UNITED STEELWORKERS OF AMERICA v. WEBER
The United Steelworkers of America and the Kaiser Aluminum and Chemical Corporation implemented an affirmative action-based training program to increase the number of the company's black skilled craft workers. Half of the eligible positions in the training program were reserved for blacks. Weber, who was white, was passed over for the program. Weber claimed that he was the victim of reverse discrimination. These cases (United Steelworkers v. Weber and Kaiser Aluminum v. Weber) were also decided together with United States v. Weber.
Did United and Kaiser Aluminum's training scheme violate Title VII of the 1964 Civil Rights Act prohibiting discrimination on the basis of race?
Legal provision: Civil Rights Act of 1964, Title VII
No. The Court held that the training scheme was legitimate because the 1964 Act "did not intend to prohibit the private sector from taking effective steps" to implement the goals of Title VII. Since the program sought to eliminate archaic patterns of racial segregation and hierarchy while not prohibiting white employees from advancing in the company, it was consistent with the intent of the law.
Argument of Thompson Powers
Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 78-432, United Steelworkers against Brian Weber and the consolidated cases.
Mr. Powers, you may proceed whenever you're ready.
Mr. Powers: Mr. Chief Justice and may it please the Court.
This case is here on writ of certiorari to the Court of Appeals for the Fifth Circuit.
At issue is whether Title VII of the Civil Rights Act of 1964 permits an employer and a union to remedy the past exclusion of minorities and women from craft employment by establishing a new craft training program which takes account of race and sex in selecting those to be trained.
Let me begin by stating one central fact, the provisions of the 1974 Kaiser Steelworker Labor Agreement which are being challenged in this case where a remedial measure adopted in response to employment discrimination litigation concerning a lack of minorities and women in craft employment.
Those are not simply my words.
They are contained in the provisions of the labor agreement itself and they appear in paragraph 5 of plaintiff's complaint in this case which is reprinted in the appendix at page 11 and they were admitted not only by the company but by the union in its answer to the complaint which appears in page 17 of the joint appendix.
So the character of the program is not really in dispute.
It was remedial and it sought to do more than remedy or achieve racial balance for society sake.
The program was explicitly focused in response to employment discrimination litigation in which both Kaiser and the steelworkers were then engaged.
To meet the situation, the Kaiser Steelworker Agreement established a new program at 15 company plants under which Kaiser employees who had no prior craft experience could achieve training.
And, as was being done in the steelworks consent decree to which the steelworkers were a party, the agreement provided that 50% of the training opportunities would be allotted to minorities and women.
One of those 15 clients is the Gramercy Louisiana plant which is engaged -- which is the site of this litigation.
It is important to emphasize that the company's desire to assure compliance with its Title VII and Executive Order obligations were not simply involved in the establishment of the 1974 program, they were the reason for it.
If the company had been able to recruit what it regarded as adequate numbers of minorities and women who were already fully trained, then it would have had every reason to continue to take advantage of its ability to recruit fully trained craftsmen and save the substantial cost that training involved.
As it's clear from the record, at the Gramercy plant alone, by agreeing to this training program, the company undertook an obligation that could be expected to cost it $400.00 up to $400,000.00 a year.
Now, this training program provided opportunities not only for blacks and women but for white males who had no prior craft experience.
The respondent Brian Weber was one of those employees who had no prior craft experience.
And when opportunities came to bid in this new craft training program, he bid.
And when he was not selected, he filed a charge under Title VII alleging that he would have been discriminated against because blacks less senior than he had been selected.
The lower courts --
Justice Harry A. Blackmun: Mr. Powers, I want to be sure.
Kaiser is or is not admitting past discrimination?
Mr. Powers: Kaiser does not admit past discrimination.
It does concede that both the substantially low employment of minorities and women in craft jobs at the time and the fact that it had insisted on prior experience as a condition not only for employment as a full craftsman but also for entry to into training programs where factors that a court might have used in finding that there was a prima facie case of discrimination.
Justice Harry A. Blackmun: Beyond this, Kaiser does not go?
Mr. Powers: Kaiser does not concede discrimination under Title VII.
It does not concede that the Executive Order required this action.
It recognize --
Justice Byron R. White: I don't know -- do you concede that the figures would have made out of prima facie case requiring Kaiser to come forward with some explanation.
Mr. Powers: We certainly would concede that it's arguable and I think the Fifth Circuit's decision in Parson against Kaiser which involves a neighboring plant of Kaiser to the Gramercy plant and one that is also subject to this 1974 agreement shows that courts could reach that conclusion.
Justice Byron R. White: Well, what I'm asking whether ultimately whether you concede that after the case, that you could not make out any defense but do you concede that the figures would make a prima facie case that would require you to come forward?
Mr. Powers: I don't concede.We don't concede that there is a prima facie case.
We do recognize that there are the elements that a court might use to find such a prima facie case.
The two points that we want to stress at this time are these, in our judgment the standard which the Fifth Circuit adopted and which the lower court and which the respondents argue for that there must be a proof of prior discrimination and an identification of the victims of that discrimination.
Well, literary in affirmative action, if that is the price that employers and unions must pay, in order to try to remedy the exclusions of the past, it is in our judgment prohibitive.
Secondly, we consider that the type of remedial action that was taken in this case is consistent with the standards which a majority of this Court approved in the Bakke case and are otherwise reasonable.
Justice Potter Stewart: Of course the Bakke case really has nothing to do with this one.
The Bakke case was decided by majority of the Court under the Equal Protection Clause of the Fourteenth Amendment which is wholly inapplicable here, isn't it?
Mr. Powers: We believe Your Honor that, Mr. Justice Stewart that the standard is no stricter for approving race conscious action under Title VII.
Justice Potter Stewart: (Voice Overlap) as lawyers and judges, it's quite different isn't it?
It doesn't involve the Equal Protection Clause and the Fourteenth Amendment at all.
Mr. Powers: It does not involve the Equal Protection Clause.
Justice Potter Stewart: It involved the 1964 Act of Congress?
Mr. Powers: That is correct.
Justice Potter Stewart: It's pretty clear that -- it's entirely clear I suppose saying the one side the post-civil war legislation that until 1964 your client could have had a training program for all white people, all women, all Negroes, or all anything else and it's only because of this active Congress that this lawsuit arises, isn't it?
Mr. Powers: That is correct.
Justice Potter Stewart: Nothing to do with the Constitution or the Fourteenth Amendment of it?
Mr. Powers: That is our position and we believe that's clear.
Justice Potter Stewart: (Voice Overlap) isn't it?
Isn't that --
Mr. Powers: Excuse me?
Justice Potter Stewart: That's not only your position, that's the fact of the matter, isn't it?
Mr. Powers: Yes, we agree with that.
Justice William J. Brennan: And really the very narrow question, you could have done this as my Brother Stewart said before 1964.
Mr. Powers: Oh!
There's no question --
Justice William J. Brennan: Are they only narrow and very narrow question is whether 1964 Act forbids you from doing?
Justice Harry A. Blackmun: That's right.
Mr. Powers: That is correct.
Justice William J. Brennan: That's all that there is to the case?
Justice Harry A. Blackmun: That's right.
Mr. Powers: And in our judgment --
Justice William J. Brennan: Isn't that all there is to the case?
Mr. Powers: I believe it is all.
And we would say furthermore, Your Honor, Mr. Justice Brennan that we believe far from prohibiting this type of action, we believe that Title VII encourages it.
Justice William H. Rehnquist: Mr. Powers, supposing that the quest -- the answers you've given to my Brother White's and Blackmun's questions previously were different, that there wasn't even any arguable showing that your company had discriminated in the past.
Do you think that the program you instituted 1974 would be permissible under Title VII?
Mr. Powers: We believe that Title VII may require employers to take action which prevents them from importing into their own workforce discrimination which others have -- are responsible for.
We believe that that is certainly the way the Executive Order seems to have been interpreted and upheld.
Justice William H. Rehnquist: But the Title VII isn't the Executive Order, is it?
Mr. Powers: It is not but it is our understanding that the two are to be construed -- are to be reconciled and as we read the legislative history of Title VII, the 64 legislative history, the Congress was aware that there was an Executive Order and it sought to provide that that programming including the affirmative action elements of it, would be allowed to continue.
Justice William H. Rehnquist: So you said that even though there -- nobody could have made out even a prima facie case of discrimination against your company in court, nonetheless this agreement was permissible under Title VII?
Mr. Powers: What I'm -- my point is this that we think there must be --
Justice William H. Rehnquist: Well, can you -- can you answer the question?
Mr. Powers: Yes, sir.
My difficulty is simply in responding to you as to whether or not an employer can be charged with discrimination when he acts in such a way that brings the practices of others into his own workplace.
Some would say that that creates a prima facie case of discrimination on the part of that employer.
It isn't what the employer has initiated but what he perpetuates in his workplace to the extent that that creates a prima facie case of discrimination then that is a situation comparable to the one in which Kaiser found itself.
It was trying to utilize experienced craftsmen trained by others under conditions which it seems to me were clearly recognized as being discriminatory.
I cited some --
Justice William H. Rehnquist: You think to the extent that creates discriminate situations or discrimination.
What's your position as to whether it does or does not create that situation?
Mr. Powers: I come back to my first answer to Mr. Justice White.
We denied that the company discriminated.
We recognize that there are questions as to whether certain conduct may be regarded as creating a prima facie case of discrimination and required justification.
We think that employers and unions must be allowed to take this kind of remedial action recognizing that the outcome of litigation may be in doubt.
Chief Justice Warren E. Burger: Well, the employers and union could do it, if Congress would let them do it, is that not so?
Mr. Powers: We believe that Congress could specifically authorize this type of action.
It's our position that it did not prohibit it.
Chief Justice Warren E. Burger: Suppose for example Congress had a statute which I, I will try to draft the statute here but something to this effect that provided however, applying to all existing statutes that nothing in this statutes would prohibit an employer, unilaterally or by contract with the union from agreeing to carry out a program of the kind we have here, the preferential treatment to minorities who'd been denied equal opportunities in the past in order to remedy that.
Now, there wouldn't be any state action in that, would there?
Mr. Powers: Well, I suppose that legislation would have to pass the equal protection standards.
We believe if an adequate basis was laid it could be time to be lawful.
Chief Justice Warren E. Burger: Next, do you think that would run foul any constitutional prohibition?
Mr. Powers: Well, I mentioned the equal protection question.
And it seems to me that there's an adequate basis in a finding that this remedial action is necessary it would be upheld.
Chief Justice Warren E. Burger: I'm assuming from statutory recitals of past discrimination and exclusion including the longstanding union activities that prohibited minorities particularly Negroes from getting into apprentice programs or even membership in the union.
Mr. Powers: We would think that would be constitutional.
Mr. Chief Justice, I would like to reserve the balance of my time for rebuttal.
Argument of Michael H. Gottesman
Chief Justice Warren E. Burger: Very well, Mr. Powers.
Mr. Gottesman: Mr. Chief Justice, may it please the Court.
The case that's here today reflects one small part of what was the nationwide program undertaken by the Steelworkers Union in 1974.
In that year, it negotiated not just with this company, and not just with this industry but with all the major industries whose employees it represents programs similar to this at every plant providing that where a racial imbalance exists as between the production jobs and the craft jobs.
A quota would be instituted awarding 50% of those jobs.
The craft jobs and craft training jobs to minorities until that imbalance had been eliminated.
The union has since reconfirmed its commitment to that program at three successive conventions despite robust debate including arguments against that program from delegate Brian Weber at the most recent convention which followed the Fifth Circuit's decision in this case.
And the union is most anxious to sustain as lawful its right to negotiated contracts of this type.
Now, the union's view as to what Title VII permits is somewhat different from that of the company and it's broader.
In our view, Congress in prohibiting discrimination in Title VII did not intend to prohibit any form of, and I would call it affirmative action.
Congress did not intend to take from private employers and unions the right to adopt the program where they had a segregated workforce regardless whether that segregation was their own fault, was the fault of other societal factors and without the need to have to conduct the major investigation to trace just what the cause of that segregation was.
That the mere existence of that segregation was an undesirable phenomenon which that company and union could address by the adoption of the Court.
Justice Byron R. White: Let me ask you this.Suppose when Title VII was adopted, there was an employer who had said to himself, I think just to be fair I'm going to have my workforce mirror the racial composition of the community in so far as blacks and whites are concerned.
Suppose it was 70-30 and he hired on that basis all the time and he maintained as near as he could 70-30.
Then Title VII occurred, I take it your position would be that that would not be invalid under Title VII.
Mr. Gottesman: No, on the contrary, we think that would be the zone of permissive action as we understand it is not that an employer and union can opt as a permanent matter forever to hire on a racial basis.
It's not that they can maintain racial balance for its own sake.
This owner permission --
Justice Byron R. White: So you're still approaching it then as a remedy?
Mr. Gottesman: Well, it's remedial in the sense that if a segregated workforce is a bad thing to have, it's something you ought to be able to remedy but not necessary remedial in the sense of we committed a sin therefore we have to correct it.
Chief Justice Warren E. Burger: Is there any history Mr. Gottesman of this union having done as so many unions did the Building Trades Unions for example excluding Negroes particularly from membership in the union?
Mr. Gottesman: On the contrary, Your Honor, the history of this union is that it was built with black members first.
And that in the 1930s and 40s when it was against the law in the south to conduct integrated meetings, the leadership of this union was dragged off to jail every month because the union refused to hold segregated meetings even where the law required that and there's no history, and this is important, to our problem in trying to uphold this agreement (Voice Overlap).
Justice Thurgood Marshall: Throughout the union you have the Steelworkers organizing Committee?
Mr. Gottesman: That's correct.
Justice Thurgood Marshall: That was completely interracial.
Mr. Gottesman: Interracial.
That's correct, Your Honor, there's no question about that from historic that this union never segregated in any respect whatever.
Nor is there any question that this union had no responsibility for the picture of white exclusion from the crafts.
Unfortunately, the companies would not give the union a voice in craft selection so the union did not have the opportunity even if that had been its vent to commit discrimination.
The union had been fighting for years as this record shows to get this company to institute training program so that the whites and blacks in the plant would be able to qualify for this craft jobs.
Chief Justice Warren E. Burger: There is no doubt is there that quite a number of unions have had a systematic exclusion for past years in this respect.
Mr. Gottesman: I think, Your Honor, it is not correct of industrial unions that there is such a history.
There are findings by Court that some of the building trades unions had that.
I have no personal knowledge of that.
I know that courts have so found.
And the company testified below the trial that they believe the reason they could not find black craftsman when they went out to hire was that those unions which provided training in Louisiana prior to 1974 had not trained blacks.
So they pointed to this element of societal discrimination as the source of the different --
Chief Justice Warren E. Burger: Well, have they not trained them or have excluded them from membership which --
Mr. Gottesman: Well, what they testified was that they had not provided them training.
It was the lack of training which disabled Kaiser from hiring them because they didn't have to train black craftsman in the community.
Justice William H. Rehnquist: That wasn't true of your union, I take it.
Mr. Gottesman: Well, our union takes into membership who the company's hire.
We don't train people.
We -- the membership of industrial unions generally and of the steelworkers in particular is all the employees employed at the plants that the union represent.
Justice William H. Rehnquist: Union shop type of view?
Mr. Gottesman: Well, union shop or where it's permissible and if not then whatever of those we represent them all and whoever chooses to join in most happily do but the union's membership reflects whoever the company chooses to hire and the union doesn't conduct craft training programs.
The union negotiates to get the employer to adopt craft training programs as one of the benefits that it provides to its employees.
Now, if I may, our position is broader in terms of what we say Congress left to private parties.
Our position is wherever you have a segregation in your workforce, you may adopt the temporary quota to eliminate it and it's our burden of obviously to convince this Court that Congress indeed did leave that area unregulated in 1964.
As Mr. Justice Stewart has pointed out, there's no question that until 1964, companies and unions could do this
Chief Justice Warren E. Burger: Then you would agree with your colleague who just said that Congress could easily clarify this?
Mr. Gottesman: Well, no matter what this Court decides, Congress can easily clarify it if this Court's decision does not coincide with what Congress believes to be the right result.
The question is that at this moment in time with the statute now on the books, what can we discern to have been Congress has intent to date?
And as we read both the language and legislative history of Title VII, the decision that Congress made in 1964 was not to take the choice to have programs such as this from the private sector.
Now, we start with the language of the statute.
Section 703 (a) and (d) do indeed say that it will be an unlawful employment practice to discriminate against any individual in employment and in training.
And so I suppose the ultimate question is, what did Congress mean when it used the word “discriminate”?
Chief Justice Warren E. Burger: Under the present statute, could an employer lawfully announce and execute a program saying that he would hire approximately 50% people who had been convicted of criminal acts and were released either on preliminary parole or permanently released.
Mr. Gottesman: Well, this statute only prohibits discrimination on the basis of race, sex, national origin, and religion, Your Honor, so the employer is free to discriminate on other grounds.
Chief Justice Warren E. Burger: Within that range of 50% you would get a wide range of racial groups, no doubt wouldn't you and ethnic groups?
Mr. Gottesman: Sure, unless that would --
Chief Justice Warren E. Burger: You said, with no prohibition an employer could do that?
Mr. Gottesman: I would think unless it were a subterfuge for some type of invidious discrimination that this statute proscribes and --
Chief Justice Warren E. Burger: I must -- I was hypothesizing an employer who consciously and deliberately wanted to try to help rehabilitate people who had been --
Mr. Gottesman: There's nothing in this statute to preclude that Your Honor as I understand it.
Chief Justice Warren E. Burger: Any other statute that you know?
Mr. Gottesman: I can't say that I do but I don't want to have confidence that I know all the statutes that I know all the statutes that might come into play.
There is evidence in the legislative history that when Congress use the word “discriminate” in 703 (a) and (d) that it had in mind what some people have called in invidious discrimination not just the literal sense, every choice you make is an act of discrimination.
Congress talked about acts of ugliness, intolerance, bigotry, bias, prejudice, as the kind of acts which this statute was directed at.
But more than just there is an obvious ambiguity in the word discriminate in 703 (a) and (d) and you'd want to look to the legislative history in any event to find out what Congress intended.
Justice Potter Stewart: Mr. Gottesman, I know that your ultimate position is that this simply is not a violation of Title VII of the 1964 Act but isn't it despite what you just told us, isn't it on its face -- prima facie a violation.
It's an evident discrimination against white people, isn't it?
Mr. Gottesman: Well, it is a race conscious decision which --
Justice Potter Stewart: In training?
Mr. Gottesman: It requires the selection of blacks rather than whites in certain instances.
Justice Potter Stewart: Which is?
Mr. Gottesman: In the literal sense, it is discrimination.
As we said, --
Justice Potter Stewart: So what you said, I assume in a lawsuit would be defensive, wouldn't it?
And the plaintiff could certainly, be it Mr. Weber or any other life's similarly situated could bring a lawsuit.
This is a prima facie colorable violation and then what you said would be a complete defense, if you're correct.
Mr. Gottesman: Well, but one could say it that way, our -- the defense would be no more though than simply saying that we have a segregated workforce and we have adopted a quota which does no more than eliminate that.
Justice Potter Stewart: Precisely.
Mr. Gottesman: And that is not, once we've shown that, that is not discrimination as Congress intended that term.
Justice Potter Stewart: Well, it's not whatever it may be or may not be discrimination but it's not a violation of Title VII.
Mr. Gottesman: Okay.
Justice Potter Stewart: Is that it?
Mr. Gottesman: That -- that is correct.
Justice William H. Rehnquist: How much is left of McDonald then if your view would prevail?
Mr. Gottesman: McDonald prohibits the kind of discrimination against whites that Congress passed this statute to prohibit against blacks.
Acts of ugliness, intolerance, bigotry, bias, prejudice, and the legislative history shows and the legislative history from which this Court found in McDonald that whites would protect it.
Chief Justice Warren E. Burger: What you're saying is that, under your theory you can discriminate for good motives that count for bad motives?
Mr. Gottesman: Well, it's not so much the motive.
There are certain acts taken in certain circumstances which Congress did not intend to fall within the prohibition of the statute.
And I'd like tor turn, there is another provision on the face of the statute terribly important to that assessment and that is 703 (j), in which Congress said nothing in this Act requires an employer and the union to adopt the quota to eliminate racial imbalance.
Now, while it may not be definitive that it's worthy that way, it's hard to believe that the drafters of that provision if they thought it would be unlawful to adopt the quota of this type would have chosen the set of words, nothing in this Act requires an employer and the union to do it.
Chief Justice Warren E. Burger: Wouldn't it have been quite easy for Congress to express these concepts in the terms that I outlined in very rough suggestion of the statute?
Mr. Gottesman: It would have been easy, Your Honor.
It would have been easier for both us and the Court if they had done so.
But we suggest that indeed in the legislative history, the principle sponsors made clear that that is in fact what they intended.
Now, it's an important dynamic to understanding that legislative history that the balance of power here was held by a group of conservative congressman whose votes were critical and who normally were resistant to government regulation of business and to state it as the credo as really the price for their support for this bill.
But look, these are evils and we want to eradicate these evils and we prepared to vote with you to do so.
But we've got to do so with the minimum intrusion necessary upon management prerogatives and union freedoms.
And since this, what we are doing here was not the evil which was in Congress' cites when they enacted the statute.
It was not the view of these people that the freedom which employers and unions previously had to adopt the program like this was to be taken away.
And the most compelling evidence of that was the explanation provided by Representative MacGregor who was one of the leading House Members of the judiciary committee shepherding this bill through.
And these were his words spoken literally moments before the final vote on this bill.
Indeed, on the same day, that the bill was enacted and assigned by the President, he said the important is the scope in extent of this bill is it is also vitally important that all Americans understand what this bill does not cover.
And he then listed the areas of racial balancing in the public schools and preferential treatments are quotas in employment and I'm going to come back to that linkage.
And he said there is a mistaken belief that Congress is legislating in these areas in this bill.
When we drafted this bill, we excluded this issue.
And he went on to say these are controversial people --
Justice Byron R. White: Well, why did you answer me awhile ago the way you did that an employer with a racially balance workforce would be violating Title VII?
Mr. Gottesman: Well, I'm not sure I want to say that he would be.
What I want to say is --
Justice Byron R. White: Well you said he was, I asked you.
Mr. Gottesman: I may have overstated my view.
That is a completely different question from whether you can do what we're doing.
Justice Byron R. White: Maybe but the reason the words you're reading there read on my example too, don't they?
Mr. Gottesman: Well, except I think if I get to the end of the quote, what Congressman McGregor said was that Congress had spelled out.
The Senate had spelled out in 703 (j) our intentions more specifically.
And what 703 (j) said was not, did not address maintaining a racial balance.
It said nothing in this statute will require you to adopt the quota to eliminate a racial imbalance.
And so what Congressman McGregor was saying is that's the area we have carved out and left to the private sector.
We've done so not because we think its necessary good or necessarily bad, but because it's controversial and we decided not to take that choice away from where it previously recited in the hands of employers and unions.
Now, if I can be allowed, I know I'm at my end, 30 seconds to note the posture in which this case is really before this Court.
There's a lot of evidence and we've cited in our brief that Congress thought this to be a controversial issue and concluded therefore not to embrace it within this built.
To leave it where it had been.
There'd been a lot of briefs filed with this Court suggesting cutting lines why you should be allowed to have affirmative action in this circumstance but not that one, all very prudential lines but we submit not lines that this Court should be drawing but that Congress should be drawing.
Congress in 1964 said, private parties are free if they choose to have affirmative action programs.
If Congress becomes dissatisfied with what those private parties are doing, Congress is free to draw some lines.
But we submit, it's not for this Court to draw them, it's for this Court to discern if we've accurately read the legislative history that Congress made a deliberate judgment in 1964.
We shall not regulate.
This s not a bill to forbid affirmative action, this is a bill to correct some real evils that we found and we've got this other controversial question and we choose to live it for the time being where it was in private hands.
And on that basis, we submit all affirmative action programs of this type are lawful.
Argument of Lawrence G. Wallace
Chief Justice Warren E. Burger: Very well.
Mr. Wallace: Mr. Chief Justice and may it please the Court.
The United States agrees that the plan at issue before the Court is a valid plan but with -- there are many differences between our position and that of the union we just spoke.
We also agree that that the issue is a statutory issue of reconciling the broadly worded prohibitions of Title VII with the statutes remedial purposes and with its emphasis on voluntary compliance.
However, we believe it would be a mistake to read the language of Title VII as it was drafted in 1964 and snippets of the many thousand of pages of legislative history as dealing with the question of voluntary programs of this kind.
They were not in existence.
They were in a realistic sense to fire this thing from the mind of the draftsmen of Title VII at that time.
And while the case immediately concerns an issue of voluntary compliance program, the contentions that have been made before this Court cut much more deeply than that into the remedial fabric and effect of enforcement of Title VII.
The respondents and I regret to say, the petitioner union, are asking the Court in this case to repudiate the numerous federal court decisions over the years that have upheld the propriety of the ordering or numerical race conscious relief to rectify the effects of an employer's proven discrimination.
Justice Potter Stewart: Mr. Wallace, if we accept Mr. Gottesman's position on behalf of his client, we don't need to decide whether you're right or wrong as to the extent of this Court's remedial power, do we?
Mr. Wallace: It would be possible for the Court not to reach that issue.
Justice Potter Stewart: That would be, perhaps it will be proper for the Court to reach it.
Mr. Wallace: All of the parties are arguing on the basis of premises as to the symmetry or lack thereof between remedial orders litigated decrees, consent decrees and voluntary action can be undertaken.
Justice Potter Stewart: But that's precisely what Mr. Gottesman does not do.
He has choose all of that.
Mr. Wallace: Well, in his brief --
Justice Potter Stewart: If he's correct then the Court need not and probably should not reach the question of what a district court could do by way of a remedial order and need not and probably should not reach the question of the validity of the Executive Order.
Mr. Wallace: Well, in his brief he asks the Court to hold that the line of cases cited in footnote 14 of our brief on page 26 were wrongly decided.
Justice Potter Stewart: But it has nothing to do with his basic position, does it?
Am I or do I wholly misapprehend it?
Mr. Wallace: Well, I think that his position can stand without it.
Obviously, the result can stand without it because we argue for the same result.
However, the premise is that he was stating orally to the Court are not easy to reconcile with the first major decision of this Court under Title VII, Griggs against Duke Power Company which rejects the notion that invidiousness evil purpose is an element of the prohibitions.It seems to me a revision is view of all of the holdings under Title VII.
Justice William H. Rehnquist: Well, that dealt with testing, isn't Griggs?
Mr. Wallace: It dealt with testing but it said that even unintentional disparate of facts on racial groups can be a violation of the act despite complete lack of evil purpose, invidiousness, or any of the other terms that were just submitted to this Court as properly to be read in to Section 703 (a) and 703 (d).
Justice Potter Stewart: Well, let's assume this.
I think Mr. Gottesman accepted that this on its face is a gross violation of Title VII.
His claim simply is that he has a complete defense that on inspection, it turns out not to be a violation of Title VII.
Mr. Wallace: Well, we agree with the bottom line.
Yes, we --
Justice Potter Stewart: I mean on the (Voice Overlap) obviously are under the literal language of the statute if you will.
This is on its face a gross violation of Title VII.
But his position is that in this particular context, it turns out not to be a violation of the statute at all.
Mr. Wallace: But --
Justice Potter Stewart: And then if he's correct then what possible business is it of the Court's in this case to reach the question of what with appropriate remedy be in the event of a violation of Title VII.
And certainly, what business is of the Court in this case to reach the validity of the Executive Order.
Mr. Wallace: Well, it is difficult to decide the case in isolation from other holdings interpreting Title VII in a comprehensive way, I think it's quite true that narrowly speaking, the Court could avoid the question whether programs of this type could be approved in consent decrees, as they had in many cases or whether they could be ordered as remedies in litigated cases.
The question has been put the Court many times in petitions for certiorari arising from the Eighth Courts of Appeals that if it proved such relief and the Court has always declined to hear the cases.
Chief Justice Warren E. Burger: In Griggs, Mr. Wallace, did it not the Court note that there was no question about any bad faith or bad motivation of the employer?
And then on the contrary the employer had been conducting educational programs to bring its minority employees up to high school equivalence?
Mr. Wallace: That is correct.
Nonetheless, the employers have been found to violate the Act.
Chief Justice Warren E. Burger: The case turned on the impact not on the intention.
Was that not so?
Mr. Wallace: That is correct and the respondent here has submitted that the same type of prima facie case about impact on him through the use of a racial criterion that requires a response and that has been in our view rebutted by the circumstances in which this program arose.
And the reasons for which the program was adopted but I find it very difficult to reconcile with the interpretation of Title VII that this Court has adopted with the legislative history of the 1972 revisions to Title VII and the consistent views of the agencies that administered Title VII, the idea that this is not a prima facie showing of the violation of Title VII because it was not done with an invidious purpose.
And that the broad prohibitions are to be read more narrowly and that somehow by negative implication, every employer is left free which is the reading of Section 703 (j), as the Court has been invited to make.
Every employer is left free to achieve balance with respect to every element of his workforce by race or by sex.
And so that anywhere where blacks are overrepresented or women are overrepresented or men are overrepresented.
He's free to rectify that without any reasonable basis to think that he could be liable to an action under Title VII or that he might be violating the Executive Order program.
It seems to me that's what the Court is being invited to say and it goes far to it undermining both the subtle interpretation of the prohibitions what Congress was trying to do and the effectiveness of any possible enforcement.
It's -- the contention is that what the Court referred to an Albemarle Paper Company is the spur or catalyst that encourages voluntary compliance is to be removed and the Court is to take it on faith that employers like Kaiser will continue to spend hundreds of thousand of dollars even though there's no possibility that a court could order them to adopt a similar program and that unions will continue to agree to such program.
Justice Byron R. White: Are you arguing that this collective bargaining contract violates Title VII?
Mr. Wallace: The -- the contract is consistent with Title VII.
That is our view.
What I am arguing is that the interpretation of the union has asked this Court to make of Title VII with underlying effective enforcement of Title VII.
Now, it's possible as Mr. Justice Stewart has suggested for the Court not to reach that question.
But nonetheless, the interpretation that was just stated orally is one that's inconsistent with effective enforcement of the prohibitions of Title VII.
Justice William H. Rehnquist: But what you're saying is that in the case involving a voluntary agreement between management and labor, we should go ahead and decide what courts could if the matter were litigated in Court.
Justice Potter Stewart: And a violation was found?
Justice William H. Rehnquist: And a violation was found.
Mr. Wallace: There is a symmetry between of the relief that courts can order and of the voluntary programs that can be entered into.
Justice William H. Rehnquist: Why?
Mr. Wallace: Because otherwise, the use of a racial criteria and presents a problem.
Now, I -- the tener of the questioning is that somehow we are not supporting the validity of the program but are submission is quite to the contrary that the way in which we are supporting the validity of the program is a rational that will make it possible for such programs to continue in existence and to be expected to continue in existence.
Justice Byron R. White: For how long your submission -- for how long may the program?
Mr. Wallace: Well, this program has many features that are consistent with the proper remedial approach under Title VII.
It's a program that is finite and that it has a one for one obligation that will expire when the local workforce ratio is reflected in the plant.
In this case, it's 39%.
Justice Byron R. White: Under your view then, Mr. Wallace that when it reaches that -- when it finally does reflect the community or the composition of the workforce, may the company and the union then agree to maintain that balance, consistent with your position?
Mr. Wallace: Well, that would -- it create a difficult problem under Title VII that they would be turning away people from employment on the basis of their race.
Justice Byron R. White: Well, do you care to say yes or no, it would or wouldn't violate Title VII?
Mr. Wallace: Well, it's hard to say just on this -- on that bare hypothetical but I will say that if a person black or white is turned away from employment on the basis of his race because the employer wants to maintain a certain balance.
There has to be more of a justification than a negative implication right into Section 703 (j).
Justice Byron R. White: I take it your answer is that in your present submission is that that would violate Title VII?
Mr. Wallace: On the face, it's a prima facie violation and the rest it's justified there is a violation there.
Now, this program represents what to us is an example of the way Title VII should operate in a litigated decree or consent decree or a voluntary program.
Justice Potter Stewart: And after a violation --
Mr. Wallace: Whether in the case of voluntary program it is a reasonable basis to think that a violation could be shown unless something was done to rectify the situation.
Justice Thurgood Marshall: But then in both sides, it may have agreed that they were operating with the segregating workforce?
Mr. Wallace: Of course they did.
They agreed on this program and it was a reasonable program for them to agree on in the circumstances and I want to say why if I may.
We had here a situation where there was 46% local population -- 46% black local population, a local labor force that was 39% black.
And at the time this program was agreed to less than 2% of the skilled craft workers in this plant were minority.
And this has been changed in the statistics set forth in the appendix in the chart on page 167, as a result of the operation of the program this has been increased to 4.43% in a situation where not only the total workforce is 39% black but the figures that we have been able to glean from the census data show that even among skilled craft people in the area, you would expect 15 or 20% minority.
And a similar program was adopted that changed the representation in the plant as a whole from some 10% minority over a course of 5 years from 1969 to 1974 to 14.8% minority.
The program was one that was adopted in an atmosphere where the employer was definitely had a reasonable basis to think that he was subject to the making of a prima facie case that he was guilty of employment discrimination and as a matter of fact, the Parsons case brought against the neighboring plant of Kaiser's based on very similar statistics said the Fifth Circuit held that a prima facie case had been shown.
The actual selection of people under the program while it was 50-50 for the training program at the same time skilled craftsman were being hired outside the training program, 22 were hired that year.
Journeymen from the community at large of whom only one was black, 21 were white, seven blacks and six whites were taken into the training program so that altogether the entry into craft jobs under the program in its first year of operation was in the sense a rather modest.
It was about 23% minority.
The program offered new opportunities for white workers to enter the crafts.
It did not in anyway abrogate established seniority rights.
You don't have the problem under 703 (h) that you had in the Teamsters case here.
Chief Justice Warren E. Burger: You covered all that in your brief now, I believe.
Mr. Wallace: Yes, and we believe that this program should be upheld as a reasonable response to the situation that the company and union were in.
Justice William H. Rehnquist: Mr. Wallace supposing that the respondent, the plaintiff here had come in the Court alleging the same facts as he did in this case.
I take it under your view, the company -- neither the company nor the union would be entitled to summary judgment or motion to dismiss.
They would have to come up with some evidence.
Mr. Wallace: That is correct.
Justice William H. Rehnquist: Now, what -- give me an example of what sort of evidence, what tangible types of evidence they could come up with that would meet the case?
Mr. Wallace: The very kind of evidence that I've been pointing to meets the respondent's case here.
And was your question related to a complaint by a minority worker?
Justice William H. Rehnquist: Well, the -- the complaint in this case.
Mr. Wallace: The complaint in this case is the very evidence that I've been pointing to of the vulnerability of the employer to a suit.
Now we don't have in this record --
Justice William H. Rehnquist: Well, how would you produce -- do such an evidence in Court?
I mean you are the lawyer for the union or the lawyer for the company.
How do you show in Court in response to a point is that you're “vulnerable” to a suit?
Mr. Wallace: Well, the evidence was produced here Mr. Justice.
Witnesses for the company testified that they were concerned about compliance with the Executive Order program and about the possibility of lawsuits that lawsuits had been brought elsewhere.
The statistical evidence was introduced that I just reviewed that showed a sufficient disparity to itself be a prima facie case under this Court's holding in Dothard against Rawlinson, so that the evidence was actually in the case.
This is an example of how the evidence can be shown that does rebut a prima facie case and our view is that a prima facie case was rebutted on this record.
And that was the reason why the program should be upheld.
Argument of Michael R. Fontham
Chief Justice Warren E. Burger: Thank you, Mr. Wallace.
Do you have anything further Mr. --
We're not ready for you yet Mr. Powers.
Mr. Fontham: Mr. Chief Justice and may it please the Court.
My name is Michael Fontham and I represent the respondents in this case, Brian Weber and the Class of the non-minority employees at the Kaiser Plant in Gramercy, Louisiana who were eligible to bid for on-the-job training programs.
The issue present in this case is not the issue stated at the beginning of the argument.
But instead as whether a company in the labor union may institute a 50% racial quota for entry into craft training program that discriminates against non-minority employees and prefers minority employees solely to achieve a certain statistical ratio and in the absence of any past discrimination by the company or the union, against the preferred individuals, and in fact in the absence of any past discrimination at the plant in question.
In the course of argument, I would like to first of all address three factual areas which I think are of concern and have not adequately been covered discussed the law if I have an opportunity to do so and some of the arguments raised by my opponents.
First of all with respect to the facts, I think it's important to note what the operation of the quota was in this case because Kaiser and the union have instituted training programs in the past and the basis for entry into those training programs in additional to the skills required or the absence of physical handicaps was seniority.
And that seniority criterion was a plant-wide seniority criterion at this plant available to all individuals whether they were white or black or other minority whether they were male or female.
Every person who was hired at the gate at the Kaiser plant of obtained his or seniority status and was treated equally with respect to that seniority system.
But with respect to the craft training programs and I might add, that the union had been negotiating for its members to have this training opportunities.
The members of the union were unskilled laborers at the plant and the opportunities presented by the training programs were considered very important by these persons.
An opportunity to advance, to learn a skill, which skill can be obtained only after years of training and schooling.
And so it was very important to this people who thought that they could obtain higher wages, better working conditions and even more importantly more security.
But in addition to this seniority criterion for entering into the training programs, Kaiser and union imposed a 50-50 racial quota which said that for every non-minority individual who entered a training program, they must take a minority individual so that if --
Chief Justice Warren E. Burger: I don't understand that there is any challenge to the idea that this is quota program.
Mr. Fontham: Yes, Your Honor.
It certainly is a quota program.
Chief Justice Warren E. Burger: Then I have misread some of the briefs here.
Perhaps I'm confusing the union's brief here, with some of the unions' amicus brief --
Mr. Fontham: Your Honor, I think that the only difference is that some of the parties choose to call the quota a race-conscious program.
But the fact is that the means of applying the race consciousness is a 50-50 numerical ratio which has the effect of actually segregating the seniority lines.
Making an all white seniority line and all men are the seniority line and for entry into the training programs choosing the top person from each seniority line.
But which also has the concomitant effect of advancing members of minority groups over whites in the seniority line because they were more seniority whites in the seniority line.
Justice Potter Stewart: Mr. Fontham there is a -- these briefs both of the parties and amici are sprinkled with euphemisms but we can't decide this case on what something is called rather than on what it is.
Mr. Fontham: Absolutely Your Honor, and I think that --
Justice Potter Stewart: And I don't think there's any equating the question of the Chief Justice as any real question or controversy here as to what this program is and what it provides.
Mr. Fontham: Yes, Your Honor.
The point that I'm trying to make Your Honor is that the effect of the application of the numerical ratio was to take away --
Justice Potter Stewart: Discriminate against some white people.
Mr. Fontham: Take away not only to discriminate, Your Honor but in addition to take away and devalue accrued seniority rights.
Justice Potter Stewart: Yes.
Mr. Fontham: They had been built up over years of service to Kaiser by these employees.
Justice Potter Stewart: Yes, I don't think there's any service of opinion to the --
Justice Thurgood Marshall: How many years?
Mr. Fontham: Your Honor?
Justice Thurgood Marshall: How many years was Weber there?
Mr. Fontham: Your Honor, Mr. Weber personally had been employed at the plant I believe since 1968 or 1969.
Justice Thurgood Marshall: That's a long line of seniority you're talking about.
Mr. Fontham: Yes, Your Honor but the seniority system --
Justice Potter Stewart: (Voice Overlap) there in any event Mr. Fontham that even if Mr. Weber had not been accepted in this program because he might have, there might have been white people of more seniority than people of more seniority.
The fact is that some people were excluded from acceptance because they were white and I think that's --
Mr. Fontham: That is correct, Your Honor and they are plaintiffs.
Justice Potter Stewart: I think there is no controversy about that.
Mr. Fontham: That's correct.
Secondly, I'd like to address the question of the supposed or alleged prima facie case --
Justice William J. Brennan: (Voice Overlap) you opened by saying that you did not think the issue is the one that phrase at the outset of this argument?
Mr. Fontham: Yes, Your Honor.
Justice William J. Brennan: I don't quite understand that.
You do agree, don't you, that the only question here is whether this program is prohibited by Title VII?
Mr. Fontham: Absolutely, Your Honor but --
Justice William J. Brennan: That's the only question here?
Mr. Fontham: Yes, Your Honor, that's correct.
Justice Harry A. Blackmun: I didn't understand what you meant when they said (Voice Overlap).
Mr. Fontham: Well, Your Honor, I was simply saying that I didn't -- I would phrase it differently than the way Kaiser's attorney phrased it.
Secondly, with respect to the question of alleged or assumed or I believe the word that is used in this case is arguable past discrimination because the important, I think the important fact with respect to the record is that two courts have already held that there was no past discrimination in Kaiser.
Justice Thurgood Marshall: And what evidence was there on the other side?
Mr. Fontham: Your Honor, the union --
Justice Thurgood Marshall: There was no evidence, was there?
Who -- who put on evidence about on behalf of the Negroes involved here?
Mr. Fontham: Your Honor, the union attempted to prove.
Justice Thurgood Marshall: There was no evidence.
Who represented them?
Mr. Fontham: The black in place at the plant, Your Honor?
Justice Thurgood Marshall: The union represented both Negro and white.
Who represented the Negro?
Mr. Fontham: Your Honor, there -- there were no interveners if that's the question.
Also this Your Honor, that every pleading in this case was sent to the National Office of the Equal Employment Opportunity Commission --
Justice Thurgood Marshall: All that I'm talking about is the findings at these two courts.
It wasn't based on testimony?
Mr. Fontham: Yes, Your Honor, it was based on testimony.
It was based on an analysis --
Justice Thurgood Marshall: By whom?
Mr. Fontham: Testimony of the Kaiser officials.
Statistics with respect to what the work laws were comprise of.
Justice Thurgood Marshall: Do you expect Kaiser to come in and say they openly discriminate against Negro?
Mr. Fontham: No, Your Honor.
I don't expect them to say that.
But I do know that --
Justice Thurgood Marshall: Who would you expect to say that?
Mr. Fontham: The union tried to say that the District Court, Your Honor.
The union filed two briefs on the issue and filed another brief on the issue in the Fifth Circuit.
Justice Thurgood Marshall: Excuse me sir, my question was not brief, it was evidence.
Mr. Fontham: Well, Your Honor.
Justice Thurgood Marshall: Testimony --
Mr. Fontham: It's the same --
Justice Thurgood Marshall: No, the normal evidence.
Mr. Fontham: Your Honor, it's the same argument that the Government raises in this case the asserted statistical disparity which I would like to address.
What I do think, Your Honor that the fact, the question of Kaiser's past employment practices was covered at the trial.
The evidence established that Kaiser would have a plant-wide seniority system and that the seniority system granted seniority rights to minority group.
Justice Thurgood Marshall: The 2% of its employees.
Mr. Fontham: No, Your Honor to all employees.
Justice Thurgood Marshall: 2% of its employees were Negroes, right?
Mr. Fontham: No, Your Honor just simply in the crafts.
In the crafts --
Justice Thurgood Marshall: Well, that's what we're talking about.
Mr. Fontham: Yes, sir.
Well, Your Honor, no --
Justice Thurgood Marshall: With this seniority the 2%, they were craft.
Mr. Fontham: 2% of the skill craftsmen at the plant --
Justice Thurgood Marshall: And that's who they gave the seniority so far as the Negroes of this place?
Mr. Fontham: Well, Your Honor the seniority system was applicable with respect to the unskilled laborers at the plant.
I -- the craft positions of the plant are in a separate category and 2% of the persons in the craft positions were members of minority groups but the record establishes that Kaiser attempted a number of affirmative action measures prior to the institution of this racial ratio to try to obtain more minority craftsmen.
Kaiser had a separate craft application filed that was blacks only and went to that craft application file first whenever an open occurred in the craft petitions.
Justice Thurgood Marshall: They couldn't find the 2%.
Mr. Fontham: Yes, Your Honor.
Kaiser advertised in minority -- predominantly minority newspapers in the area.
Kaiser attempted the establishment of goals of timetables in conjunction with the requirements of the office of federal contract compliance and the fact was in the evidence in this case establishes that persons who were treating craftsmen with the requisite skills were not available in the area and that in fact the statistical utilization if I can use that term.
A minority craftsman in the Kaiser plant was no smaller than the availability of craftsmen in the workforce at large.
The simple fact is that for reasons of -- whatever reasons exist, societal discrimination or whatever either reasons but minority craftsmen with the requisite skills were not available and Kaiser was not able to get them.
And as a result of that fact, even though Kaiser --- I believe Judge Wisdom's opinion said that Kaiser had made good faith efforts, a laudable efforts to try to seek and find minority craftsmen.
But here they're not able to do so.
So the record reflects that there was not past discrimination.
Judge Wisdom indicated, although he would draw some different conclusions about possible arguable discrimination based on pure statistical data and in fact comparison not of persons with the requisite skills but a different comparison that he conceded that the findings of the District Court would not be overruled under the applicable standard of review of those findings.
And the evidence in this case, Your Honor, we did go into the evidence about whether or not Kaiser discriminated in the past.
I think if you heard the Director of Equal Employment Opportunity Affairs with Kaiser in his statements on the question of race relations, in United States, you would have found the huge and very sincere and forthright and honest individual and spoke very convincingly.
Justice Thurgood Marshall: Do you assume I didn't read it?
Mr. Fontham: No, Your Honor I don't assume that.
I said heard it and I think that that does make a difference because this was to me impressive.
But I think that the important thing that has to be remembered is that this was not -- the evidence is unambiguous with respect to why this was done.
It was not done as an assertive remedy.
This was done because Kaiser felt the need under OFCC requirements or whatever to voluntarily take action to change the statistics.
The fact is that Kaiser knew very well that minority craftsmen were unavailable and they were not under utilized if the comparison was pertinence with the skills.
But Kaiser knew that the Government might say that you have to compute the 2% to the overall general availability of minorities which were 39%.
So Kaiser said we've got to change the ratio and what they did was they imposed this 50-50 ratio for selection as a means of achieving an overall 39% representation.
Justice Byron R. White: Mr. Fontham.
Mr. Fontham: Yes, Your Honor.
Justice Byron R. White: Let's suppose that just on the figures or on the statistics a plaintiff -- a black plaintiff could have made out a prima facie case that would have required Kaiser to put on some evidence.
That wouldn't make any difference in your --
Mr. Fontham: It would not Your Honor.
But I think that I want to make a point as strongly as I can that we're not talking about even that situation, that the fact is whether it would make a difference or not is not important here because Kaiser never undertook an analysis at the Gramercy plant.
Justice Byron R. White: Well, I know but --
Mr. Fontham: We found that there was --
Justice Byron R. White: He promised to agree with you on that but as I understand your position, it wouldn't make any difference --
Mr. Fontham: Well, Your Honor, I don't think --
Justice Byron R. White: (Voice Overlap) in this program and if Kaiser sat down with his lawyers and they look over the situation and in their opinion a prima facie case of discrimination could be made out.
You would still say that this response would be illegal under Title VII.
Mr. Fontham: Absolutely, Your Honor.
I think that with respect to your earlier statement, Your Honor, the statement made by my opponent is rather artfully worded and it says that Kaiser could have believed.
It -- it doesn't say that Kaiser undertook an analysis and made that determination.
Justice Byron R. White: No, they freely denied that -- freely they refused to admit that a prima facie case could have been laid down.
Mr. Fontham: Yes, Your Honor and he couldn't have.
If you use the persons with a requisite skills in the labor force, the only way that you could have made out a prima facie case in this instance would have been to compare the statistics for skilled craftsmen which the National Bureau of Apprenticeship says can take up the five years of training in and schooling and which Kaiser spent $15-20,000.00 per year per person in the training programs including on-the-job training and significant schooling.
If you took that statistics the 2% and compared that to everybody in the labor force who was a member of the minority group, you could have a prima facie case but this Court said you're not suppose to that.
I believe it said that and instead that the applicable comparison even if you're trying to show a prima facie case is present with the requisite skills so you would compare lawyers in the law firm with persons who have a law degree and are qualified to be a lawyer or doctors in a medical clinic with persons who are qualified to practice medicine in making a determination of whether the employer had discriminated.
But in this case, what the company and the union did was they set their goal which is what they call it as the ultimate place to which they wanted to go.
Justice William H. Rehnquist: Mr. Fontham, let me interrupt you just a minute.
As my Brother Stewart has said the case and the briefs in the arguments are sprinkled with euphemism you have used the term remedy once and your brothers and sisters have used it and you now used the term goal.
What do you mean by remedy and what do you mean by goal?
Mr. Fontham: Okay, Your Honor, let me say, hopefully I said this was not a remedy.
I did use the term remedy and when I say remedy, this is what I mean.
I mean that you have an individual like this Court has said in numerous several occasions and you assertedly or allegedly or even you may admit that you've done something to that individual.
And therefore, you remedy that by returning that individual to where he would be, may pay him some money, or you may put him in his rightful place in the seniority line or whatever.
I think that it is incorrect to say that and I think that it's very unfortunate that the argument is being made here that because a person is a member of a minority group that someone can assert or allege that you did something to “X" and then you can grant a preference to a totally different individual “Y” and say that was a remedy.
Justice William H. Rehnquist: When you use the word remedy, do you mean you suddenly claim that a particular individual had against you for damage that you had done to him?
Mr. Fontham: Yes, Your Honor.
But I mean it doesn't have to be in the legal technical sense necessarily.
I -- I just think that the word remedy has to be confined in the individual as oppose to a class.
It's -- it's not remedial.
If somebody says that somebody in a class was discriminated against and we pick out people that every one in this case concedes were not discriminated against.
Even the Government says, they're not identified victims of past discrimination.
Justice Byron R. White: By Kaiser?
Mr. Fontham: By Kaiser, yes, Your Honor that's true.
And grant them preference.
Justice Thurgood Marshall: Who was this that agreed that they weren't the victim or anything?
I mean, did they go to schools in Louisiana?
Mr. Fontham: Yes, Your Honor.
There's no doubt and I fully concede that societal discrimination has occurred with respect to blacks in this country and particularly in Louisiana.
Justice Thurgood Marshall: I thought you did (Inaudible)
Mr. Fontham: Well, Your Honor, I think but --
Justice Thurgood Marshall: I remember what you said before.
Mr. Fontham: We have in this case what is happening and what we object to is that the company and the union and the Government is assumedly have decided that the social goal which I think is a lot of social goal, uplift minority groups should be achieved.
But what they decide -- how they decided to do it is to have the unskilled labor force.
Justice Thurgood Marshall: Did Congress also decide that in this bill?
Mr. Fontham: No, Your Honor.
In my opinion, --
Justice Thurgood Marshall: They did not?
Mr. Fontham: Well, Your Honor, yes they did in the sense of eliminating barriers.
Do not discriminate in the future is what Congress said and this is what Your Honor said in McDonald that no discrimination can occur against any individual on the ground of race and I think Your Honor that Congress has said that affirmative action can be taken to break down barriers, to allow everyone an equal opportunity.
Justice Thurgood Marshall: By them?
Mr. Fontham: Your Honor?
Justice Thurgood Marshall: Yes, sir.
I said you said McDonald.
In my book, McDonald doesn't help you.
Mr. Fontham: Well, I'm very sorry to hear that, Your Honor.
Justice Thurgood Marshall: Believe me, it said so.
Chief Justice Warren E. Burger: Mr. Fontham, you perhaps, do you have in mind the hypothetical amendment to Title VII that I outlined to your friends in their oral argument?
Mr. Fontham: Yes, Your Honor.
Chief Justice Warren E. Burger: Do you agree that if Congress passed such an amendment or such a statute that an employer could proceed to try to achieve racial balance by programs of this kind?
Mr. Fontham: I think, Your Honor, that the obvious question would be state -- whether there were federal government or state action that might create a constitutional problem but in the absence of that --
Chief Justice Warren E. Burger: Well, (Voice Overlap) just passing statutes, state action?
Mr. Fontham: Well, Your Honor, the question is would the Office of Federal Contract Compliance be enforcing it but if it's not, if Congress wants to return the situation to pre-1964, I think you're absolutely right.
They could do that and employers and unions could try to achieve social goal with race discrimination.
I certainly hope that Congress doesn't decide to do that but I think Congress is definitely as of now decided that there should be no race discrimination.
And what I was going to say previously is that what Kaiser and the union and the Government have apparently have decided to do in this case is to achieve the social goal which is quite laudable.
But by the same token, Kaiser is not paying the cost nor is the union.
Instead the entire the cost of this program is placed on the shoulders of the non-minority group members and the unskilled labor force at Kaiser.
And these persons, with respect to these persons, I don't even think that the word remedy in the broadest sense could be applied because they work side by side with the minority group members.
They have the same skills.
They have the same economic standing.
They have the same seniority rights.
They have the same opportunities to advance within the plant and yet the non-minority group members find it the company post bids with one of the bids saying that for this opportunity it won't be seniority but it would instead the sole criterion will be that only a member of the minority group can apply.
And with respect to other bids, that it's not seniority but that at least half of the persons that we're going to select would be members of minority groups and say that there are one means of advancement within this plan, under the company union agreement, seniority is accrued after years of service to the employer in the union and is the most really, I think even this Court has said the most fundamental kind of important right for a person who works in the labor force such as this taken away that the accrued rights of the non-minority employees are simply taken away and race becomes the factor for determining who enters into the training programs superimposed upon the seniority system.
And it is, I think in view of this Court's decision in the Teamsters case where even in the case of the –- a finding of past discrimination and even in the case where you're talking about a fair degree of clarity that the persons being preferred had been discriminated against in the past.
The Court is saying, only with respect to the individuals that Government must bear its burden of proving that the individuals here by preponderance of the evidence but that the individuals had been discriminated against in the past.
In -- in this case we have a pure out and out preference being granted to members of minority groups.
We feel that under the cases decided by this Court and under Title VII, this is illegal.
Title VII says in Section 703 (a) and I will discuss the legislative history, in fact maybe I should do that first, I think that the inferences drawn by the union in this case are very difficult to adopt.
I think that the union's brief demonstrates very, very substantially that there was nothing sporadic and there was nothing infrequent about the statements of the supporters of Title VII with respect to the issue of quotas, with respect to the issues of preferences and of achieving racial balance.
The fact is that what happened when Title VII was passed was that the opponents got up and they began making claims which were regarded almost as outrageous by these supporters and the claims were, well, this would permit quotas to advance minorities.
And Senator Humphrey saying a quota would violate Title VII and upon the same, this would permit attempting to achieve a racial balance and Senator Williams and Senator Clark and Senator Case, the persons who are really behind say no, Title VII says no discrimination against anyone whether he be a member of a minority group or a member of a non-minority group and just as we the legislative history of Title VII, I think that this is the thing that comes through the most fully.
In fact, the union was able to find 90 pages or 80-some pages of legislative history all in the same subject and all of them expressing the same thing the opponent is saying you could have ratios.
The supporters saying this is a non-discrimination statute that has prospective effect that will allow the breaking down of barriers.
And then if you would say Section 703 (j) says you can't require quotas, they will put that in there because the opponents were saying some government agency is going to require quotas which that's what Kaiser and the union, thought the Government was doing in this case, and the supporters saying they can't do that.
It would violate Title VII.
And in -- so what does the statute say that's applicable to this case.
It says that there can be no discrimination against any individual with respect to their employment opportunities on the ground of race, color, sex, national origin, and the other factors.
And Section 703 (d), what does it say?
Because it's very important with respect to this argument, this is a new program and it gave opportunities to everybody.
Well, the fact is that Section 703 (d) says that a company or a union or a joint labor management command may not discriminate against any individual with respect to entry into training programs or with respect to the terms and conditions of training and opportunities provided under training.
And I think from my own standpoint at least, the Court's decision in McDonald answered any ambiguities about construction of Title VII.
McDonald came out of the Fifth Circuit.
The Fifth Circuit had dismissed the case of a white individual who allegedly had been stealing and assertedly some minority employees were not dismissed and the case was kind of decided by the Fifth Circuit in a fussy manner that left it open whether the white individual had any cause of action, one.
And number two, whether the same standards were applicable to the claim of the white individual because he might have construed the Fifth Circuit as having said that well there is a cause of action but your review is different because possibility of invidiousness or nastiness of the discrimination.
So the case was brought up here and the Court said that first of all a white individual does have a cause of action under Title VII and secondly and most importantly, the same standards are applicable as if that white individual were a member of the minority group.
And if you apply the same standards to this case, what if Kaiser and the union imposed a discriminatory quota against members of minority groups to achieve what they thought was a desirable ratio in the workforce.
Justice Potter Stewart: I think that's not the union's position but I think the union's position would be that if there is a conspicuous disparity in the workforce and then that 90% or 95% or 98% of the craft employees were Negro and only 2% white, I think as I understand the union's position, it would be that the employer and the union could cooperatively and voluntarily agree to put in this kind of a program until a more representative workforce were in placed.
Mr. Fontham: Yes, Your Honor but I think --
Justice Potter Stewart: Did you understand it the same way?
Mr. Fontham: Well, I'm not sure I --
Justice Potter Stewart: That's the way I understood it.
Mr. Fontham: To me there were differences between what the union argued in oral argument and in the brief but I think Your Honor that --
Justice Potter Stewart: Certainly, the difference is between the union's position and the employer's position and the Government's position.
Mr. Fontham: No doubt, Your Honor.
Justice Potter Stewart: That's very clear.
Mr. Fontham: I think, however, that if the union and the company did that, there's no doubt that if it discriminated against Negroes or other members of minority groups, it wouldn't last a minute in this Court or any other court, federal court virtually.
Justice Potter Stewart: You know more than I do, if you will.
Justice William H. Rehnquist: Mr. Fontham, --
Mr. Fontham: Yes, Your Honor.
Justice William H. Rehnquist: What's your answer to the union's argument that 703 (j) when it says that nothing contained in this subchapter shall be interpreted to require any employer.
Attaches special significance to where it require and by implication permits if although it does not require it.
Mr. Fontham: Yes, Your Honor.
I think that in the first place, that's solely inference.
If Congress had wanted to say it's permitted they could.
In the second place, you cannot possibly read that provision in conformity with Section 703 (a) and Section 703 (d).
The requirements saying that there has to be none discrimination against anyone because if as long as the attempt to achieve the racial balance discriminates against any individual then it would be wrong under Title VII.
I think also that the union's argument really refers to the fact that the supporters of Title VII finally said if the opponents are going to say this and say this and say this, we'll just put a provision in the statute about it.
And if you read the newsletter or I don't know exactly the term that you use but when Mr. -- Senator Humphrey explained it and explained what Senator Dirksen wanted, they said this does not change the substance of the statute.
What we are doing is we are trying to simply answer the contention that this would be required by the Government or it could be required by the Court.
Justice William H. Rehnquist: You say in effect that the explicit language of (a) and (d) prohibits the drawing of the implication that the union draws from?
Mr. Fontham: Yes, sir.
Yes, Your Honor.
I think also the decisions of this Court if pretty much precluded drawing that inference because the decisions of this Court have indicated that you cannot discriminate against individuals.
Justice Byron R. White: Mr. Fontham, I take it, Title VII now applies to local governments, I take it?
Mr. Fontham: Your Honor, it applies I know to state and local governments and I'm not sure about the extent to which it applies to the federal government.
Justice Byron R. White: Well, to state and local government --
Mr. Fontham: Yes, Your Honor.
Justice Byron R. White: -- it does.
Would it -- suppose a school district or had decided to integrate its faculty or to have racial balance in its faculty.
They were going to just voluntarily decided to have racial balance in their schools and voluntary, have racial balance in the -- among the faculty?
Mr. Fontham: Yes, Your Honor.
Justice Byron R. White: I take it your position would be that that would violate Title VII in so far as the faculty was concerned.
Mr. Fontham: Yes, Your Honor, because this Court had said so.
In the Furnco Construction Corp. against Waters case, it is clear beyond cavil that obligation imposed by Title VII to provide -- is to provide an equal opportunity for each applicant regardless of race without regard to whether members of the applicants' race are already proportionately represented in the workforce.
Justice Byron R. White: The -- the union argues that there's a tie between Title IV and Title VII, and that in the Title IV discussion it was perfectly clear that Congress wasn't objecting to voluntary decisions of school boards to integrate their faculty this way.
Mr. Fontham: Your Honor, I am -- I have to admit that I did not read all the legislative history of Title IV.
I don't think that the fact that they were passing Title IV at the same time, they were passing Title VII, however, would be a valid ground for this it seems to me extremely tenuous inference drawing from language that on it's face, actually like its on my side that you can't require racial ratios in the workforce and it seems to me as well to say --
Justice Byron R. White: You can't avoid -- you can't avoid discrimination by discriminating.
Mr. Fontham: Yes, Your Honor.
Justice Byron R. White: Thanks very much.
Mr. Fontham: I think so.
I think also the other -- some of the other decisions of this Court support our side of this case.
The decision of the Court in Griggs against Duke Water indicates specifically stated that preferences in what we're talking about here is a preference that discriminates to any group minority or majority is exactly what is proscribed by Title VII.
The decision of this Court in the City of Los Angeles against Manhart, I think is very important because in that case, although it wasn't a race discrimination case, the Court stated that the emphasis in Title VII is with respect to the rights of the individual and that it's made it clear that these rights are personal rights.
And what we have in this case is this asserted justifications being brought up on a class basis in which the minority classes are amorphised and made into non-individuals.
In the sense where -- when you have preferences being granted to individuals, the claim is made that these are remedies because they are members of the class and yet at the same time we have very overt discrimination against white workers that has the same kinds of economic impact or frustration or raising potential loss of the opportunity to advance that 20, 30, 40 years ago was the rule for the minority group members in this country.
And for that reason, we think that decision is important, very important to this case.
The emphasis should be on the individual.
In the Teamsters case, this Court made it very clear that the emphasis is on the individual that we cannot have in this country decisions that are made on the basis of race or class, at least as long Title VII is operative that when the Government came in, in Teamsters and said, well, we had a fair degree of specificity here, why don't the Court just say they're all members of the class and its okay to grant them a remedy.
The Court said, prove that they were discriminated against in the past on an individual basis.
And this is, one thing that isn't present in this case conceded by everyone, none of these persons had been discriminated against in the past by Kaiser.
Instead they had equal rights with the non-minority members of the unskilled labor force.
Equal rights to advance, their seniority status was the same as everyone else's except in some cases they have been working at the plant for less time.
But where Kaiser and the union did was, they said that the persons who had been working at the plant for more time who had accrued economic expectations, we have to step back because Kaiser understood that the Government wanted to achieve this social goal and Kaiser was going to help the Government do it and by placing all the cost on its workers rather than any of the cost on itself or any of the cost on the union.
I think that this in other factor that is very important that should be answered, these pieces of voluntary compliance.
The one thing I think that the Court does not want to do is to allow employers and unions be the arbiters of what Title VII means.
Because the one thing you can expect the company to do and the union to do, just naturally, and I'm not trying to say that this is done in wrong, I mean with the wrong intent or whatever but the fact is that if they can put the cost elsewhere, they will.
And in this case, that's what happened.
They put the cost elsewhere.
And even if you assume that there was an arguable case, if it cost on the unskilled labor force, who themselves had no training skills, who themselves have never been to a training program, who themselves have never been to a training program, who themselves have never been in a construction union.
Justice William H. Rehnquist: Of course if there was an arguable case, the entering into this program would not have prevented any of the plaintiffs in that arguable case from suing Kaiser or the union.
Mr. Fontham: I think that's correct too, Your Honor.
There -- I think the one thing that the courts would not do is say because there was an asserted remedy which in fact was a preference to one member of the minority group that another individual who was actually discriminated against was barred from suing.
Justice William H. Rehnquist: So in that sense, neither Kaiser nor the union by entering into this agreement immunize themselves from suits for actual discrimination.
Mr. Fontham: That's correct, Your Honor, but what they immunize themselves from was harassment or in their view, harassment by the Office of Federal Contract Compliance.
In other words, the compliance officers under the federal contract program require this utilization analysis which focus on the statistics and if the statistics are low, then the possible things that can happen are the lost of federal contracts and reporting you to the Justice Department and Publication of the company's name and even this matter which all the company lawyers think is the denial of due process, the absence of the hearing on the debarment from future contract opportunities, and this is what they avoided.
It really didn't have anything to do with litigation at Gramercy.
There may have been some litigation at some other plants but the main thing that they were trying to do is getting compliance with the OFCC.
Now, what they did was they went even beyond what the OFCC has ever required and actually instituted a quota that took away accrued seniority rights.
All that the Government has ever said that it's for previous to today is these goals and timetables and if you read the back of the Government's brief in this case you'll find that you know they even say that were quotas aren't good.
And if you read what the EEOC said when they issued their guidelines they said, “Huh, somebody thought that when you said numerical ratios in our preliminary guidelines that we meant quotas but we really didn't” so they deleted it.
So I think that this is important too cause everybody says to me, well is this the end of affirmative action if whoever wins this case.
And the fact is that affirmative action has never gone so far as Kaiser and the union wanted to go in this case.
The Government has not said that quotas are alright.
Certainly, nothing ever fixed the rigid nature and in enforcing its affirmative action programs in addition to that the taking away of accrued rights has been stayed away from by the courts.
Even when you have these instances of terrible refusal to comply with the requirements to breakdown barriers at the entry level sometimes, the lower courts has said, "Well if the state police just won't comply, we'll make them higher a certain percentage for a while but they have stayed away from doing that.
With respect to accrued rights and that's what in the case where there is a violation of Title VII.
But in this case, they go beyond any type of an affirmative action measured that's been used in the past and admitted to be used, a quota that takes away accrued seniority rights and that is in the absence of any past discrimination and I think if the Court rules in favor of my side in the case, it doesn't change anything in terms of affirmative action actually or substantively.
On the other hand if the Court says that a company and the union or the federal government can require quotas, 50-50 racial quotas and as in this case that quota can discriminate against whites and take away their accrued rights and the sole purpose of the quota is to achieve the statistical parity and in this case, if Your Honors will review the record you will find that even after they achieve the 39% representation in the workforce, that they will then use the quota of how many minority group members are in the workforce at large indefinitely in order to keep in the crafts in perpetuity the exact statistical percentage of the minority group representation in the population at large --
Chief Justice Warren E. Burger: But we're not worried about that in this case, do we?
Mr. Fontham: Yes, Your Honor, that's what we do.
Chief Justice Warren E. Burger: Well, we don't have to decide that in this case.
Mr. Fontham: Well, I think Your Honor that I --
Chief Justice Warren E. Burger: You're projecting into the future.
Mr. Fontham: Yes, Your Honor, it is projecting in the future but I think what I want to say is that if the Court were to say that's alright.
I think that there are agencies poised to enforce that decision and that it may very well be that while the Government has not wanted to overtly say that in the past because of what Title VII says that it's possible and very likely in fact and specially in view of the proposed EEOC Guidelines that were later changed that the Government would require every contractor in the nation to achieve this kind of statistical parity to have a perfectly proportionate representation in the workforce at large on a basically a national scale which –-
Justice Potter Stewart: Oh that would depend, the validity of that would depend upon the meaning of subsection (j), wouldn't it?
Mr. Fontham: Well, Your Honor, I think the meaning of that --
Justice Potter Stewart: Isn't that correct?
Wouldn't it -- wouldn't that question whether the validity of that would depend would it not upon what is prohibited by subsection (j)?
Mr. Fontham: Well, I think subsection (j) would indicate that --
Justice Potter Stewart: Now, yes but that would be the question, wouldn't it?
What does subsection (j) --
Mr. Fontham: Yes, Your Honor.
Justice Potter Stewart: We don't have the meaning of that prohibition here because Government has not
Mr. Fontham: Yes, Your Honor.
Justice Potter Stewart: -- sought to impose this --
Mr. Fontham: I think --
Justice Potter Stewart: -- isn't that correct?
Mr. Fontham: I think in this case what you have is what the Government requires is the employee to do its self-analysis.
So the Government doesn't actually say that the company --
Justice Potter Stewart: But you conceded that this was a voluntary action between the lawyer and the union?
Mr. Fontham: Yes, absolutely.
I agree, Your Honor.
Justice Potter Stewart: Therefore, there's been no directive or prohibition or requirement by any agency of Government in this case, isn't that correct?
Mr. Fontham: That's correct, Your Honor, that's what I thought.
I do think though --
Justice Potter Stewart: And subsection (j) only has to do with what may not be required by Government, isn't that correct?
Mr. Fontham: Yes, that's correct.
Justice Potter Stewart: And this case doesn't stem from anything that was required by Government, correct?
Mr. Fontham: Well, the --
Justice Potter Stewart: It was voluntary.
Mr. Fontham: It was a voluntarily inactive program, that is correct, Your Honor, I agree with that.
Justice Potter Stewart: Thank you.
Justice Thurgood Marshall: Mr. Fontham, --
Justice Potter Stewart: Yes, Your Honor?
Justice Thurgood Marshall: They correct on McDonald page 281, footnote 8, this Court said, that Santa Fe just claimed that the actions challenged here were any part of an affirmative action program.
See brief for respondent.
And we emphasize that we do not consider here the permissibility of such a program.
Clearly, we say we weren't passing on affirmative action program.
Mr. Fontham: Well, Your Honor, I --
Justice Thurgood Marshall: (Voice Overlap) what this Court said.
Mr. Fontham: I recognize that that statement was in McDonald.
Justice Thurgood Marshall: But you did okay.
Mr. Fontham: But Your Honor, the -- I think it's a -- what the Court also said was that Title VII protects all individuals whether they be members of a minority group or not members of a minority group, and that those persons have a right to sue and to have a relief and to have non-discrimination on an individual basis under Title VII.
And even if an affirmative action program that breaks down past barriers may be alright, the point of the Court's decision was that you cannot --
Justice Thurgood Marshall: That you cannot pass it on affirmative action program.
Mr. Fontham: Your Honor, I think that certainly I draw from that decision that rights cannot be discriminated against.
Justice Thurgood Marshall: Why do you think the Court put that footnote in there?
Mr. Fontham: Your Honor?
Justice Thurgood Marshall: Why do you think the Court put that footnote in there?
Mr. Fontham: I think that --
Justice Thurgood Marshall: Dictum?
Mr. Fontham: I think that the Court -- I don't know, Your Honor.
In closing, I think the main point I want to make is that individuals have been discriminated against in this case.
They've lost their employment status.
They've lost their seniority rights.
The goals or desires of the Government or the union or the company may have been laudable or objectives that may reach some social desirable point but the fact is that they can't try to accomplish that by discrimination against non-minority employees.
The statements of Title VII which prohibit any discrimination against individuals, the legislative history of Title VII where the statements are repeated and repeated and repeated and repeated that it would not permit preferences that discrimination against non-minority group members is prohibited.
It indicate and decisions of this Court saying that why individual cases are to be trying into the same standards as cases brought by members of minority groups all say that the class of the plaintiffs in this case, Brian Weber and the other individuals who lost their seniority status who did not have the opportunity to enter these training programs have been subjected to a violation of Title VII and there was no past discrimination in this case that could justify that in any way.
There was no discrimination against the individuals who are being preferred and in fact there was no discrimination at the plant at large.
Seniority rights were granted on a plant-wide basis to everyone and everyone had an equal opportunity to advance and minority group members will advance to that seniority system and some day minority group members will be fully represented in the craft positions at that plant.
It may not be as speedy as some planners would desire but even so those planners cannot reach that point via discrimination against non-minority group members.
Justice Harry A. Blackmun: Mr. Fontham, three or four times, you mentioned Senator Humphrey in your references to the legislative history.
And then I asked you for a question, which side of the case do you think you'd be on?
Mr. Fontham: Your Honor, I'm not sure.
I think that if -- I that there's a good chance he would be on my side.
I can't say for sure though.
Rebuttal of Thompson Powers
Chief Justice Warren E. Burger: Mr. Powers, do you have anything further?
You have about three minutes left.
Mr. Powers: Thank you Mr. Chief Justice.
I'll be very brief.
First, let me say that this is not an unheard or form of an affirmative action.
In the two largest consent decrees which have been entered in this country, the AT&T consent decree and the steel industry consent decree, this very form of action was proposed, was adopted by the lower courts that affirmed on appeal.
Secondly, Mr. Chief Justice, I'd like to emphasize that we do not believe that a congressional amendment is required to approve the type of action that was taken here.
We think that --
Chief Justice Warren E. Burger: But that was not my question.
Mr. Powers: We think that nothing could be clear and that the Congress intended that this type of voluntary action be taken consistent with the broad remedial purposes of the statute.
There has been a suggestion that counsel have engaged in euphemisms.
Let me stress that we're not suggesting that this matter should be solved in terms of a label that's placed on it.
And I would suggest that the action that the company and the union have taken here is entirely consistent with the words of this Court in Albemarle Paper against Moody, when it suggested that it wanted to provide the spur or catalyst that causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate so far as possible the last vestige of an unfortunate and ignominious page in this country's history.
We believe that what the company and the union have done in this case meets that standard.
We would suggest that far from debasing or taking away from Brian Weber and other white employees who lack craft experience at the Gramercy plant and at other Kaiser plants.
What the company and the union did here enhance their seniority.
It gave them an opportunity along with black employees and other minority employees and female employees to become craft qualified.
It set up that program in the best way that the company and the union could find to both respond to the value and virtues of seniority.
And yet to make a demonstration that the old barriers for minorities and women had ended and that the new opportunities promised by Title VII were in fact real.
We believe that this is a commendable example of what can be achieved through collective bargaining.
But we're not here asking for commendation, we ask only that our right to continue this program be upheld.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.