Weber v. Kaiser Aluminum & Chemical Corporation Petition for Rehearing and Suggestions of Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 76-3266

BRIAN F. WEBER, ET AL.,
Plaintiffs-Appellees,
v.

KAISER ALUMINUM & CHEMICAL CORPORATION and 
UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Defendants-Appellants,
UNITED STATES OF AMERICA and EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION (U.S.A.),

Intervenors-Appellants.

On Appeal from the United States District Court 
for the Eastern District of Louisiana

PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

ABNER W. SIBAL 
General Counsel 
Equal Employment
Opportunity Commission 

Washington, D. C. 20506

CARIN ANN CLAUSS 
Solicitor of Labor 
Department of Labor 
Washington, D. C. 20210

DREW S. DAYS, III 
Assistant Attorney General
GERALD J. GALLINGHOUSE 
United States Attorney
BRIAN K. LANDS3ERG 
ROBERT T. MOORE 
JOEL L. SELIG 
Attorneys
Department of Justice 
Washington, D. C. 20530



TABLE OF CONTENT'S
Page

TABLE OF AUTHORITIES-------------------------------  **
REQUIRED STATEMENT FOR REHEARING EN BANC ------------- 1
ARGUMENT --------------------------------------------  2

___________    nA. Introducti on ”
B. Exceptional Importance of Questions

Presented --------------------------------- 2
C. Conflict with Other Decisions ---------------- 9

CONCLUSION-----------------------------------------  14

APPENDIX A -----------------------------------------  A_1



TABLE CF AUTHORITIES

Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
Califano v. Webster, 430 U.S. 313 (1977) -------------
Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir.)

(en banc), cert, den ied, 406 U.S. 950 ( 1 972 )
Contractors Association of Eastern Pennsylvania v. 

Secretary of Labor, 442 F.2d 159 (3rd Cir.), 
cert, denied, 404 U.S. 354 (1971)

Florida Trailer and Eauipment Co. v. Deal, 2S4 F.2d 
56TTSth Cir. I960) - — ------- ---------------------

Franks v. Bowman Transportation Co.,
4~24 U.S. 747 ( 197 6) --------------------------------

International Srotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ------------------------

Kirksey v. Board of Superv-isors of Hinds County,
Mississippi, 554 F. 2d 139 (5th Cir. 1977) (an banc) , 
cert, deni a d_, 46 U.S.L.W. 3357 (U.S.
November 28, 1 977) -------- -------------------------

Morrow v. Crisle_r, 491 F. 2d 1053 ( 5th Cir.) (en banc) , 
cert, denied, 419' U.S. 895 (1974)

Page 
5, 10 
4

6

9,. 13

7, 3

11

14

14

7

2 , 3, 9,
13

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) ---
Fellicer v. Brotherhood of Ry. & S.S. Clerks,

2X7 F.2d 205 (5th Cir.‘1954), cert, denied,
349 U.S. 912 (1955) ---------------------------

Regents of the University of California v. Sa k k e, 
S~. Ct . No . 76-611, 46 U.S . L.W . 3 2 61 (U.S. 
October 17, 1977) -----------------------------

- ii -



United Jewish Organizations of Williamsburgh,
Page

Inc. v. Carey, 430 U.S. 1 44 ( 1 97?) ---------------  7
United States v. Alleghenv-Ludlum Industries,

Inc., 517 F.2d 826 (5th"cir. 1975),
cert, denied, 425 U.S. 944 ( 1 976) ----------------- 2 , 3, 4 , 11

United States v. City of Alexandria, et al.,
C. A. No. 77-2040 , Section "I", E.D. La. ----------  10, A-l

United States v. City of Jackson, Mississippi,
519 F.2d 1147 (5th Cir. 19 7 5) --------------------- 2, 4, 11

United States v. New Orleans Public Service, Inc.,
553 F.2d 459 (5th Cir.), reh *g denied,
559 F.2d 30 (5th Cir. 1977), pet. for
cert, pending, No. 77-497 ------------------------- 2, 8

United States v. Texas Education Agency, 467 F.2d
848 ( 5th Cir. 1 972) (en banc) --------- '----------- 7

Weber v. Kaiser Aluminum & Chemical Corp.,
563 F. 2d 216 (5th Cir. 1 977 ) ---------------------- passim

Statutes, Regulations and Orders:
Executive Order 11246, 30 Fed. Reg. 12319, as 
amended by Executive Order 11375, 32 Fed.
Reg. 14303 ------------------------------------- --- passim

Title VI of the Civil Rights Act of 1964, as 
amended, 4 2 U.S.C. 2G0 0d et sea. ---------

Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000e, et_ sec. --------
42 U.S.C. 2000e-2(a) ----------------------
42 U.S.C. 2G00e-2(d) ----------------------
42 U.S.C. 20U0e-5(f)(1) -------------------

Regulations of the Secretary of Labor'41 C.F.R. 60-1.1------- *-----------------
41 C.F.R. 60-1.4 .--------------------------
41 C.F.R. 60-1.40 -------------------------
41 C.F.R. Part 60-2 -----------------------

6

passim
8
1/- 3 
3
6
6
6
5, 7

iii



Miscellaneous:
Brief for the United States and the Equal_

Employment Opportunity Commission as Amicus 
Cur iae herein, filed February 12, 197/

Comment, The Philadelphia Plan: A Study in^
the Dynamics of Executive Power, 39 U. Chi.
L. Rev. 723 (1972) ----------------------------------

118 Cong. Rec. 1662-1676, 4917-4918 (1972) -----------
EEOC Proposed Guidelines Relating to Remedial and/or 
Affirmative Action Appropriate under Title VII 
of the Civil Rights Act of 1964, as amended,
42 Fed. Reg. 64326 (December '28, 1977 ) .-----------

Exhibit A to Motion of the United States and the 
Equal Employment Opportunity Commission to 
Intervene as Parties Appellant herein, filed 
December 1, 1977 ------------------------------------

Rule 35(a), Federal Rules of Appellate Procedure
SuDplemental 3rief for the United States as Amicus 

Curiae, Regents of the University of California v. 
BakkeT S~Ct. No. .76-811, filed November. 15 , 1 977 --



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 76-3266

BRIAN F. WEBER, et al.,
PI a int if fs-Appe Hants , 

v.
KAISER ALUMINUM & CHEMICAL CORPORATION and 
UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Defendants-Appel1ants,
UNITED STATES OF AMERICA and EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION (U.S.A.),

Inter venor s--Appellants.

On Appeal from the United States District Court 
for the Eastern District of Louisiana.

PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC



The United States of America and the Ecual Employment
J j

Oopoctunity Commission, intervenors-appellants, respectfully 
petition for rehearing and suggest rehearing <en banc of 
the decision entered in this case on November 17, 1977.

REQUIRED STATEMENT FOR REHEARING EN BANC 
(FIFTH CIRCUIT LOCAL RULE 12)

I express a belief, based on a reasoned and studied 
professional judgment, that this appeal involves two questions 
of exceptional importance: (1) whether an employer and a union
may, consistently with Title VII of the Civil Rights Act of 1964, 
voluntarily adopt, and incorporate into a collective bargaining 
agreement, goals and timetables for minority and female participation 
in on-the-job training, where there is no admission or binding of 
prior discrimination by the employer or union, and where the 
beneficiaries of such goals and timetables may not be identifiable 
victims of prior discrimination by the employer or the union, 
see 563 F.2d 216 at 223-224; and (2) whether Executive Order 11246, 
if it contemplates the adoption of such goals and timetables in 
such circumstances, "must fall before [the] direct congressional 
prohibition [of 42 U.S.C. 2000e-2(d)]," 563 F.2d at 227.

I express a belief, based on a reasoned and studied 

professional judgment, that the reasoning of the panel 
decision is contrary to the following decisions of the 
United States Court of Appeals for the Fifth Circuit, and

1/ The United States and the EEOC previously participated 
in’ this apoeal as amici cur iae, filing a joint principal brie 
February 12, 1977, and a joint supplemental brief April 27, 1!*//.
On December 5, 1977 , the Court granted our December 1, 1-7 / motion 
to intervene as parties appellant in order to seek further appellate 
review, and enlarged the time for petitioning ~oc repeating o 
January 15, 1578.



2
that consideration by the full Court is necessary to
secure and maintain uniformity of decisions in this 
Court: Morrow v. Crisler, 491 F.2d 1053 (en banc),
cert, denied, 419 U.S. 395 (1974); NAACP v. Mien,
493 F.2d 614 (1974) . United States v. Allegheny-Ludlum 
Industries, Inc., 517 F.2d 326 (1975), cert, denied,
425 U.S. 944 (1976); United States v. City of Jackson,

Mississippi, 519 F.2d 1147 (1975).
ARGUMENT

A. Introduction
This case involves the question of ohe lawful­

ness of an affirmative action program which was voluntarily 
adopted and incorporated into a collective bargaining agreement 
by Kaiser and the United Steelworkers for the purpose, inter 
alia, of complying with contractual obligations under Executive 
Order 11246. The program established a long-term goal or 39is
minority participation in craft positions at Kaiser's plant

2 /in Gramercy, Louisiana," to be achieved by selecting one quali­
fied minority or female employee to fill an on-the-job training 
vacancy for each white male employee so selected (563 F.2d at 
222; Joint Sxh. 1, 2; App. 105-106). Prior to the affirmative 
action program in question and the simultaneous modification 
of experience requirements benefitting all employees, only five 
minority persons (out of 290) had ever been employed by Kaiser 
at Gramercy in the craft positions involved; and no employee 
minority or non-minority —  had been admitted to on-one job 
craft training unless he had prior craft experience (Mp. -.8, -0-* 
105; 563 F.2d- at 213, 233 n. 15, 234). The program at Gramercy

2 / This long-term goal was based on tne composition of the 
available workforce in the area (563 F.2d at 222 n. 11).



3

3 /

was Dart of a national program adopted, by Kaiser m d  the 
Steelworkers, and is similar to a program contained in 
the nationwide steel industry consent decrees reviewed by 
this Court in Allegheny-Ludlum, supra, 517 F.2d at 880 n. 87 

(563 F.2d at 213 , 229) .
B. Exceptional Importance of Questions Presented

The United States and the Equal Employment Opportunity
Commission intervened in this case as parties appellant after
the panel decision was filed because of the potential adverse
impact of that decision on voluntary compliance with Title VII

_4_/
and Executive Order 11246, see 563 F.2d at 230 (Wisdom, J., 

dissenting); and because the decision raised the important 
issue whether Kaiser could take steps to overcome the esiect 
on the composition of its own workforce of the traditional dis­
criminatory exclusion of minorities from- skilled craft occupations.

If the affirmative action program here in question had 
been imposed by a federal district court in the exercise of its 
equitable discretion as a remedy for a history of prior discrimi­
nation established in a litigated adversary proceeding, the settled 
law of this Circuit would require that the program be upheld. See, 
e.g. , Morrow v. Crisler, supra; NAT. CP v. Allen, supra. Similarly,

3/ On November 29, 1977, the EEOC, which has the responsi­
bility for enforcing Title VII with respect to companies and 
unions such as Kaiser and the Steelworkers, certified tnat 
this case "is of general public importance pursuant to 42 
U.S.C. 2000e-5(f) (1)• See Exhibit A to Motion or the United 
States and the Equal Employment Opportunity Commission 
Intervene as Parties Appellant herein, filed December 1, 19/7

On December 28,1977, the EEOC published proposed_ 
Guidelines Relating to Remedial and/or Arfirmative Action 
Aodro driate Under Title VII of the Civil Rignus Act or 
1964 /as amended. See 42 Fed. Reg. 64826 (December 23,
1977).
A/ Enotnote aonsars on following pape.



4
if the same program had been incorporated into a consent
decree in settlement of a lawsuit alleging a history of
prior discrimination, entered by a district court with no
finding of discrimination, and accompanied by a specific
denial of discrimination, the program would in those circum-
statces also be upheld. See Allegheny-Ludlum, Supra, 517 F.2d
at 346-848, 849, 380 n. 37, 381; City of Jackson, supra, 519
F.2d at 1150, 1150 n. 4, 1151, 1152 n. 9. In the case at bar,

J5_/
by way of contrast, the program was adopted voluntarily with 
out the necessity of any litigation, contested or uncontested. 
The panel majority's decision that it is unlawful discourages 
voluntary compliance and encourages unnecessary litigation.

"Cooperation and voluntary compliance were selected 
[by Congress] as the preferred means for achieving [the] goal 
[of Title VII]." Alexander v. Gardner-Denver Co., 415 U.S. 36, 
44 (1974). See also Alleghany-Ludlum, supra, 517 ?.2d at 346- 

348. The affirmative action program which the panel majority
has held unlawful appears on its face to be the kind of 

4 / (Footnote cont'd from preceding page)
The success' of the Executive Oruer program is necessarily 
contingent upon contractor-initiated voluntary compliance. See 
Brief for the United States and the Equal Employment Opportunity 
Commission as Amicus Curiae herein, filed February 12, 19/7, at

Director of Equal Opportunity Affairs testified 
jur position that ... we should do tnose things

u u r  C i l J - U c i i -  U i  i t r ' H  t i n)  ' j ~ ----------- -̂------------ u

laws of the land.... I don't think ... that tne pressures,  ̂
car se, of the Federal agencies responsible, say,^ for compliance^ 
have brought industry to their knees and forced them >.0 co i..ni„gs 
that they"didn't think, in their good judgment, were appropriate 
responsibilities on their cart" (App. 152—153, 1 8 1 ) me^ 
Steelworkers, of course, agreed to the collectively bargained 
program at issue in this case. For an evaluation or tne sig­
nificance of the union's agreement, see App. lo5.

pp. 31-33.

j y Kaiser's
that "it was
that are nece



5
enlightened voluntary compliance which the courts have 
sought uo encourage, and which is required by Executive 
Order 11246. Kaiser and the Steelworkers did what federal 
law and regulation obligated them to do, namely "'to self­
examine and to self-evaluate their employment practices and 
to endeavor to eliminate, so far as possible, the last 
vestiges of an unfortunate and ignominious page in this 
country's history.'" Albemarle Paper Co. v. Moody, 422 U.S.
405, 418 (1975) (citation omitted) .

The dispariuy in this case between the proportion of 
minorities available in the relevant workforce (39%), and their 
proportion in the relevant craft jobs (less than 2%), was so 
great as to lead inescapably to the conclusion that it was 
accounted for by prior discrimination —  the only ambiguity on the 
piesent record is as to whose prior discrimination was responsible 
It is unclear whether Kaiser had engaged in any discrimi­

nation, or whether the absence of iainority craftsmen was 
«-nt~i_ely Qua '-o discrimination by others. However that 'may be, 
the record is_ compelling that Kaiser could reasonably have made 
uhe judgment that it might be found liable under Title VII, and 
-chat the prudent course of action was to remove those conditions 
which might give rise to liability. Surely, if there is a sub­
stantial possibility that the law would require a course of 
action by decree after trial, the same law (Title VII) cannot 
prohibit the same course of action taken voluntarily. See 563 

. '-t 2o0 — 234 (Wisdom, J. , dissenting) ; see also Arcuments
C (1), C (2), infra.



6
Moreover, Executive Order 11246 and the Secretary of 

Labor's implementing regulations (41 C.F.R. 60-1.1, 60-1.4, 60-1.40; 
41 C.F.R. Part 60-2) require government contractors to identify 
and remedy "underutilization" of minorities and females, whether 
or not such underutilization results from discrimination by the 
contractors themselves. It is clear that continued reliance on 
"outside" craft training and experience would have continued to 
carry into Kaiser's craft workforce the underutilization resulting 
from historical discrimination against minorities and women in 
the non-industrial sources of such training and experience. xhis 
fact alone provided a predicate under the Executive Order for affir­
mative action by Kaiser. See 562 F.2d at 236-233 (Wisdom, J., 

dissenting).
Thus, even if there had been no prior discrimination by 

Kaiser or the Steelworkers, the affirmative action program in 
the present case "may ... be upheld as a proper response to 
societal discrimination against blacks." 5o3 F.2d au 23- 23o 
(Wisdom, J., dissenting). Cf. Califano v. Webster, 430 U.S.

6/ The United States has argued that affirmative acuion 
programs undertaken by universities seeking_to overcome the 
effects of societal discrimination upon their student admission 
oractices may, consistently with Title VI of the 196. Civil 
Riqhts Act, 42 U.S.C. 2000d at seq., take race into account.
See Supplemental Brief for the United States as Amicus Curiae, 
Regents of the University of California v. 3ak.<e, S. u. to.
76-811, filed November 15, 1977; see 46 U.S.L.W. 3261 ( • • 
October 17, 1977). (Copies of this brief have been lodged 
with the Clerk for distribution to the Court m  tna present 
case, and have been served on counsel.)

It is not clear whether the Supreme Court will actually 
address Title VI in Bakke, or whether it will confine itseu 
to die constitutional issue ruled upon by thê  Supreme Court 
of California. Nor, of course, is it clear wnat impact a 
decision in Bakke might have on the present case, wnich rai^s 
non-constitutional issues under Title VII and_Executive Older 
11246. In addition, the panel here did not witnnold its
(Footnote coat'd on next page)



7
313 (1977); United Jewish Organizations of Williamsburch, Inc.
v■ Car£y >  ̂3 0 U.S. 144 (1977); Kirksey v. Board of Supervisors
of Hinds County, Mississippi, 554 F.2d 139 (5th Cir. 1977)
(en banc), cert, denied, 46 U.S.L.W. 3357 (U.S. November 28,
1977). This understanding is a fundamental premise of Executive
Order 11246 and 41 C.F.R. Part 60-2. As the Third Circuit
held in a decision which this Court has described as "a very
persuasive precedent," United States v. New Orleans Public
Service, Inc., 553 F.2d 459, 463, reh'q denied, 559 F.2d 30
(5th Cir. 1977), pet._for cert, pending, No. 77-497:

A finding as to the historical reason for 
the exclusion of available tradesmen from 
the labor pool is not essential for federal 
contractual remedial action.

Contractors Association of Eastern Pennsylvania v. Secretary of 
Labor, 442 F.2d 159, 177, cert, denied, 404 U.S. 354 (1971).

The pauiel majority's treatment of the issue under 
Executive Order 11246 (see 563 F.2d at 226-227) sweeps the 
Executive Order program aside without adequate consideration 
of ics independent legal status or the'legitimacy of efforts

,6_/ (Footnote cont'd from preceding page) 
decision pending Bakke. in these circumstances, we do not 
advocate that the Court hold the present petition for rehearing 
in abeyance pending Bakke. Cf. Kirksey, supra; United States v. 
IgigS-Sducation Agency, 467 F.2d 848 (5th Cir7 19721 (en banc). 
however, if the Court is inclined to withhold final action 
pending Bakke, then we would respectfully suggest that —  
because of the potential impact of this case upon voluntary

mcompliance with Title VII and Executive Order 11246, and 
light of the arguments set forth in this petition —  rehearing 

kanc be granted and the panel decision be vacated pending 
final disposition of the case by the en banc Court.



8

to achieve voluntary compliance with its requirements. The
Executive Order "has the force and effect of law," and
represents "a long-entrenched government program, set in
motion and continually kept alive by a series of presidents
and approved by Congress." NOPSI, supra, 553 F.2d at 465-466.

Contrary to the panel majority's suggestion (563 F.2d
at 227), there is no conflict between the Executive Order and
the "direct congressional prohibition [of 42 U.S.C. 2000e-2(d)] :

To read Section 703(a) in the manner suggested 
... we would have to attribute to Congress^che 
intention to freeze the status quo and to fore­
close remedial action under other authority 
designed to overcome existing evils. We dis­
cern no such intention either from the language 
of the statute or from its legislative history.

V
Contractors, supra, 442’ F.2d at 173.

Congress has expressly approved the mandatory imposition 
of numerical goals and timetables under the Executive Order 
without a judicial finding of discrimination. See 118 Cong.
Rec. 1662-1676, 4917-4913 (1972); see also Comment, The 
Fh i 1 a del phi a ? Ian; A Study in the Dynamic s of S:cecutlye_Power, 
39 U. Chi. L. Rev. 723 (1972); Supplemental Brief for the United 
States as Amicus Curiae, Regents of the University_of_^l^£,rnia

7/ The present case cannot, as the panel majority suggests 
7563 F.2d at 227), be distinguished from Contractors on_the 
basis that the language of Section 703(d) of Title V H  is more 
explicit" than the language of Section 703(a); the language or 
these two sections is the same in all material respects. ^
Compare 563 F.2d at 219 with id. at 219 n. 4. [These] gene_al 
orohibition [s] against discrimination cannot be construed as _ 
limiting Executive authority in defining appropriate amrmarive 
action on the part of a contractor. " _ Contractors, supra,
2d at 173. Nor can Contractors be distmguisned (see obi 
at 227) on the basis that it rested upon a finding or discrimina­
tion; that finding concerned discrimination by crart unions, not 
by the contractors. Ibid; 563 F.2d at 237, 237 n. 21 (mi^’.o.m, .
dissenting). See also Contractors, supra, ^42 F.2d at l/s.



9
v. Bakke, supra note 6, at pp. 12 n. 3, 19-23; s63 F.2d 
at 237-238 (Wisdom, J., dissenting). It would be anomalous 
to conclude that such mandatory affirmative action programs 
are permissible but that similar voluntary programs are not. 
The panel majority's discussion of the Executive Order (563 
v 2d'at 226-227) gave no weight to these important ccnsidera-

_a/
tions.

This case, then, raises questions of exceptional 
importance concerning the conditions under which employers and 
unions may undertake affirmative action for the purpose of 
achieving voluntary compliance with Title VII and Executive 
Order 11246. These questions are far too important to be 
resolved for this Circuit by a divided panel. This reason 
.alone warrants rehearing en banc in this case. Rule 35(a) ,
Fed. R. App. P. Cf. Morrow v. Crisler, supra; Career v.
C-allagher, 452 F. 2d 315, 327 (3th Cir.) (en banc) , S.!£k 

denied, 406 U.S. 950 (1972).
C. Conflict with Other Decisions

The panel majority correctly rejected tire district 
court's holding that affirmative action involving numerical goals 
and timetables may never voluntarily be adopted in the absence ot 
a judicial decree entered after litigation or by consent. 5o3 
F.2d at 223. However, every other distinction between this case 
and cases approving court-ordered remedies and consent decrees 
under Title VII or affirmative action programs unaer Executive

8/ On the other hand, 
attached undue weight to 
former Labor Department 
10, 227 n. 17.

the panel majority appears to have 
certain extra-record comments of a 

official. See 563 F.2d at 222, 222 n.



10
Order 11246 suggested by the panel majority conflicts wi th 
other decisions of this Court, the expressed intent of 
Congress, or compelling considerations of policy and practical-

1. The panel decision could be construed as holding 
that numerical goals may not be adopted in the absence of an 
admission or a finding of prior discrimination. See 563 F.2d 
at 223-225. Such a holding would directly undermine not only 
the Executive Order program, but also the basis upon which 
consent decrees are routinely negotiated and approved by i-ne^ 
courts without any admission or finding of discrimination.
It would be unrealistic to require an employer/contractor to
make an admission of discrimination —  thereby potentially sub­
jecting itself to retrospective as well as prospective legal 

11/liabilities —  before it may settle a lawsuit or engage in

9/ Compare Argument C(2), infra. Because^several issues are 
discussed in the panel majority's opinion, it is not entirely 
clear which factor(s) the majority found to be controlling.
10/ For example, the district judge in the present case has 
also refused to enter a proposed consent decree^signed^by over 
20 police and fire jurisdictions in the State of Louisiana 
charged with race and sex discrimination in a government enforce 
ment action. The principal reason asserted for the court^s refusal 
to aporovG the consent decree is that "no past discriminatory 
conduct has been proven, stipulated, or agreed to, and ... the 
Court has made no independent finding [of discrimination].
Indeed, by the very terms of the consent decree, such^past dis­
crimination is specifically and vigorously denied by the 
defendants." Memorandum Opinion of July 22 , 19 77, United^ Stcxtes 
v. City of Alexandria, et al., C.A. No. 77-2040,^Section 
E.D. La. (copy attached hereto as Appendix A). See also 563 F.
2d at 229 n.* 6, 230 (Wisdom, J. , dissenting).
13/ See Albemarle Paper Co. v. Moody , supra.



11
voluntary affirmative action pursuant to Executive Order 
11246 in order to remedy underutilization of minority or 
female workers. This Court discussed the relevant policy 
considerations when it approved consent decrees containing,

inter alia, numerical goals for craft employment similar to
12/

the goals involved in the present case:
Parties would be hesitant to explore the 
likelihood of settlement apprehensive as 
they would be that the application^for 
approval would necessarily result in a 
judicial determination that there was no 
escape from liability or no hope of 
recovery and hence no basis for a com­
promise .

Allegheny-Ludlum, supra, 517 F.2d at 849 (quoting from Florida
Trailer and Equipment Co. v. Deal, 234 F.2d 567 (5th Cir. I960));
accord, City of Jackson, supra, 519 F.2d at 1152 n. 9:

Because of the consensual nature of the decree 
.... the [defendants] also minimize costly 
'litigation and adverse publicity and avoid 
the collateral effects of adjudicated guilt.
If the panel opinion in the present case is interpreted

to hold that an admission or a finding of discrimination is a
necessary precondition to affirmative action under Title VII or 
Executive Order 11246, then the conflict with the reasoning of
Allegheny-Ludlum and City of Jackson is apparent, and voluntary 
compliance —  if not settlement as well, cf. Allegheny-Ludlum ^ 
supra, 517 F.2d at 881 —  has indeed been held to be unlawful.

12/ Allegheny-Ludlum, supra, 517 F.2d at 380 n. 87. See also 
App. 131, 152; 563 F.2d at 229.
13/ see 563 F.2d at 229 n. 6, 230 (Wisdom, J., dissenting). 
See also note 10, supra.



12
2. The panel decision might also be construed as

holding only that numerical goals may not be adopted when 
a court would find an absence of prior discrimination. See 
563 F.2d at 223-225. While such a construction might appear 
distinguishable from, and less drastic tnan the construction 
just discussed, it is normally contrary to the interests of 
all parties to a suit such as this to prove the existence of 
prior discrimination. The same reasons that militate against 
admissions of liability by parties to consent decrees (see 
supra) apply to admissions of liability in order to justify 
voluntary compliance. All lawsuits such as the present case 
will produce a record reflecting the fact that "no litigant

14/wanted to see past discrimination found." 563 F.2d at 231
(Wisdom, J., dissenting). Thus, in all such cases, as here,_ a 
finding by the district court that there was no prior discrimina­
tion will be "highly questionable." Id. at 229 n. 7 (Wisdom, J., 

dissenting).
3. To the extent that the panel decision relies on the 

proposition that g-cals and timetables are improper if they pens— 
fit persons who are not identifiable victims of prior discrimina­
tion (see 563 F.2d at 225-226), it resurrects a question which ha

14/ Nor did the district court in this case initiate^its own 
independent inquiry into the question whetner prior aiscrimina 
tion" existed. And if governmental or minority plaintiffs were 
required to intervene in these cases in the district courts and 
nrove a case of discrimination, the very concept oi voluntary 
compliance would be defeated.



13
long sines been settled to the contrary in this Circuit and 
elsewhere. The numerical relief mandated and approved by 
this Court in Morrow v. Crisler and NAACP v. Allen, supra, 
respectively, ran to present black applicants as a class, and 
was in no way limited to identifiable victims of past discrimi 
nation. Even if it ware assumed arguendo that those decisions

15/
represented a "wrong turning," they are the law of this 
Circuit and can be revisited only by the en banc court. On 
this issue the panel majority relied upon a decision of the 
Eighth Circuit which was reversed by that court sitting en banc 
in 1972 on the very issue for which it is cited by the panel 
majority. Compare 563 F.2d^at 225 with Carter v. Gallagher, 

supra, 452 F.2d at 327-332.

15/ Morrow v. Crisler, supra, 491 F.2d at 1064 (Gee, J., con­
curring and dissenting).
16/ To be sure, the collectively bargained training program 
in question in this case affects 'the manner in which seniority 
is utilized with respect to craft training opportunities. But 
prior to 'the institution of this training program in 1974 the 
allocation of such opportunities was not determined solely by 
seniority —  prior craft experience was required (App. 196-197). 
The 1974 training program created entirely new seniority expec­
tations for white employees with no pz'ior craft experience as 
wall as for blacks. See 563 F.2d at 232-234, 233 n. 15, 235 
(Wisdom, J., dissenting). This case does not, therefore, involve 
any question of modification of pre-existing seniority expecta­
tions. But in any event,

employee expectations arising from a seniority 
system agreement may be modified by statutes 
furthering a strong public policy interest....
[A] collective-bargaining agreement may go 
further,' enhancing .'the seniority, status of cer­
tain employees for purposes of furthering public 
policy interests beyond what is required by 
statute, even though this will to some extent be 
detrimental to the expectations acquired by other 
employees under the previous seniority agreement 
.... And the ability of the union and employer 
voluntarily to modify the seniority system to the

(Footnote cont'd on next page)



14
CONCLUSION

For the foregoing reasons, the panel or the en banc 
Court should grant rehearing and reverse the judgment below. 
Alternatively (see supra note 6 ), rehearing en banc should
be .granted and the panel decision should be vacated pending 
final disposition of the case by the en_ banc Court after the 
Supreme Court's decision in Regents of the University of 
California v. Bakke.

ABNER W. SI3AL 
General Counsel 
Equal Employment

Opportunity Commission 
Washington, D. C. 20506

CARl'N ANN CLAUSS . 
Solicitor of Labor 
Department of Labor 
Washington, D. C. 20210

Dated: January 14, 1978.

Respectfully submitted,
DREW S. DAYS, III 
Assistant Attorney General
GERALD J. GALLINGHOUSE 
United States Attorney

Attorneys .
Department of Justice 
Washington, D. C. 20530

16/ (Footnote cont'd from preceding page)

end of ameliorating the effects of past racial 
discrimination, a national policy objective of the 
"highest priority," is certainly no less than rn 
other areas of public policy interests. Pelli_cer
v. Brotherhood of Ry. & S._S. Clerks, 217 F.2d 205
(ca~5~1.95 4)^ cert. denied, 349 U.S. 912 (1955).

Franks v. Bowman Transportation Co., 424 U.S. 747, 773-779 
cTted-with approval, Inter-national Brotherhood .
United States, 431 U.S. 324, 347 (1977).

(1976)
v.



I i
k

ti
fc

A
 A

ki
tl

 Ar
t

I
APPENDIX A

i \ '
1 * , o

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA 

VERSUS
CITY OF ALEXANDRIA, ET AL

CIVIL ACTION 

NO. 77-2040 

SECTION "I"

Gordon, J.
MEMORANDUM OPINION

On June 29, 1977, the United States of America, plaintiff,

this civil action against the State of Louisiana and several Louisiana cities 

ES representatives of a class of over forty defendant cities and fire districts 

for whom police and firemen employment examinations are administered oy 

State Police and Fire Civil Service. In essence, the complaint alleges that, 

the defendants have engaged in a pattern and practice o f  discrimination in 

employment on the basis of race and sex.

Simultaneous with the filing of the conplkint, the Court was pre­

sented with a "partial consent decree" for its signature. For the most^part, 

the decree is designed to correct the present effects of the defendants past 

alleged illegal hiring and assignment practices. In order to accomplish this 

mim, the decree not only enjoins future discriminatory conduct, but also 

establishes quota systems for the hiring of "qualified" blacks and f-mcales.

In other words, in order to remedy the affects of the alleged past disenmna- 

! tion, certain percentages of all future employment vacancies must be tilled by 

"qualified" blacks or females. Of necessity, this will require discrimination 

■ against equally qualified whites and males in order for the defendants 

their court-ordered quotas of blacks and females.

. . .  f-ii-aut lar^uae", the consent decree states:•. In particularly signmc=nt ,

i: Thl-S Decree, being entered with the consent
ii . of the*defendants , shill not constitute^adjudication^

or finding on the merits of the case 
and each of them, dc^Lk^- has occurred. Defendants s p e c m c a U y  as.e

J Dccr.ee shall not constitute an admission of any viola
i' tion of law. (Emphasis added.)

DATE OF EKTRY
5 jI



0 - A-2 - D

- 2-

Thus, the Court is being asked to order extraordinary remedies affecting not 

only the defendants, but also the public in general, in a situation where no 

past discriminatory conduct has been proven, stipulated, or agreed to, and of 

which the Court has made no independent finding. Indeed, by the very terns 

of the consent decree, such past discrimination is specifically and vigorously 

denied by the defendants.

The Court is well aware of the lofty purposes of Title '.'ll of the 

Civil Rights Act of 1964 in attempting to encourage voluntary resolution of 

cases. Notwithstanding this purpose, before a consent decree such as this can 

be signed, the Court must assure itself that the terms of the decree are not 

unlawful, unreasonable or inequitable. United States v. City of Jackson,

519 F.2d 1147 (5th Cir. 1974); United States v. Allegheny Ludlum Industries, 

et al, 517 F.2d 326. (5th Cir. 1975), cert, denied 425 U. S. 944 (1976). After 

affording the parties an opportunity to brief the issues, the Court is con­

vinced that the decree does not meat the test outlined in City of Jackson, 

supra, and, accordingly, should not be signed.

The most serious area of the Court's concern is the fact that 

the decree requires the defendants to discriminate against qualified whites 

and males to achieve a quota system, in order to rectify the alleged effects 

of past discrimination. As noted in this Court's opinion in Weber v. Kaiser 

Aluminum and Chemical Core., 415 F.Supp. 761 (E.D.La. 1976):

Thus, the courts are cognisant of the undesirable 
effects accompanying quota systems, and, accordingly, 
have established such systems only i.n factually limited 
circumstances. For example, the courts in recent 
decisions have refused the invitation to impose such 
affirmative action plans without first being convinced 
that those seeking relief have themselves been the 
subject of past discrimination. (415 F.Supp. 761, 763)

■I The Second Circuit Court of Appeals taught in Kirkland v. New Yorki;
!: State Department of Correctional Setvices, 520 F.2d 420 (2d Cir. 1975), cert. i; —
i; denied 97 S.Ct. 430 (1975):

\



0 A-3

-3-
A court must approach the use of quotas in a 

limited and "gingerly" fashion. (520 F.2d 420, 427)

The Second Circuit further explained in Equal Emolo\-ent Opportunity _Commissiun 

v. Local 638, 532 F.2d S21 (2d Cir. 1976):

The Kirkland court promulgated a two-fold test 
for the imposition of temporary quotas. There must
first be a "clear-cut pattern of long-continued and .
egregious racial discrimination". Second, the effect
of reverse discrimination must not be "identifiable. j
That is to say, concentrated in a relatively small,
ascertainable group of non-ninority persons. (o32 F.2d
821, 328) !

The parties have cited to this Court no case in which an issue was specifically j 

raised concerning the rectitude of a court's ordering a quota system merely on 

the consent of the parties before the courts, without an independen. -etermina- , 

tion by the court that the tests for imposition of quotas have been met. j
: !' _ . . .  I

The Government contends that this consent decree "does not order any : 

discriminatory conduct." The basis for this argument is that while the decree j 

sets numerical objectives, "the numerical objectives are goals’which the j

defendants are to adopt and seek to achieve through the elimination of arti­

ficial barriers to equal opportunity. There is no obligation to hire u.-n.ecessa»yj 

or unqualified persons." Such an argument is a glaring ex. pie of sop’nis ry 

It would have the Court blind itself to the actual effects of such a consent 1 

decree which, by its very terms, requires the hiring of blacks and females 

over equally qualified whites and males, merely to meet a quota system. It •

this does not constitute discrimination against whites and males, then nothing ..
i

does.

The parties would have this Court add judicial sanction to the consent: 

decree without any knowledge that it is lawful, reasonable, or equitable, but .

merely because such judicial sanction is expedient. If Congress intends m a t  .

life-tenured members of the Federal Judiciary sign consent decrees which order ; 

discrimination against a large segment of our population, without any tindir.g of ; 

past discrimination against minorities, merely in the name of expediency, it j 

should so amend the Civil Rights Act of 19 64. See, Weber, sunra. Since Con^ss,
I

has not so amended the Act, the Court must be guided by the principles enunciated



0 - A-4 -

-4-

by the Fifth Circuit in City of JacVson. Applying those principles to the 

decree now before the Court, the Court is not assured that the ter,, of said 

decree are not unlawful, unreasonable or inequitable. Thus, the Court will not 

sign the proposed consent decree. To do so would constitute abroSation of 

judicial responsibility to the Department of Justice and compliant defendants. 

Such abrogation would be particularly repugnant in this case where the lives of 

untold numbers of citizens would be affected by the decree.
action in refusing to sign the proposed decree should not be construed in any 

way as an opinion of the Court on the merits of the case, or on the wisdom or 

legality of voluntary action by the parties.

? Hew Orleans, Louisiana, this 22nd day of July, 1977.

f] •

/ -----VijNXTED STATES MST-UCT JUDGE

; / 
V



CERTIFICATE OF SERVICE

I certify that on January 14 , 1978 I served the 
foregoing Petition for Rehearing and Suggestion of 
Rehearing En Banc, and the Supplemental Brief for the 
United States as Amicus Cur iae in Regents of the_ 
University of California v. Bakke, S.Ct. No. 76-811, 
by mailing copies thereof, postage prepaid, to the
following counsel of record:
Michael Gottesman, Esquire 
Btedhoff, Cushman, Gottesman 

& Cohen
1000 Connecticut Avenue, N.W. 
Washington, D. C. 20036
Robert J. Allen, Jr., Esquire 
Legal Department 
Kaiser Aluminum & Chemical 

Corporation 
300 Lakeside Drive 
Oakland, California 94612
Cloyd R. Mellott, Esquire 
Eckert, Seamans, Cherin & 

Mellott
600 Grant Street
Pittsburgh, Pennsylvania 15219
Burt A. Braverman, Esquire 
Cole, Zylstra & Raywid 
2011 Eye Street, N. W. 
Washington, D. C. 20006
John W. Finley, Jr., Esquire 
Brashich and Finley 
501 Madison Avenue 
New York, New York 10022
Arnold Forster, Esquire 
315 Lexington Avenue 
New York, New York 10016
Jane Lang McGrew, Esquire 
Steptoe & Johnson 
1 250 Connecticut Avenue, N.V7. 
Washington, D. C. 20036

Michael R. Fontham, Esquire 
Stone, Pigman, Walther,

Whittmann & Hutchinson 
1000 Whitney Bank Building 
New Orleans, Louisiana 70130
Frank W. Middleton, Jr., Esquire 
Taylor, Porter, Brooks & Phillips 
Post Office Box 2471 
Baton Rouge, Louisiana /0821
Jerome A. Cooper, Esouire 
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
Joseph P. Fischer, Esquire 
Law Department 
ALCOA Building
Pittsburgh, Pennsylvania 15219
Austin Graff, Esquire 
6601 West Broad Street 
Richmond, Virginia 23261
Gene E. Voigts, Esouire 
Shook, Hardy & 3acon 
Mercantile Tower Building 
1101 Walnut Street 
Kansas City, Missouri 64106

JOEL L. SELIG 
Attorney
Department of Justice 
Washington, C. C. 20530