Amicus Brief — University of California Regents v. Bakke

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No. 76-811 | N.

— f 8 Das

IN THE 1 —

Supreme Court of the United States

OCTOBER TERM, 1977

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Petitioner,

ALLAN BAKKE,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of California

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

KENNETH C. MCGUINESS

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

McGUuINEss & WILLIAMS

1747 Pennsylvania Ave., N.W.

Washington, D.C. 20006

Of Counsel:

RONALD M. GREEN

VEDDER, PRICE, KAUFMAN,

KAMMHOLZ & DAY

800 Third Avenue

New York, New York 10022

WILSON -. EPES PRINTING Co... Inc Re 7-6002 - WaASitiNGTON. D. C 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURA

PRELIMINARY STATEMENT: THE IMPOR-

TANCE OF THIS CASE TO PRIVATE EMPLOY-

MENT AFFIRMATIVE ACTION PLANS...

FE Oe ae aE OR

I. Current Court Decisions and Federal Agency

II.

Regulations Effectively Compel Employers to

Adopt Affirmative Action Plans Which Give

Preferential Treatment to Minorities and

—— — —— . —

A. Regulations Enforeing Executive Order

11246 Require Contractors to Develop and

Implement AAP’s to Remedy Any Statistical

Underrepresentation of Minorities or Women

Regardless of Its Cause es

1. Mere Statistical Underutilization Re-

quires the Implementation of Goals and

— — —

2. Severe Sanctions for —

with OFCCP Demands Effectively Com-

pel Contractors to Engage in Preferential

Employment Practices

B. Inconsistent Judicial Use of Statistical Evi-

dence Impels Many Employers to Adopt

AAP’s to Avoid Potential Findings of Dis-

crimination Under Federal Statutes

Existing Court Decisions Raise Doubts About

the Validity of OFCCP’s Preferential Treat-

ment requirements, But Do Not Provide Suffi-

cient Guidance to Enable Employers To De-

termine the Permissible Limits of Affirmative

— ͥ— —

TABLE OF CONTENTS—Continued

III. The Court Should Formulate Principles That

Provide Guidance for Employers Who Must

Reconcile Affirmative Action Requirements with

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405, 10

FEP Cases 1181 (1975) — „ 34, 35, 36, 37

Alexander v. Gardner-Denver Co., 415 U.S. 36, 7

r 8

ron v. San Francisco School Dist., 357 F.

Supp. 248, 5 FEP Cases 362 (N.D. Cal. 1972) 28

Associated General Contractore of Massachusetts,

Inc. v. Altshuler, 490 F.2d 9, 6 FEP Cases 1013

(ist Cir. 1973), cert. denied, 416 U.S. 957, 7

FEP Cases 1160 (197;᷑ 3-4, 14

Barnett v. Int'l Harvester, 12 FEP Cases 786

r iat ieee aetna 29

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d

1017, 8 FEP Cases 855 (ist Cir. 1974), cert.

denied, 421 U.S. 910, 10 FEP Cases 555 (1975) 24

Bridgeport Guardians, Inc. v. Members of the

Bridgeport Civil Service Commission, 482 F.2d

1333, 5 FEP Cases 1344 (2d Cir. 1973

Broidick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d

265, 350 N.E.2d 595, 14 FEP Cases 38 (1976)

Brunetti v. City of Berkeley, —— F. Supp. ——,

12 FEP Cases 987 (N.D. Cal. 1975)

Burns v. Rohr Corp., 346 F.2d 994, 4 EPD 7 7924

D =

Carter v. Gallagher, 452 F.2d 315, 4 FEP Cases

121 (8th Cir. 1972), cert. denied, 406 U.S. 950,

rt x 3, 23

Chance v. Bd. of Examiners, 534 F.2d 993, 11 FEP

Cases 1450 (2nd Cir. 1976), mod. on other

grounds, 534 F.2d 1007, 13 FEP Cases 150 (2nd

Cir. 1976), cert. denied. U.S. ——, 45 U.S.

S & N &

LW. 3808 (May 14, 197)077ꝛt 26

Commercial Envelope Mfg. Co. v. Dunlop, 11 FEP

Cases 117 (S.D.N.Y. 197555 * 16

Secretary of Labor, 442 F.2d 159 (8rd Cir.

1971), 3 FEP Cases 395, cert. denied, 404 U.S.

854, 3 FEP Cases 10380 (1971) 13-14, 35

TABLE OF AUTHORITIES—Continued N

age

Coopersmith v. Roude bush, 517 F.2d 818, 11 FEP

Cases 247 (D.C. Cir. 1975) -............--.-.-.-..--------- 19

Cramer v. Virginia Commonwealth University, 415

F. Supp. 673, 12 FEP Cases 1397 (E.D. Va.

1976), appeal pending (4th Cir. No. 76-1937 ).... 4, 29

Crockett v. Green, 10 FEP Cases 165 (E.D. Wis.

1975), aff'd, 534 F.2d 715, 12 FEP Cases 1078

EE Ion 24

EEOC v. AT & T Co., —— F.2d ——, 14 FEP

Cases 1210 (3d Cir. 1977), aff’g, 419 F. Supp.

1022, 18 FEP Cases 392 (E.D. Pa. 1976) 3, 22, 35

EEOC v. IUOE Locals 14 & 15, —— F.2d ——,

14 FEP Cases 870 (2nd Cir. 19775077 18, 26

EEOC v. Local 638, 532 F.2d 821, 12 FEP Cases

I (RI IRR O—E 26, 33

Flanagan v. President & Director of Georgetown

College, 417 F. Supp. 377 (D.D.C. 1976) 28

General Electric Co. v. Gilbert, 429 U.S. 125, 13

FEP Cases 1657 (197000 35

Germann v. Kipp, —— F. Supp. ——, 14 FEP

Cases 1197 (W.D. Mo. 1977), appeal pending

8 080 —————3—ß—ß— 3, 22, 28

Grebe v. Colorado State Bd. of Agriculture, ——

F. Supp. ——, 14 FEP Cases 1238 (D. Col.

Se 31, 34

Griggs v. Duke Power Co., 401 U.S. 424, 3 FEP

|). ol) | 19, 35, 36

Harper v. Kloster, 486 F.2d 1134, 6 FEP Cases

9000. ——K—K—— 24

Hazelwood School District et al. v. U.S., —— US.

— 15 FEP Cases 1 (1977) .............-........-...---- 7, 8, 19

Hollander v. Sears, Roebuck & Co., 392 F. Supp.

90, 10 FEP Cases 475 (D. Conn. 197555 27

Hupart v. Board of Higher Education of the City

of New York, et al., 420 F. Supp. 1087 (S. D. N. x.

99 — ů —————— 28, 34, 36

TABLE OF AUTHORITIES—Continued

Page

Joyce V. McCrane, 320 F. Supp. 1284, 3 FEP Cases

e iS 14

Kaplan v. Theatrical & Stage Employees, 525 F.2d

, 18

Kirkland v. N.Y. State Dept. of Correctional Serv-

ices, 500 F.2d 420, 11 FEP Cases 38 (2nd Cir.

1975), rehrg. en banc. denied, 531 F.2d 5, 11

FEP Cases 1253 (2nd Cir. 1975), cert. denied,

e ee 25, 33

Kober v. Westinghouse Electric Corp., 480 F.2d

240, 5 FEP Cases 1166 (2d Cir. 19737 37, 38

Krajco v. State Bureau of Personnel, et al., 13 EPD

{ 11,602 (Wisc. State Cir. Ct. 1977) 28

LeBlanc v. Southern Bell Telephone & Telegraph

Co., 333 F. Supp. 602, 3 FEP Cases 1083 (E.D.

La. 1971), aff'd 460 F.2d 1228, 4 FEP Cases 818

(5th Cir. 1972), cert. denied, 409 U.S. 990, 5

I I 34, 37

Legal Aid Society of Alameda County v. Brennan,

et al., 381 F. Supp. 125, 8 FEP Cases 178 (N.D.

Cal. 1974), appeal pending (9th Cir.) _....... * 11

Lige v. Town of Montclair, 367 A. 2d 833, 13 FEP

Cases 1607 (N. J. 1976) ...................................... 27

McAleer v. American Telephone & Telegraph Co.,

416 F. Supp. 435, 12 FEP Cases 1473 (D. D. C.

EEE AEE a ae Se a ee ae 4, 36

McDonald v. Santa Fe Transportation, 427 U.S.

273, 12 FEP Cases 1577 (1976) 10

Manning v. Internat’! Union, 466 F.2d 812, 4 FEP

Cases 1282 (6th Cir. 1972), cert. denied, 410

U.S. 946, 5 FEP Cases 587 (197 37

Morrow v. Crisler, 491 F.2d 1053, 7 FEP Cases 586

(5th Cir. 1974), cert. denied, 419 U.S. 895, 8

FEP Cases 1007 (1974) ...................................... 23, 24

NAACP v. Allen, 498 F.2d 614, 7 FEP Cases 878

EEE ̃ Ä... 25

Olson v. Philco-Ford, 581 F.2d 474, 12 FEP Cases

426 (10th Cir. 1976) — — 18-19

TABLE OF AUTHORITIES—Continued

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,

18 FEP Cases 517 (3rd Cir. 1976), cert. denied,

13 EPD J 11,311 (1977), 14 FEP Cases 266,

rehg. denied, 97 S.Ct. 1187 (1971772

Parham v. Southwestern Bell Telephone Co., 433

F.2d 421, 2 FEP Cases 1017 (8th Cir. 1970) —

Patterson v. American Tobacco Co., 535 F.2d 257,

12 FEP Cases 314 (4th Cir. 1976), cert. denied,

III

Patterson v. Newspaper Deliverers’ Union, 384 F.

Supp. 585, 10 FEP Cases 340 (S.D.N.Y. 1974),

aff'd 514 F.2d 757, 10 FEP Cases 349 (2nd Cir.

|) ee

Pettway v. American Cast Iron Pipe Co., 494 F.2d

211, 7 FEP Cases 1115 (5th Cir. 197477

Pierson v. Ray, 386 U.S. 547 (1967) -.......................

Reed v. Arlington Hotel Co., 476 F.2d 721 (8th

Cir. 1972), cert. denied, 414 U.S. 854 (1973) ....

Rich v. Martin Marietta Corp., 522 F.2d 333, 11

FEP Cases 211 (10th Cir. 19759

Ridinger v. General Motors, 325 F. Supp. 1089

(S.D. Ohio 1971), rev’d & remanded on other

grounds, 474 F.2d 949, 6 EPD { 8705, aff'd in

rel. part after remand, 7 EPD 49395 (S.D.

Rios v. Enterprise Ass'n Steamfitters, Local 638,

501 F.2d 622, 8 FEP Cases 293 (2nd Cir. 1974) ..

Roman v. ESB Inc., 550 F.2d 1343, 14 FEP Cases

235 (4th Cir. 1976) (en ban):

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219,

8 FEP Cases 604 (9th Cir. 19717):

Sabala v. Western Gillette, Inc., 516 F.2d 1251

(5th Cir. 1975), judg. vacated, 45 U.S.L.W.

3786, 14 FEP Cases 1686 (June 7, 1977) ............

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d

1002, 4 FEP Cases 946 (9th Cir. 19727

Southern Illinois Builders Ass'n v. Ogilvie, 471

F.2d 680, 5 FEP Cases 229 (7th Cir. 1972

Page

VII

TABLE OF AUTHORITIES—Continued

State of Wisconsin v. DILHR, 14 FEP Cases 1189

CO EE

Stevenson v. Int'l Paper Co., 516 F.2d 1013, 10

FEP Cases 1386 (5th Cir. 1975) 000000

Stryker v. Register Publishing Co., 423 F. Supp.

476, 14 FEP Cases 748 (D. Conn. 1976)

Swann v. Charlotte-Mecklenburg Bd. of Edu., 402

r 1

T.1M.£E.-D.C. v. U.S., Teamsters v. U.S., —— U.S.

—-, 45 U.S.LW. 4506; 14 FEP Cases 1514

Page

CC —E— 7, 8, 9, 19

Trans World Airlines v. Hardison, 45 U.S. L. W.

4672, 14 FEP Cases 1697 (197):

Tuma v. American Can Co., 373 F. Supp. 219, 7

FEP Cases 851 (D. N. J. 1974)

U.S. v. Elevator Constructors Local 5, 538 F. 2d

1012, 13 FEP Cases 81 (3rd Cir. 1976)

U.S. v. Ironworkers, Local 86, 315 F. Supp. 1202

(D. Wash. 1970), aff'd 443 F.2d 544, 3 FEP

Cases 496 (9th Cir. 1971), cert. denied, 404 U.S.

984, 4 FEP Cases 37 (197177)

U.S. v. Lathers, Local 46, 471 F.2d 408, 5 FEP

Cases 318 (2nd Cir. 1973), cert. denied, 412 U.S.

EE ...

U.S. v. Operating Engineers, Local 701, —— F.

Supp. ——,, 14 FEP Cases 1400, 13 EDP / 11,608

r è7⁵²bũ

U.S. v. T. JM. F.-D. C. Inc., 517 F.2d 299 (5th Cir.

1975), aff'd in part and rev'd in part, 45

U.S.L.W. 4506, 14 FEP Cases 1514 (1977)

United Jewish Organizations of Williamsburgh,

Inc. v. Carey, 97 S. Ct. 996, 45 U.S.L.W. 4221

EE EEE

Watkins v. Steelworkers, Local 2369, 516 F.2d 41,

10 FEP Cases 1297 (5th Cir. 1975)

Weber v. Kaiser Aluminum & Chem. Co., 415 F.

Supp. 761, 12 FEP Cases 1615 (E.D. La. 1976),

appeal pending, (5th Cir. No. 76-3266)

VIII

TABLE OF AUTHORITIES—Continued

Page

Weiner v. Cuyahoga Community College District,

249 N.E.2d 907, 2 FEP Cases 30 (Ohio Sup.

Ct. 1969), cert. denied, 396 U.S. 1004, 2 FEP

II ?—— — 14

Wernet v. Pioneer Foods Co., 6 EPD 7 8799 (D.

Ohio 1972), aff'd sub nom., Wernett v. Amalga-

mated Meat Cutters and Butcherman Local 17,

484 F.2d 403, 6 FEP Cases 602 (6th Cir. 1973) 34

Western Addition Community Org. v. Alioto, 514

F.2d 542, 10 FEP Cases 527 (9th Cir. 1975),

cert. denied, 423 U.S. 1014, 11 FEP Cases 930

—A 24

Western Electric Co. v. Stern, 544 F.2d 1196, 13

FEP Cases 1352 (3d Cir. 19704 18

Wetzel v. Liberty Mutual Inc. Co., 508 F.2d 239,

9 FEP Cases 211 (3d Cir. 1975), cert. denied,

421 U.S. 972, 10 FEP Cases 105%/ꝙꝶꝙꝗ4/ 18

Williams v. General Foods Corp., 492 F. 2d 399, 7

FEP Cases 827 (7th Cir. 197477 37, 38

Wood v. Strickland, 420 U.S. 308 (197595 34

Statutes and Other Authorities:

42 U.S.C. §§ 2000e et seq. (Title VII of the Civil

CTE SS 2, 4, 5, 8, 34

Executive Order 11246, as amended by Executive

CQ yxy 2, 4, 6, 8, 12, 30, 34

̃ 4 {|S 15

41 CFR Chapter 60

41 CFR Part 30-30 — 15

41 CFR Part 601.26 (a), as amended in 42

Fed. Reg. 3460 (197))7ĩ7 14, 15

41 CFR Part 60-1.40 (Revised Order No. 4) 10

41 CFR Part 60-2 (Revised Order No. 4 10

41 CFR Part €60-2.2(b) ............................... 14, 15, 16

41 CFR Part 60-2.10, 2. 1222?2ꝙ — 11,12

41 CFR Part 60-30, 42 Fed. Reg. 3462, et

seq. 15

TABLE OF AUTHORITIES—Continued

41 CFR Part 60.9, Part B, XII(B(1)(C)

(Revised Order No. 14)

41 CFR Part 60-60.9, Part B, XII(B) (2)...

41 CFR Part 60-60 (Revised Order No. 14)

EEOC Compliance Manual, §§ 610, 620, 630

Hearings on S. 25 15, etc., Before the Subcommittee

on Labor of the Senate Committee on Labor and

Public Welfare, 92nd Cong., Ist Sess. 77 (1971)

Cohen, An End to Affirmative Action?, 28 Lab.

Employment Discrimination and Title VII of the

Civil Rights Act of 1964, Harv. L. Rev. 1109

1 — — ee Se NN

K. McGuiness, Preferential Treatment in Employ-

ment Affirmative Action or Reverse Discrimina-

D Ses ETERS

Recommer lation No. 75-2 of the Administrative

Conference of the U.S., 40 Fed. Reg. 27926

—T—T—T—T—T—T————T——TTWT

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-811

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Petitioner,

ALLAN BAKKE,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of California

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae of the Equal Employment

Advisory Council (EEAC) is submitted pursuant to

the written consent of all parties. EEAC is a volun-

tary, non-profit association, organized as a corpora-

tion under the laws of the District of Columbia. Its

Their consent has been filed with the Court Clerk.

membership includes a broad spectrum of employers

from throughout the United States, including both

individual employers and trade and industry associa-

tions. The principal goal of EEAC is to represent

and promote the common interest of employers and

the general public in the development and implemen-

tation of sound government policies, procedures and

requirements pertaining to nondiscriminatory em-

ployment practices.

Substantially all of EEAC’s members, or their con-

stituents, are subject to the provisions of Title VII of

the Civil Rights Act of 1964, as amended (42 U.S.C.

$§ 2000e et seg.) . In addition, those EEAC members,

or their constituents, who are federal contractors are

required to comply with Executive Order 11246

(amended by Executive Order 11375) and supporting

regulations, which, in part, contain extensive affirma-

tive action requirements. As such, the members of

EEAC have a direct interest in the issues presented

for the Court’s consideration in this case, which in-

volve the legality of the Petitioner’s preferential ad-

missions policy under which minority applicants were

admitted as students to the Petitioner’s Medical School

to the exclusion of allegedly better qualified nonmi-

nority applicants.

PRELIMINARY STATEMENT

THE IMPORTANCE OF THIS CASE TO PRIVATE

EMPLOYMENT AFFIRMATIVE ACTION PLANS

This case, arising in the context of a university’s

minority preference admissions program, can be ex-

pected to have far-reaching consequences for employ-

ers who have entered into affirmative action plans

(AAPs) either voluntarily, or under compulsion from

federal agencies or courts. This is the first case in

which this Court has decided to address directly the

constitutional validity of any type of affirmative ac-

tion plan under which the administering entity, be

it a university or employer, has made a decision to

allocate limited educational or employment opportu-

nities solely on the basis of race in order to rectify

an underrepresentation of minorities in a student

body or workforce.

Lacking directly applicable Supreme Court prece-

dent, affirmative action programs in private sector

employment are now governed by a confusing mix-

ture of often inconsistent federal and state court

decisions, government regulations and collective bar-

gaining agreements. Lower court decisions and

agency policy determinations dealing with employ-

ment discrimination often are based upon Supreme

Court decisions in other subject areas, even though

the standards for determining whether discrimina-

tion has occurred may differ under the Constitution

or applicable statutory scheme.’ It is reasonable,

See, e.g., EEOC v. American Telephone and Telegraph Co.,

—— F.2d ——, 14 FEP Cases 1210, 1219 n. 7 (3d Cir. 1977)

(Title VII consent decree case), and Germann v. Kipp, 14

FEP Cases 1197, 1206 & n. 23 (W.D. Mo. 1977), both citing

this Court’s recent decision on voting rights in United Jewish

Organizations of Williamsburg, Inc. v. Carey, 97 S.Ct. 996, 45

U.S.L.W. 4221 (March 1, 1977). The latter court also relied

upon this Court’s school desegregation decision in Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)

and other constitutional cases (see 14 FEP Cases at 1202) as

did the courts in Carter v. Gallagher, 452 F.2d 315, 4 FEP

Cases 121 (8th Cir. 1972), cert. denied, 406 U.S. 950, and

Associated General Contractors of Mass., Inc. v. Altshuler, 490

therefore, to expect that the courts, federal agencies,

employers and unions will look to the decision in this

case for guidance in attempting to determine the ex-

tent to which this Court will permit affirmative ac-

tion in employment.

The Court’s ruling here could do much to resolve

a dilemma now facing employers. Presently, employ-

ers who fail to adopt AAPs to increase the numbers

of minorities and women in their workforces risk loss

of their federal contracts, exposure to Title VII class

actions and agency complaints, and widespread pub-

licity of alleged discrimination. On the other hand,

employers who do adopt affirmative action programs

which give job preferences to minorities and/or

women may be found to have committed “reverse dis-

crimination” against nonminority or male employees,

who can be expected to demand monetary or other

relief.“ Employers are thereby placed in the ironic

and unfair position of facing liability to nonminori-

ties and males because of good faith attempts to

F.2d 9, 16 (Ist Cir. 1973), cert. denied, 416 U.S. 957 (1974).

Similarly, both majority and dissent below in the instant con-

stitutional case relied heavily on precedent arising under Title

VII and Executive Order 11246. See 553 P.2d 1168-69 (ma-

jarity) ; and 553 P.2d at 1179-81 (dissent).

*For district cour. cases in which claims of affirmative

action discrimination by white or male employees have been

upheld, see, e. g., McAleer v. American Telegraph and Tele-

phone Company, 416 F. Supp. 435 (D. D.C. 1976) ; Cramer v.

Virginia Commonwealth University, 415 F. Supp. 673 (E. D.

Va. 1976), appeal pending (4th Cir. No. 76-1987) ; and Weber

v. Kaiser Aluminum & Chemical Corporation, 415 F. Supp.

761, 18 FEP Cases 1615 (E.D. La. 1976), appeal pending

(5th Cir. No. 76-3266). See also the discussion, infra, pp. 27-

$1.

comply with requirements found in statutes, executive

orders or other government directives intended to

prevent discrimination.

This dilemma is compounded by a significant split

in court opinion over the permissibility of preferen-

tial treatment of minorities or women absent a show-

ing of discrimination by the particular employer in-

volved. Also unclear is whether such a showing may

be based upon statistical evidence alone, or whether,

and in what circumstances, additional corroborating

evidence may be required.

We recognize that the Constitutional and legal ar-

guments for and against affirmative action will be

thoroughly briefed to the Court by the parties and

numerous other amici curiae in this case. EEAC

does not take a position on that issue. We merely

urge that, whatever conclusion the Court reaches, full

consideration be given to the implications of this case

for private employment affirmative action programs.

To that end, we offer in this brief, for the Court’s

reference, an explication of the specific legal and prac-

tical contexts in which employment AAPs presently

exist. It is hoped that, by framing its opinion herein

with a full awareness of these implications, the Court

may provide some answers to the quandary facing

employers.

Several principles which the Court should clarify

to provide needed guidance in this area are set forth

below at pp. 32-39. In particular, we urge the Court

to annunciate in its decision in this case a rule that,

as a general matter, a defendant in a “reverse dis-

crimination” suit will not be held liable to nonminor-

ity or male claimants if:

a. its affirmative action plan was adopted in a

good faith attempt to comply with the re-

quirements of Title VII, Executive Order

11246, a consent decree or other court or

agency requirements, and

b. its actions in implementing the plan were

reasonably related to these good faith objec-

tives.

Furthermore, even if affirmative action pursuant

to a good faith AAP is found to be illegal “reverse

discrimination,” we urge the Court to make it clear

that any remedies should be prospective only and lim-

ited to injunctions against further implementation of

the program. Preferential treatment undertaken at

the behest of the government, against the background

of unsettled and inconclusive legal precedents, and

without any intention of victimizing a portion of

society, should not subject employers to monetary lia-

bility. Any award of backpay in such circumstances

should be explicitly forbidden, for it would penalize

compliance with federal regulations.

Adoption of these clarifying principles would be

consistent with prior holdings of the Court that po-

tential defendants who must act in the face of un-

settled legal principles will not be “charged with pre-

dicting the future course of constitutional law.”

Pierson v. Ray, 386 U.S. 547, 557 (1967).

ARGUMENT

I. CURRENT COURT DECISIONS AND FEDERAL

AGENCY REGULATIONS EFFECTIVELY COMPEL

EMPLOYERS TO ADOPT AFFIRMATIVE ACTION

PLANS WHICH GIVE PREFERENTIAL TREAT-

MENT TO MINORITIES AND WOMEN

A major portion of the employer community in the

United States, including more than 300,000 federal

contractors, have adopted and are currently imple-

menting affirmative action plans designed to increase

the numbers of women and minorities in their em-

Dloy.

In general, AAPs are premised upon statistics

showing that various job groups in the employer’s

workforce do not reflect a proportionate utilization

of minorities or women potentially available from

the appropriate surrounding labor market area. Al-

though such “underutilization” may not necessarily

subject the employer to liability under antidiscrimi-

nation statutes,‘ federal government agencies such as

*For example, such an imbalance may be caused by the

working of an otherwise lawful bona fide seniority system

whose only alleged defect is that it perpetuates the effects of

past discrimination. See T.1.M.E.-D.C. v. U.S., 45 U.S. L. W.

4506, 14 FEP Cases 1514 (1977), and United Air Lines v.

Evans, 45 U.S.L.W. 4566, 14 FEP Cases 1510 (1977). The

imbalance also may be due, in part, to factors occurring before

the enactment of Title VII. See T. I. M. F.-D. C. v. U.S., 14 FEP

Cases at 1529 and n. 17; and Hazelwood School District v. U.S.,

— U.S. ——, 15 FEP Cases 1, 5 (1977). Additionally, as

recognized by this Court, the statistical evidence of an im-

balance may be questionable for several reasons: the numer-

ical sample may be too small to have statistical validity; the

figures may not accurately reflect the pool of “qualified” appli-

the Equal Employment Opportunity Commission

(EEOC) and the Office of Federal Contract Compli-

ance Programs (OFCCP) nonetheless often rely upon

such underrepresentation statistics as a basis for re-

quiring employers to adopt numerical employment or

promotional criteria such as “goals” and “time-

tables,” and to make “good faith efforts” (41 C. F. R.

§ 60-60.9, Part B, XII(B)(2)) to meet these cri-

teria for utilization of members of an “affected class.”

In addition, in a number of cases in which employer

discrimination under Title VII of the Civil Rights

Act of 1964 (Title VII) has been proven, courts have

ordered the imposition of remedial quotas under which

statistical imbalances must be rectified by hiring or

promoting fixed ratios of minorities or women. Still

other employers, in order to comply with Title VII

and to diminish their potential liability to minorities

and women, voluntarily have adopted AAPs to in-

crease their utilization of women and minorities, ei-

ther independently or through collective bargaining

agreements with their employees’ union representa-

tives.

cants (T. I. M. F.-D. C., 14 FEP Cases at 1521 n.2; and Hazel-

wood School District, 15 FEP cases at 4-5 & n. 13); or it may

be that the employer has “made too few employment decisions

to justify the inference that it had engaged in a regular

practice of discrimination.” T. I. M. F.-D. C., 14 FEP Cases at

1529.

See 41 C. F. R. § 60-60(B), “Establishment of present and

future goals and timetables” [OFCCP requirements]; and

Conciliation Standards for Compliance Personnel of the

EEOC, EEOC Compliance Manual §§ 610, 620, 630.

*Inasmuch as voluntary compliance is the “preferred

means” to eliminate employment discrimination (Alexander v.

As the cases discussed below indicate, the concept

of affirmative action embodies a requirement that

special consideration be given to such characteristics

as race, sex or national origin. When race- or sex-

based employment criteria are used, however, other

persons not benefitted by the AAP may question

whether such preferential treatment of minorities or

women is legally permissible, especially when the pro-

gram appears to have an adverse impact on their

employment opportunities in a universe of finite em-

ployment opportunities.

It is important to bear in mind, however, that even

if such preferential treatment of minorities and

women impacts adversely on nonminorities or males,

it is extremely unlikely that this result was invidi-

ously intended by the entity enacting the plan.’ It is

more likely that the AAP was adopted as a good faith

response to compelling pressures to eliminate tradi-

tional exclusionary discrimination against minorities

and women. It is the position of the Amicus, EEAC,

that the employer’s good faith reasons for enacting

an affirmative action plan must be given great weight

Gardner-Denver Co., 415 U.S. 36, 44 (1974)), employers

often engage in “self-examin[ation]” and “self-evalu[ation]”

in order to rectify what may be discriminatory practices. See

T.1.M.E.-D.C. v. U.S., 14 FEP Cases at 1531, and cases there

cited.

It has been noted that none of these cases in which reverse

discrimination has been found (see footnote 3, above) “deals

with the blatant racism or sexism of the past.” See Cohen,

An End to Affirmative Action?, 28 Lab. L.J. 225 (1977).

when determining the extent of the employer’s lia-

bility, if any, in “reverse discrimination” suits.“

A. Regulations Enforcing Executive Order 11246 Re-

quire Contractors To Develop and Implement

AAPs to Remedy Any Statistical Underrepresenta-

tion of Minorities or Women Regardless of Its

Cause

1. Mere Statistical Underutilization Requires the

Implementation of Goals and Timetables

Presidential Executive Order 11246 (30 Fed. Reg.

12319 (1965)), as amended by Executive Order

11375 (32 Fed. Reg. 14302 (1967)) (the Order or

E. O. 11246), requires that all nonexempt government

contracts and subcontracts include an equal oppor-

tunity clause pursuant to which the contractor or

subcontractor undertakes not to discriminate on the

basis of race, color, religion, sex or national origin

and also to take affirmative action to ensure that

applicants and employees are treated “without re-

gard” to these factors (Sec. 202(1)).°

As used here, “reverse discrimination suit” refers to the

claim of a person, not a member of a protected class which

is intended to be benefitted by the AAP, that he or she has

been harmed by its implementation. Use of this term is not

intended to imply that the particular employer involved pre-

viously has discriminated against minorities or women, or

that discrimination against whites or males is governed by

different standards than is discrimination against minorities.

Cf. McDonald v. Santa Fe Trail Transportation Co., 427 U.S.

273, 12 FEP Cases 1577 (1976); Trans World Airlines, v.

Hardison, 45 U.S.L.W. 4672, 4674, 4677, 14 FEP Cases 1697,

1700, 1704 (1977).

„See 41 C.F.R. § 60-1.40, 41 C. F. R. § 60-2 (Revised Order

No. 4) and 41 C.F.R. Part 60-60 (Revised Order No. 14).

The directives of the Order are implemented by

rules and regulations issued by the Secretary of

Labor,” which require (with limited exceptions) that

every federal supply and service contractor or sub-

contractor develop a written affirmative action pro-

gram. Each AAP must include statistical workforce

and utilization analyses. If the employer’s utilization

of women or any minority group representing more

than 2% of the area population is “deficient,” the

contractor must develop an affirmative action pro-

gram which must include “specific and result-oriented

procedures” (such as goals and timetables) to over-

come the underutilization in any particular job group.

41 C. F. R. 58 60-2.10, -2.12. See generally Legal Aid

Society of Alameda County v. Brennan, 381 F. Supp.

125, 8 FEP Cases 178 (N.D. Cal. 1974).

“Underutilization” is defined as “having fewer mi-

norities or women in a particular job group than

would reasonably be expected by their availability.”

41 C.F.R. § 60-2.11(b). “Availability” is determined

by consideration of “at least all” of eight factors—in-

cluding data on minority and female population and

unemployment, available skills and training facilities

(41 C. F. R. § 60-2.11)—with respect to every group-

ing of jobs in every establishment of the employer.

Every individual job title must be so scrutinized, with

those which are similar in terms of wage rates, con-

tent and career opportunity grouped for such study.

The history and current implementation of the affirmative

action requirements of E.O. 11246 are discussed in detail in

K. McGuiness, Preferential Treatment in Employment—

Affirmative Action or Reverse Discrimination? (1977).

„ %˙ ˙!V ee nh eo

Once underutilization is identified in any job group

at a particular contractor’s facility, the responsible

compliance agency” requires that goals and time-

tables be established to correct the deficiency by the

contractor applying “every good faith effort.” (41

C.F.R. § 60-2.12(B)). According to OFCCP, a goal

is stated as a percentage of the total employees in the

job group. Ultimate goals must be equal to the avail-

ability percentage or estimate. The timetable is de-

veloped so that the ultimate goal can be reached with-

in the minimum feasible time. Unless it appears that

the ultimate goal can be achieved within twelve

months, the contractors must also establish interim

or annual goals. These are described as “annual rates

of hiring and/or promoting minorities and women

until the ultimate goal is reached.”

The statistical imbalances that trigger these affirm-

ative action requirements need not be connected to

any showing of past or present discrimination. Thus,

shortly after the promulgation of OFCCP Order No.

4, Laurence H. Silberman, the Former Under Secre-

tary of Labor, testified that:

The Labor Department’s Office of Federal Contract Com-

pliance Programs (OFCCP) is responsible for monitoring

the contractors’ performance under E.O. 11246. While it re-

tains general supervisory authority, OFCCP has delegated

the day-to-day responsibility for enforcing the program to

several compliance agencies in other Executive Departments,

such as the Departments of Defense and Commerce.

* See Revised Order No. 14, 41 C.F.R. § 60-60.9 Part B

§ XII(B)(1)(c). Factors to be considered in setting these

goals are found at 41 C.F.R. § 60-2.12.

One of the things interesting about the

[OFCCP’s] affirmative action concept, it is not

antidiscrimination. It goes beyond that

We and the compliance agencies put pressure on

contractors to come up with commitments even

though those contractors are not guilty of any

discrimination, but because we think they are

required under the Executive order to go beyond,

to provide affirmative action.

Since they are not guilty of discrimination, it is

not exactly the kind of situation where you can

go to an enforcement posture, but rather you say

to that contractor, you have to make an extra

effort beyond what the civil rights laws are in

this country and go beyond that in order to get

a Government contract. Hearings on S. 2515,

etc., Before the Subcommittee on Labor of the

Senate Committee on Labor and Public Welfare,

92nd Cong., Ist Sess. 77 (1971) (hereinafter

cited as Hearings) (emphasis added).

Accordingly, even employers who may be justified in

asserting that a statistical imbalance is not the product

of discrimination are nevertheless required to adopt

an AAP or face the sanction proceedings described

below.

The legality of these requirements has never been

definitively established. Several courts have approved

Labor Department affirmative action “Home Town”

plans expressly addressed to remedying proven egre-

gious and long-standing exclusion of minorities by

various construction unions.” None of these cases,

See 2.g., The Philadelphia Plan, Contractors Ass’n of

Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159,

however, directly sanctions the adoption of an AAP

by an employer whose statistical imbalance is not

established as the product of past discrimination

through a full and fair administrative hearing proce-

dure. As is noted below, moreover, several recent

Title VII decisions have invalidated AAPs which

were not premised on past discrimination by the par-

ticular employer involved, but rather were enacted

to comply with government-required affirmative ac-

tion. See infra, pp. 27-31.

2. Severe Sanctions for Non-Compliance with

OFCCP Demands Effectively Compel Contrac-

tors to Engage in Preferential Employment

Practices

Sanction proceedings can be brought against a con-

tractor for such discrepancies as failing to adopt an

AAP at each of its establishments, substantially devi-

ating from an AAP, or “failing to develop or imple-

ment an AAP which complies with the OFCCP’s regu-

lations.” See 41 C.F.R. §§ 60-1.26(a), 60-2.2(b).

3 FEP Cases 395, (3d Cir. 1971), cert. denied, 404 U.S. 854;

the Newark Plan, Joyce v. McCrane, 320 F. Supp. 1284, 3

FEP Cases 111 (D. NJ. 1970); the IIlinois-Ogilvie Plan,

Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d 680,

5 FEP Cases 229 (7th Cir. 1972) (state plan); the Boston

Plan, Associated General Contractors of Massachusetts, inc. v.

Altshuler, 490 F.2d 9, 6 FEP Cases 1013 (ist Cir. 1973),

cert. denied, 416 U.S. 957; and the Cleveland Plan, Weiner v.

Cuyahoga Community College District, 249 N.E.2d 907, 2

FEP Cases 30 (Ohio Sup. Ct. 1969). But compare, U.S. v.

Operating Engineers, Local 701, 14 FEP Cases 1400 (D. Ore.

1977) (despite showing of past discrimination, the court

refused to give preferential relief to minorities under E.O.

11246, holding that such relief would give rise to serious

questions of reverse discrimination.”).

Thus, an allegation by a compliance officer that there

is an underutilization of minorities or women in any

job group may result in enforcement (i.e., sanction)

proceedings against the contractor. See 41 C.F.R.

§ 60-1.26(a), amended in 42 Fed. Reg. 3460 (1977).

If the agency determines to proceed to its own en-

forcement hearing procedures (set forth in 41 C. F. R.

§ 60-30, 42 Fed. Reg. 3462, et se.), the contractor

faces cancellation or termination of all federal con-

tracts (or any part thereof); withholding progress

payments on a contract; or, debarment from future

contracts.”

Other severe sanctions may be, and have been, ap-

plied to contractors even before any agency hearing

on the alleged violation. Under 41 C.F.R. § 60-2.2

(b), amended in 42 Fed. Reg. 3460, when it comes

The alleged violation also may be referred to the Justice

Department or the Equal Employment Opportunity Commis-

sion (EEOC). See 42 Fed. Reg. 3456.

* 3 C. F. R. 169, 173-174, § 209 (a). A hearing on the ques-

tion of contract compliance is fundamentally different from

sanction hearings before other regulatory panels. The notice

or charge is approved initially, in many instances, by the

Director of OFCCP. The hearing is held before an adminis-

trative law judge, who can offer only recommendations as

to the decision. The final decision or order is prepared by the

compliance agency initiating the proceeding, subject to ap-

proval by the Director, or if the administrative proceeding

was initiated by the Director, the final order is issued by

the Secretary of Labor. 41 C.F.R. § 30-30. Thus, there is

no division of prosecutorial and adjudicatory authority be-

tween a general counsel and a commission or board, the pro-

cedure that most regulatory panels follow. Rather, the pro-

ceedings are initiated and, in essence, tried and judged by

the same federal body.

to the “attention” of the individual “contracting offi-

cer” that such underutilization exists, he “shall de-

clare the contractor/bidder nonresponsible . . .” (em-

phasis added). Interested compliance agencies are

notified of this “nonresponsibility,” and are then re-

quired to withhold further contract awards from the

alleged offending contractor.”

Such contract passover may occur when under-

utilization is alleged with respect to only one job

group within a particular facility, even though the

contractor may otherwise be in complete compliance

with the Order. Protection from such “de facto” de-

barment without a hearing appears to be within the

“sole discretion” of the Director, OFCCP. See 41

C.F.R. § 60-2.2(b), as amended 41 Fed. Reg. 3462.

1% Indeed, a study by the Administrative Conference of the

U.S. found that. . . in practice cancellation is rarely used.”

The more common sanction “. . is the declaration of non-

responsibility of an employer.” The Conference also noted

that, unlike the procedures leading to other sanctions, such as

debarment or cancellation of a contract, “no opportunity for

prior hearing is afforded in connection with a declaration of

nonresponsibility.” See Recommendation No. 75-2 of the Ad-

ministrative Conference of the U.S., 40 Fed. Reg. 27926

(1975). Cf. Commercial Envelope Mfg. Co. v. Dunlop, 11 FEP

Cases 117 (S.D.N.Y. 1975).

Another factor which had impelled contractors to comply

with OFCCP affirmative action requirements was a former

provision in 41 C.F.R. § 60-1.26(b) (2) (i) that a copy of a

notice of proposed sanctions which precedes a formal hearing

be published in the Federal Register, thereby generating

possibly unwarranted publicity over the contractor’s com-

pliance status. This provision was deleted in recent changes

to the agency’s regulations. See 42 Fed. Reg. 3455 (1977).

— _

Because these sanctions for non-compliance are so

severe and the opportunities to challenge OFCCP and

compliance agency policies so restricted, compliance

with the agency’s affirmative action requirements is

generally the only practical course available to em-

ployers whose business is directly or indirectly de-

pendent to any substantial degree on government con-

tracts.“

B. Inconsistent Judicial Use of Statistical Evidence

Impels Many Employers to Adopt AAPs to Avoid

Potential Findings of Discrimination Under Fed-

eral Statutes

Additionally, compelling impetus to develop and im-

plement effective affirmative action programs results

from court decisions under Title VII basing prima

facie findings of employment discrimination upon sta-

tistical evidence. Even for those employers who have

never engaged im any discriminatory practices, the

* As former Under Secretary of Labor Silberman testified

in describing the program:

I did not say that we have not used enforcement pro-

ceedings. In my testimony, I indicated we started 500

show cause hearings which are the initial process leading

to debarment and cancellation. In fact we have so much

clout over government contractors that very few of

them are willing to or want to fight that through litiga-

tion. They usually come into compliance. Hearings, supra

at 89-90.

Later, Mr. Silberman added,

I want to hasten to say that our program is not enforce-

ment minded. The idea is that we have such tremendous

sanctions that every time we go to use it, the contractor

falls into compliance so we cannot come to you with

x number of debarment actions. Hearings, supra at 90.

prospect of having to assume the burden to prove that

statistical disparities in their utilization of minorities

and women were not produced by discrimination is

enough to cause most employers to take aggressive

steps to eliminate such disparities as quickly as possi-

ble.

The lower courts have divided over the proper role

that statistics play in determining Title VII liability.

A number of appellate court decisions have found

prima facie cases of illegal disparate treatment es-

tablished solely by statistical evidence.“ Other deci-

sions, however, caution that the reliance upon unex-

amined statistics, unsupported by additional corrobo-

rating evidence of discrimination, often presents seri-

ous analytical difficulties.” Accordingly, these courts

* See, e.g., Kaplan v. Theatrical and Stage Employees, 525

F.2d 1364, 1358 (10th Cir. 1975); U.S. v. T. I. M. F.-D. C., Inc.,

517 F.2d 299 (Sth Cir. 1975), aff'd in part and rev'd in part,

45 U.S.L.W. 4506, 14 FEP Cases 1514 (May 31, 1977) ; Sabala

v. Western Gillette, Inc., 516 F.2d 1251, 1261 (5th Cir. 1975),

judg. vacated, 45 U.S.L.W. 3786 (June 7, 1977); Pettway v.

American Cast Iron Pipe Co., 494 F.2d 211, 225 n. 34, 7 FEP

Cases 1115, 1126 n. 34 (5th Cir. 1974) (numerous cases col-

lected) ; Reed v. Arlington Hotel Co., 476 F.2d 721, 723 (8th

Cir. 1972), cert. denied, 414 U.S. 854 (1973); Parham v.

Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir.

1970); Wetzel v. Liberty Mutual Ins., 508 F.2d 239, 259, 9

FEP Cases 211, 226 (3d Cir. 1975), cert. denied, 421 U.S.

972, 10 FEP Cases 1056.

” See, e.g., Watkins v. Steelworkers, 516 F.2d 41 (5th Cir.

1975) ; Roman v. ESB, Inc., 550 F.2d 1343, 14 FEP Cases 235

(4th Cir. 1976) ; Western Electric Co. v. Stern, 544 F.2d 1196,

18 FEP Cases 1362 (3d Cir. 1976); and EEOC v. Dok,

Locals 14 & 15, ——— F.2d ——., 14 FEP Cases 870 (2d Cir.

1977) ; Olsen v. Phileo-Ford, 581 F.2d 474, 12 FEP Cases 426,

have expressed a reluctance to base a finding of dis-

crimination on statistics alone, without looking into

whether the disparity might have a nondiscrimina-

tory cause. See also, n.4 above, pp. 7-8.

This Court recently noted (7.1.M.E.-D.C. v. U.S.,

supra, 14 FEP Cases at 1520-21 that:

statistics [alleged to demonstrate a prima facie

showing of Title VII liability] are not irrefut-

able; they come in infinite variety and, like any

other kind of evidence, they may be rebutted. In

short, their usefulness depends on all of the sur-

rounding circumstances.”

While this language suggests a balanced approach, it

clearly implies that employers whose workforce sta-

tistics do not reflect full utilization of minorities and

women will continue to face the potentially difficult

burden of proving a negative—i.e., that the statistical

disparities did not result from discriminatory causes.

It is evident, therefore, that employers must continue

428 (10th Cir. 1976); Rich v. Martin Marietta Corp., 522

F.2d 333, 11 FEP Cases 211, 221 (10th Cir. 1975) ; Cooper-

smith v. Roudebush, 517 F.2d 818, 11 FEP Cases 247 (D.C.

Cir. 1975).

* In Griggs v. Duke Power Co., 401 U.S. 424, 3 FEP Cases

175, 178 (1971), this Court held that proof of discriminatory

intent was not necessarily required to prove a Title VII vio-

lation, and that a violation also could be founded upon employ-

ment practices whose consequences had a disparate impact

on groups protected by the Act. Although apparently sanc-

tioning some use of statistics to inquire into Title VII discrim-

ination, the decision in Griggs gave little or no guidance as

to the appropriate use, weight or type of statistics which could

be used to establish or rebut a prima facie case of disparate

impact. Cf. Hazelwood School District v. U.S., supra.

to evaluate their employment practices from a sta-

tistical perspective and cannot rest assured that they

will not be held in noncompliance with Title VII un-

less their work complements mirror the racial and

sexual composition of the surrounding population.

Faced with these court decisions as they attempt

to assess their potential Title VII liability, many em-

ployers understandably conclude that the only safe

course is to attempt to hire and promote minorities

and women at rates that would satisfy the most

stringent of court-established standards by, in effect,

factoring race and sex considerations into their selec-

tion criteria. Indeed, in many instances, preferential

hiring policies may be the only effective method to

achieve statistical parity within a foreseeable time

span.”

* In this respect, it is noted in Employment Discrimination

and Title VII of the Civil Rights Act of 1964, Harv. L. Rev.

1109, 1302 (1971), that:

Il. EXISTING COURT DECISIONS RAISE DOUBTS

ABOUT THE VALIDITY OF OFCCP’S PREFER-

ENTIAL TREATMENT REQUIREMENTS, BUT DO

NOT PROVIDE SUFFICIENT GUIDANCE TO EN-

ABLE EMPLOYERS TO DETERMINE THE PER-

MISSIBLE LIMITS OF AFFIRMATIVE ACTION

In attempting to discern the extent to which pref-

erential treatment of women and minorities may be

used to correct statistical imbalances in their work-

forces, employers are now confronted with differing

agency and court interpretations of the governing

laws and policies.

As set forth above, pp. 10-14, the OFCCP requires

the implementation of goals and timetables to correct

any statistical imbalance, irrespective of the cause of

such imbalance and before any hearing has been held

to determine whether the imbalance has been created

by illegally discriminatory factors. This approach

seems to contrast with two developing lines of judi-

cial authority. First, unlike the OFCCP, the federal

courts generally have exhibited extreme caution in

approving, even as remedies, employment schemes

that involve preferential treatment of minorities and/

or women who cannot demonstrate that they are the

individual victims of discrimination. Secondly, sev-

eral recent district court decisions have held that em-

ployment practices favoring minorities or women con-

stituted illegal discrimination against whites or males

under Title VII. These cases have caused great con-

cern among employers. At present, however, the state

of the law is such that employers cannot determine

with any degree of assurance what kinds of affirma-

tive action the law permits or what the government

may validly require. The impact of these two lines

— on employment affirmative action is discussed

ow.

A. Judicial Decisions Discussing the Propriety of

Preferential Treatment to Remedy Proven Dis-

crimination

Employers seeking guidance in determining the ex-

tent to which private preferential treatment is per-

missible have searched logically for analogous princi-

ples in federal court decisions in which preferential

remedies have been awarded to remedy proven race

or sex discrimination. In actual practice, however,

the direction provided by such cases is lessened by

the lack of consistency in the lower courts’ pronounce-

ments concerning the legality and extent of such rem-

edies under the federal antidiscrimination laws.

Perhaps the most broadly-stated judicial approval

of racially-based employment decisions appears in

German v. Kipp, supra, 14 FEP Cases 1197, 1204-

1205 (W.D. Mo. 1977), where the court permitted

preferential promotions, even while acknowledging the

absence of employer discrimination or identifiable vic-

tims thereof. And see U.S. v. Elevator Constructors,

Local 5, 538 F.2d 1012, 13 FEP Cases 81, 88 (3d

Cir. 1976), and cases cited therein; and EEOC v.

AT&T, 14 FEP Cases 1210 (3d Cir. 1977).

Most other appellate decisions, however, have ex-

pressed reluctance in granting quota relief, even

where past discrimination has been proved. Indeed,

the Third Circuit itself remarked in disapproving a

quota remedy in a case where sex discrimination vio-

lative of Title VII had been found:

Quotas are an extreme form of relief and, while

this Court has declined to disapprove their use

in narrow and carefully limited situations [cita-

tions omitted], certainly that remedy has not

been greeted with enthusiasm. Ostapowicz v.

Johnson Bronze Co., 541 F. 2d 394, 13 FEP

Cases 517, 523 (3d Cir. 1976), cert. denied, 14

FEP Cases 266, reh. denied, 97 S. Ct. 1187

(1971).

The Fourth Circuit has urged similar restraint, again

in a case where statutory violations had been proved:

[T]he necessity for preferential treatment

should be carefully scrutinized and. . . such re-

been particularly intransigent in remedying discrimination

by other means. For example, in Carter v. Gallagher, 452

F.2d 315 (8th Cir. 1972), cert. denied, 406 U.S. 950, it was

noted that the defendant city had had only one black fireman

in 25 years. In United States v. Ironworkers, Local 86, 315

F. Supp. 1202 (D. Wash. 1970), af d, 443 F.2d 544 (9th Cir.

1971), it was noted that less than one percent of the union

membership was black. In Morrow v. Crisler, 491 F.2d 1053

(5th Cir. 1974) (en banc), cert. denied, 419 U.S. 895, a

temporary quota was authorized because no significant im-

Lathers, Local 46, 471 F.2d 408 (2d Cir. 1973), a quota was

ordered only after the union was cited for contempt in failing

to comply with a court-approved settlement agreement.

lief should be required only when there is a com-

pelling need for it. Patterson v. American To-

bacco Co., 535 F.2d 257, 274, 12 FEP Cases 314,

327 (4th Cir. 1976), cert. denied, 429 U.S. 920

(emphasis added) .”

See also Harper v. Kloster, 486 F.2d 1134, 6 FEP

Cases 880 (4th Cir. 1973).

Additionally, a number of decisions indicate that

the preferential relief may go no further than to elim-

inate the identifiable lingering effects of previous dis-

criminatory practices by the particular employer.“

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d

1017, 8 FEP Cases 855 (Ist Cir. 1974), cert. denied,

421 U.S. 910; Western Addition Community Organi-

zation v. Alioto, 514 F.2d 542, 10 FEP Cases 527 (9th

Cir. 1975), cert. denied, 423 U.S. 994; Morrow v.

Crisler, supra, 491 F.2d 1053, 7 FEP Cases 586 (5th

Cir. 1974), cert. denied, 419 U.S. 895, 8 FEP Cases

1007.

2 Similar cautionary language was used by the court in

Crockett v. Green, 10 FEP Cases 165, 173 (E.D. Wis. 1975),

aff'd, 534 F.2d 715, 12 FEP Cases 1078 (7th Cir. 1976):

[R]atio hiring or quota relief is an unusual and extra-

ordinary remedy and does not automatically follow from

the finding of any kind of discrimination . . [It] is

appropriate ... [where] . it appears to be the only

possible means to provide relief for racial discrimination.

(Emphasis added).

* As the court below noted, “[a]bsent a finding of past

discrimination [by the particular employer], . . the federal

courts, with one exception, have held that the preferential

treatment of minorities in employment is invalid on the

ground that it deprives a member of the majority of a benefit

because of his race.” [footnote omitted]. 553 F.2d at 1168.

These cases indicate that even in the context of

proven race discrimination, temporary, carefully cir-

cumscribed resort to racial criteria should be made

only when “the Chancellor determines that it repre-

sents the only rational, non-arbitrary means of eradi-

cating past evils.” NAACP v. Allen, 493 F.2d 614,

7 FEP Cases 873 (5th Cir. 1974) (emphasis added).

The Second Circuit has shown particular reluctance

to impose preferential treatment of minorities. In

Bridgeport Guardians, Inc. v. Members of the Bridge-

port Civil Service Commission, 482 F.2d 1333, 5 FEP

Cases 1344, 1349-50 (2d Cir. 1973) that court ap-

proved temporary racial hiring quotas for the city’s

police department, but disapproved promotion quotas

because “[t]he impact of the quota upon [incumbent

whites] would be harsh and can only exacerbate

rather than diminish racial tensions.“ Moreover, the

hiring quota was approved “somewhat gingerly” even

though the city had persisted in using an archaic

employment test, failed to seek minority recruits, and

the quota was well below the minority population of

the city and, presumably, did not suggest the concept

of parity hiring. The court, indeed, found that “the

most crucial consideration . . is that this is not a

private employer and not simply an exercise in pro-

viding minorities with equal opportunity employ-

ment.” 5 FEP Cases at 1350 (emphasis added).

In Kirkland v. New York State Department of

Correctional Services, 520 F.2d 420, 427, 11 FEP

Cases 38 (2d Cir. 1975), rehearing en bane denied,

531 F.2d 5, 11 FEP Cases 1253 (2d Cir. 1975), cert.

denied, 429 U.S. 823 (1976), the court criticized ra-

cial quotas as “repugnant to the basic concepts of a

democratic society” and observed that the Second Cir-

cuit had approved quotas only where there was a

clear-cut pattern of long-continued and egregious

racial discrimination and the absence of a showing

of “identifiable reverse discrimination.” 520 F.2d at

427, 11 FEP Cases at 43. The Bridgeport Guardians

distinction between hiring quotas and promotion

quotas was echoed in Kirkland, and repeated in

Chance v. Board of Examiners, 534 F.2d 993, 11 FEP

Cases 1450 (2d Cir. 1976), mod. on other grounds,

534 F.2d 1007, 13 FEP Cases 150 (2d Cir. 1976),

cert. denied, 45 U.S.L.W. 3803 (May 14, 1977).

Finally, in EEOC v. Local 638, 532 F.2d 821, 12

FEP Cases 755 (2d Cir. 1976) the court interpreted

its own Kirkland decision as having promulgated two-

fold requirements for the imposition of temporary

quotas of all kinds: a clear cut pattern of long-

continued and egregious racial discrimination, and

the dispersal of the effects of “reverse discrimina-

tion” among a group of non-minority persons who

are not “identifiable.” *

In sum, the lower courts, while not entirely con-

sistent in their approaches to quotas and other pref-

2 In a concurring opinion, Judge Feinberg reiterated his

doubts about the legality of all racial quotas expressed in his

concurring opinion in Patterson v. Newspaper & Mail Deliver-

ers Union of N.Y. & Vicinity, 514 F.2d 767, 775, 10 FEP Cases

349, 357 (2d Cir. 1975), and announced his agreement with

Judge Hays’ dissent in Rios v. Enterprise Association Steam-

fitters, Local 603, 501 F.2d 622, 8 FEP Cases 293 (2d Cir.

1974) where Judge Hays interpreted Section 703 (j) of Title

VII as prohibiting all quotas based upon prohibited classi-

fications. For an analysis of the Second Circuit’s approach to

quota remedies for union discrimination, see EEOC v. IUOE,

Locals 14 and 15, ——— F.2d at ——., 14 FEP Cases at 871.

erential remedies in cases of employment discrimina-

tion, generally have been much more reluctant to re-

quire such remedies than the OFCCP. It is not clear

at present whether these judicial discussions of the

propriety of quotas to remedy proven, egregious dis-

crimination are applicable at all to contractors who

are ordered by the OFCCP to enact AAPs premised

only on statistical underutilization. But certainly the

courts’ evident misgivings about the legitimacy of

preferential treatment, even in the former context,

create further cause for anxiety on the part of em-

ployers faced with agency pressures to bring their

practices into compliance with the government’s af-

firmative action requirements.

B. The “Reverse Discrimination” Decisions

The full extent of the dilemma confronting em-

ployers can be understood only by considering the

agency requirements and court decisions discussed

above in juxtaposition with the growing line of prece-

dents holding employers’ affirmative action efforts re-

sulted in illegal “reverse discrimination” against non-

minority or male employees or applicants.” Several

In addition to the decisions discussed below, affirmative

action plans have been set aside in a number of contexts by

federal and state courts. See, e.g., Hollander v. Sears Roebuck

& Co., 392 F. Supr. 90, 10 FEP Cases 475 (D. Conn. 1975)

(racial employment quota); Lige v. Town of Montclair, 367

A.2d 833, 13 FEP Cases 1697 (N.J. 1976) (minority hiring

quota); State of Wisconsin v. DILHR, 14 FEP Cases 1189

(Wis. Sup. Ct. 1977) (absolute civil service preference

based upon race or sex); Broidick v. Lindsay, 39 N.Y.

2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595, 14 FEP Cases

38 (1976) (requirement that successful bidders employ spe-

federal district courts recently have invalidated

AAPs which were adopted voluntarily and were not

premised upon a showing of past discrimination by

the particular employer. For example, in Anderson

v. San Francisco School District,” the court perma-

nently enjoined the school board from carrying out a

voluntarily-adopted, five-year quota for the assign-

ment, appointment, and promotion of minority school

administrators. In a similar case involving a munici-

pal government, the City of Berkeley was enjoined

from discriminating against white applicants by its

voluntary implementation of an AAP designed to cor-

rect an “underutilization” of minorities.“ The city’s

plan was adopted in recognition of a “history of dis-

criminatory employment practices throughout all seg-

ments of American society” without specifically ac-

knowledging any such discrimination on the part of

the city itself. The court stressed that “while quotas

merely to attain racial balance are forbidden, quotas

to correct past discriminatory practices are not.” 12

FEP Cases at 939.”

cific percentage of minority group apprentices) ; Flanagan v.

President & Director of Georgetown College, 417 F. Supp.

377 (D.D.C. 1976) (scholarship AAP); Hupart v. Board of

Higher Education of the City of New York, 420 F. Supp. 1087

(S.D.N.Y. 1976) (admissions AAP) ; Krajco v. State Bureau

of Personnel, 13 EPD { 11,602 (Wisc. S. Cir. Ct. 1977) (em-

ployment AAP).

* 357 F. Supp. 248 (N. D. Cal. 1972).

* See Brunetti v. City of Berkeley, —— F. Supp. ——,

12 FEP Cases 937 (N.D. Cal. 1975).

* But compare Germann v. Kipp, —— F. Supp. ——., 14

FEP Cases 1197 (W.D. Mo. 1977), in which the court ap-

proved an affirmative action plan that was adopted to cure a

A similar result occurred in Weber v. Kaiser Alum-

inum & Chem. Corp.,“ in which Kaiser and the United

Steelworkers Union enacted an agreement establish-

ing goals and timetables to achieve a desired minority

ratio in their apprenticeship programs. As openings

occurred, one minority was required to enter for

every nonminority. There was no showing that

Kaiser had ever discriminated against blacks. Rather,

the agreement was motivated by a desire to comply

with OFCCP utilization requirements and to avoid

litigation by minorities over their lack of workforce

representation. In setting aside the agreement as

violative of Title VII, the court indicated that courts,

and not private parties, should grant affirmative re-

lief and then only when it was necessary to eliminate

the effects of past discrimination.”

Likewise, the Title VII reverse discrimination deci-

sion in Cramer v. Virginia Commonwealth Univer-

sity, 415 F. Supp. 673, 12 FEP Cases 1397 (E.D.

Va. 1976), appeal pending (4th Cir. No. 76-1937),

vividly demonstrates both the quandary facing em-

ployers who attempt to comply with federal AAP

requirements, and the need for clarification of their

statistical showing of underutilization of minorities and

women, even though the court acknowledged that it was “not

dealing with a situation of court-imposed affirmative action

relief pursuant to a finding of discrimination against women

and minorities. . .” 14 FEP Cases at 1203.

415 F. Supp. 761, 12 FEP Cases 1615 (E.D. La. 1976),

appeal pending (5th Cir. No. 73-3266).

* For a decision upholding a similar AAP where past dis-

crimination was proven, see Barnett v. International Harves-

ter, 12 FEP Cases 786 (W.D. Tenn. 1976).

position by this Court. The court invalidated a vol-

untary AAP establishing hiring policies favoring

women under which the university sought to recruit

women for its faculty “in order to compensate for

alleged past deficiencies in minority hiring, and to

attempt to bring the school’s employee hiring prac-

tices into accord with prevailing federal guidelines.“

Id., 415 F. Supp. at 675, 12 FEP Cases at 1398.

(emphasis added). Those guidelines were found to

include E. O. 11246, and directives pursuant thereto

issued by the Department of Health, Education and

Welfare. The university’s reliance on federal agency

requirements, however, was rejected as a defense by

the court, which then criticized the federal govern-

ment for “requiring employers to engage in wide-

spread, pervasive and invidious sex discrimination

through the implementation of the pervading affirma-

tive action programs.. ., and for “. . . perpetuating

the very social injustices which it so enthusiastically

and properly seeks to remedy.” See 415 F. Supp. at

680, 12 FEP Cases at 1402.

In light of these decisions finding reverse discrimi-

nation, the legality of employment decisions which

grant preferential treatment based upon race or sex

is now open to serious question, particularly in the

absence of a court finding that such treatment is

necessary to remedy specific, proven acts of past dis-

crimination. Thus, given the present agency policies

requiring an AAP when any statistical imbalance ex-

ists, federal contractors are regularly placed in the

exceedingly vulnerable position of having to choose

between (a) loss of contracts and other severe sanc-

tions; or (b) adoption of an AAP which may not

withstand scrutiny against a claim of illegal reverse

discrimination, and also which might go beyond that

which a court would order if it were to determine an

appropriate remedy under Title VII.”

One district court judge has expressed his puzzlement

over this dilemma as follows (Grebe v. Colorado State Board

of Agriculture, —— F. Supp. ——, 14 FEP Cases 1238, 1239-

1240 (D. Col. 1977) ):

There is one fascinating aspect to this case which is

not yet quite before me. As we all know, the Supreme

Court has expressly reserved the question of the validity

of affirmative action programs, but that question is

squarely before the Court this term. If the Supreme

Court were to throw out all affirmative action programs,

the needs of the Equal Employment Opportunity Com-

mission for employees would receive a body blow. Yet, in

this [reverse discrimination] case, the EEOC found prob-

able cause, which must mean that the EEOC says that

when an affirmative action program results in sex dis-

crimination, the discrimination which results from the

affirmative action will support a Title VII lawsuit. We

will just have to wait to see what the Supreme Court

says, but the ruling of the EEOC in this case makes one

TTT;

Hale

71 sf Er

Hit

III. THE COURT SHOULD FORMULATE PRINCIPLES

THAT PROVIDE GUIDANCE FOR EMPLOYERS

WHO MUST RECONCILE AFFIRMATIVE ACTION

REQUIREMENTS WITH POTENTIAL REVERSE

DISCRIMINATION LIABILITY

The Amicus, EEAC, submits that the dilemma of

employers described above is intolerable and cries out

for a resolution which only this Court can now pro-

vide. Accordingly, EEAC respectfully urges the

Court to articulate in its decision in this case certain

clarifying principles that will furnish guidance to

help resolve the present quandary.

First, the previous discussion has demonstrated

that, as a general rule, the courts impose goals or

quotas only as remedies of last resort where there is

a history of flagrant, long-standing discrimination on

the part of an employer. See supra, pp. 22-27. In

contrast, the OFCCP and other agencies routinely re-

quire goals that often have the effect of preferential

quotas, even when statistical imbalances have not been

connected with proven illegal discrimination. It is

EEAC’s position that preferential treatment should

not be required to remedy underutilization of women

or minorities in a student body or workforce until

after full and fair hearing procedures establish that

the imbalance was the result of illegal discriminatory

causes. The existence of illegal discrimination should

be the first, not the last, area of federal agency in-

quiry where preferential treatment is sought. Re-

quiring government agencies to apply legal principles

which parallel those established by the courts in Title

VII cases would do much to eliminate the present

confusion over this issue.

Second, further clarification is required by this

Court to identify for the lower courts the limits of

permissible preferential treatment of minorities and

women. In this regard, the Amicus urges this Court

to endorse the position that has been adopted by the

Second Circuit in its opinions in Kirkland v. New

York State Department of Correctional Services and

EEOC v. Local 638, both supra, pp. 25-26. These

cases conclude that preferential remedies, even to

remedy egregious proven past discrimination, can

pass constitutional and statutory scrutiny only when

they operate in the absence of identifiable “reverse

discriminatees.” Thus, the Second Circuit has indi-

cated that it would approve hiring goals and quotas

only where the negative impact on innocent nonmi-

norities or males will be diffused among an unidenti-

fiable group of unknown potential applicants. On the

other hand, that court has questioned quota remedies

involving promotions and training, since in such

cases, the “reverse discrimination” victims will be

readily identifiable.”

Third, if the Court should affirm the court below

and find that the University’s AAP illegally discrimi-

nated against Plaintiff Bakke, it should be with the

clear indication that the Court will not “charg[e]”

potential reverse discrimination defendants “with

predicting the future course of constitutional law.”

* Similarly, it should be noted that the courts generally

have denied remedies which would have permitted proven

discriminatees to “bump” incumbent white male employees

from their positions. See, e. g., Patterson v. American To-

bacco Co., 585 F.2d 257, 270, 12 FEP Cases 314, 321-322 (5th

Cir. 1976), cert. denied, 429 U.S. 920, and cases cited therein.

Pierson v. Ray, 386 U.S. 547, 557 (1967).“ Funda-

mental principles of fairness require that until this

Court delineates the permissible limits of affirmative

action, the entity which enacts an AAP should not be

held liable to nonminority or male employees if the

plan was adopted:

a. in a good faith attempt to comply with the

requirements of Title VII, Executive Order

11246, a consent decree or other court or

agency requirements,” and

„The holding of Pierson v. Ray has been cited specifically

in several Title VII cases as authority for denying back pay

claims when employers had acted in good faith attempts to

comply with existing statutory requirements. See, ¢.g.,

Ridinger v. General Motors, 325 F. Supp. 1089, 1098 (S.D.

Ohio 1971), aff'd in rel. part after remand, 7 EPD 7 9395

(S.D. Ohio 1973); LeBlane v. Southern Bell Telephone and

Telegraph Co., 333 F. Supp. 602, 611, 3 FEP Cases 1083,

1089 (E.D. La. 1971), af d, 460 F.2d 1228, 4 FEP Cases 818

(5th Cir. 1972), cert. denied, 409 U.S. 990; Wernet v. Pioneer

Foods Co., 6 EPD %8799 (D. Ohio 1972), aff'd sub nom.,

Wernet v. Amalgamated Meat Cutters and Butcherman Local

17, 484 F.2d 403, 6 FEP Cases 602 (6th Cir. 1973) ; Richards

v. Griffith Rubber Mills, 300 F. Supp. 338, 341, 2 EPD

J 10,001 (D. Ore. 1969). See also Hupart v. Board of Higher

Education, 420 F. Supp. at 1108. Cf. Wood v. Strickland, 420

U.S. 308, 319-22 (1975), relied upon in Grebe v. Colorado

State Board of Agriculture, —— F. Supp. ——, 14 FEP

Cases at 1239.

* As this Court noted in Albemarle Paper Co. v. Moody,

422 U.S. at 423 n. 17, 10 FEP Cases at 1189 n. 17, “Title

VII itself recognizes a complete, but very narrow immunity

for employer conduct shown to have been taken ‘in good faith,

in confirmity with, and in reliance on any written interpre-

tation or opinion of the [EEOC].’ 42 U.S.C. § 2000e-12(b).”

It recently has been found that a consent decree and its ac-

——

b. its actions in implementing the plan were

reasonably related to these good faith objec-

tives.”

Fourth, remedies available to a “reverse discrimi-

natee” should be prospective only and limited to in-

companying documents “certainly constitute such an interpre-

tation or opinion.” See EEOC v. American Telephone & Tele-

graph Co., 419 F. Supp. 1022, 1055 n. 34, 13 FEP Cases 392,

418 n. 34 (E.D. Pa. 1976), af d, EEOC v. American Telephone

& Telegraph Co., —— F.2d ——, 14 FEP Cases 1210 (3d

Cir. 1977).

As previously discussed, AAP’s often are implemented

upon the insistence of federal agencies such as the OFCCP

or the EEOC. This Court often has instructed employers that

they and the courts must give “great deference” to the regu-

lations and interpretations of federal enforcement agencies.

See Albemarle Paper Co. v. Moody, 422 U.S. at 431, 10 FEP

Cases at 1192, citing Griggs v. Duke Power Co., 401 U.S. at

433-34, 3 FE Cases at 179. See also Contractors Ass'n of

Eastern Pennsylvania v. Secretary of Labor, 442 F.2d at

175, 3 FEP Cases at 407 (“The Labor Department interpre-

tation of the affirmative action clause must, therefore, be

deferred to by the courts.”) When faced with judicial man-

dates of this nature, it is difficult for federally-regulated em-

ployers to question the legal interpretations of the appropri-

ate agency.

It is recognized also that the courts are not required to

give “total abdication” to administrative interpretations, and

ultimately may disagree with the latter in their construction

of substantive legal requirements. See General Electric Co. v.

Gilbert, 429 U.S. 125, 144-45, 13 FEP Cases 1657, 1664-66

(1976). The option of a private employer to disagree with

an agency’s interpretation, however, is extremely limited

when it faces the prospect of immediate OFCCP sanctions

or Title VII litigation should it not agree with an agency's

affirmative action requirements.

junctions against further implementation of the af-

firmative action program. This Court should indicate

that back pay or other monetary relief would un-

fairly penalize employers, universities, or others who

have attempted in good faith to comply with what

they perceived the law required as to their utilization

of minorities and women.”

This Court has indicated that the award of back

pay is discretionary, and equitable considerations may

render it inappropriate in particular cases. See Albe-

marle Paper Co. v. Moody, supra, 422 U.S. 405. The

issues in question here readily meet the standards set

forth in Albemarle. Much more is involved here than

the “mere absence of bad faith” (422 U.S. at 422, 10

FEP Cases at 1189) on the part of a particular em-

ployer. At question is employer liability for affirma-

tive good faith attempts to comply with what this

Court has identified in other cases as the “primary”

objective of Title VII—the removal of barriers to

minorities “that have operated in the past to favor

an identifiable group of white employees over other

employees.” See Griggs v. Duke Power Co., supra,

401 U.S. at 429-30, 3 FEP Cases at 177 (emphasis

added) cited with approval in Albemarle Paper Co.

v. Moody, supra, 422 U.S. at 417, 10 FEP Cases at

1187.

Although Respondent Bakke seeks no monetary damages

in this case, experience in other reverse discrimination suits

has indicated that damages claims such as back pay are a

foreseeable possibility. See McAleer v. American Telephone

& Telegraph Co., 416 F. Supp. 435, 12 FEP Cases 1473

(D.D.C. 1976); Hupart v. Board of Higher Education, 420

F. Supp. at 1108.

Additionally, the Fifth Cireuit has suggested that

where discrimination is “government imposed” by

the OFCCP, a back pay order would work a “sub-

stantial injustice” and should be carefully scrutinized

by the district court. See Stevenson v. International

Paper Co., 516 F.2d 1013, 10 FEP Cases 1386, 1395

(5th Cir. 1975).

Similarly, virtually all courts considering the issue

have found back pay to be an inappropriate remedy

where employers’ good faith reliance upon a state pro-

tective statute ultimately was found to constitute un-

lawful Title VII discrimination.“ These cases reveal

several factors analogous to the affirmative action

context. They consistently emphasize the “dilemma” ”

facing employers who did not have the benefit of a

definitive judicial or even quasi-judicial determination

See, e.g., Kober v. Westinghouse Electric Corp., 480 F.2d

240, 5 FEP Cases 1166 (3d Cir. 1973); Manning v. Internat '!

Union, 466 F.2d 812, 4 FEP Cases 1282 (6th Cir. 1972),

cert. denied, 410 U.S. 946, 5 FEP Cases 587 (1973) ; Williams

v. General Foods Corp., 492 F.2d 399, 7 FEP Cases 827 (7th

Cir. 1974) ; LeBlanc v. Southern Bell Telephone & Telegraph

Co., 333 F. Supp. 692, 3 FEP Cases 1083 (E.D. La. 1971),

aff'd, 460 F.2d 1228, 4 FEP Cases 818 (5th Cir. 1972),

cert. denied, 409 U.S. 990; Tuma v. American Can Co., 373

F. Supp. 219, 7 FEP Cases 851 (D.NJ. 1974). Accord,

Stryker v. Register Publishing Co., 423 F. Supp. 476, 14 FEP

Cases 748 (D. Conn. 1976), and cases cited therein at n. 2.

Although this Court indicated it was not ruling on this issue,

many of these cases were cited in Albemarle Paper, 422 U.S.

at 423 n. 18, 10 FEP Cases at 1189 n. 18.

* See, e.g., Kober v. Westinghouse, 480 F.2d at 249, 5 FEP

Cases at 1172; and Manning v. Internat I Union, 466 F.2d at

816, 4 FEP Cases at 1284-85.

as to the validity of their course of action.“ They

also point out that “[p]rior to a judicial determina-

tion, such as evidenced in this opinion an employer

can hardly be faulted for following the explicit provi-

sions of applicable state law.” (Emphasis added).”

Such equitable relief from monetary damage liability

is prospective in application,“ would be limited in

nature,“ and need not be extended to AAPs adopted

after this Court ultimately determines the extent to

which race- or sex-conscious employment decisions are

constitutionally or otherwise permissible.

Until such determination is made, employers will

be left in the untenable position of having to choose

between lawsuits—suits filed by state or federal agen-

cies, minorities or women for failure to establish a

result- or goal-oriented affirmative action program, or

suits filed by nonminorities or males for actions taken

pursuant to such programs if they are adopted. Fed-

eral contractors and subcontractors face a similar

problem. Approval of an AAP by a compliance agency

carries no guarantee of immunity from claims of

reverse discrimination, yet failure to be awarded such

“” Kober v. Westinghouse, 480 F.2d at 249, 5 FEP Cases

at 1172; and Tuma v. American Can Co., 373 F. Supp. at 231,

7 FEP Cases at 860-61.

„ Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1227,

3 FEP Cases 604, 610 (9th Cir. 1971); Williams v. General

Foods Corp., 492 F.2d at 408, 7 FEP Cases at 833.

* Burne v. Rohr Corp., 346 F.2d 994, 999, 4 EPD { 7924,

p. 6442 (S.D. Cal. 1972).

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002,

1007, 4 FEP Cases 946, 949 (9th Cir. 1972).

approval can lead to severe penalties, including de-

barment from future government contracts, cancella-

tion of existing agreements, and the possibility of

additional lawsuits. Until the present situation is

resolved, employers will continue to face the real

prospect of defending themselves in court regardless

of the employment practices they adopt.

CONCLUSION

In recognition of the facts and arguments pre-

sented to the Court by the Amicus, EEAC, it is re-

spectfully submitted that the administration of the

federal antidiscrimination statutes and executive pro-

grams would benefit greatly if this Court were to

adopt the guidelines suggested by the Amicus. Such

guidance from this Court would do much to eliminate

the present confusion surrounding employers’ obliga-

tions to undertake affirmative action to remedy in-

stances of underutilization of minorities and women.

Respectfully submitted,

KENNETH C. MCGUINESS

Ropert E. WILLIAMS

DoucLas S. McDOWELL

McGuiness & WILLIAMS

1747 Pennsylvania Ave., N.W.

Washington, D.C. 20006

Of Counsel:

RONALD M. GREEN

Vepper, Price, KAUFMAN,

KaAMMHOLZ & Day

800 Third Avenue

New York, New York 10022

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