stereotyped factors that Title VII 
and the equal protection clause instruct us to ignore. It 
may be attractive and arguably benign for government 
planners or corporation and union executives to decree 
a societal transformation through preferences based 
on race, but this new discrimination nonetheless has its 
own victims, no better off than the preferred class, who 
are called upon to endure the curtailment of opportuni­
ty, suffer the economic effects of discrimination, and 
stomach the elimination of merit as a ground of ad­
vancement. This result should not be approved by the 
Court.

The decision of the court of appeals should be af­
firmed.

90

Respectfully submitted,

Michael R. Fontham 
STONE, PIGMAN, 

WALTHER, WITTMANN 
& HUTCHINSON 

1000 Whitney Bank Building 
New Orleans, LA 70130 
Telephone: (504) 581-3200

Attorneys for Respondents