Amicus Brief — Steelworkers v. Weber

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FILED

JAN 18 1979

MICHA

sos Silas |_MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-432

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

. Petitioner,

BRIAN F. WEBER, KAISER, ALUMINUM & CHEMICAL

CORPORATION, AND UNITED STATES OF AMERICA,

Respondents.

No. 78-435

KAISER ALUMINUM & CHEMICAL CORPORATION,

ie Petitioner,

BRIAN F. WEBER,

Respondent.

No. 78-436

UNITED STATES OF AMERICA AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioners,

Vv.

BRIAN F. WEBER, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

KENNETH C. McGUINESS

ROBERT E. WILLIAMS

DouGLas 8S. MCDOWELL

McGUINESs & WILLIAMS

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 296-0333

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE. ....................-..

THE FACTS AND DECISION BELOW ........................

SUMMARY OF ARGUMENT ......2.2.22.2.222..22.-.--cecceoseoeee-

TE eich cis testa eeibichiestiic cick dnctidbertankccinietitcntedsentcanins

I. Federal Agency Requirements And Potential

II.

ITI.

Title VII Liability Provide Strong Impetus For

Employers To Adopt Affirmative Action Plans..

A. Regulations Enforcing Executive Order

11246 Require Contractors To Develop and

Implement Goals and Timetables to Remedy

Any Statistical Underrepresentation of Mi-

norities or Women Even Where Employer

Discrimination Has Not Been Demonstrated..

B. Prudent Employers Often Must. Adopt Af-

firmative Action Plans to Avoid Potential

Findings of Discrimination Under Federal

PCED ctntnciheiadat aldaistivtephanidviaidehigesdninibdmoetianans

Court Decisions Raise Doubts About The Per-

missible Limits Of Affirmative Action And Cre-

ate A Dilemma For Employers That Only This

Se I ds catnictlntintennediseaonsabctatisiinebiinsapians

A. Conflicting Lower Court Decisions Provide

No Clear Guidance to Employers Seeking to

Comply Voluntarily With Title VII and E.O.

pc AR AE SRE AIP ry Awe Ce nae ear

B. Guidance From the Federal Enforcement Au-

thorities is Insufficient to Clarify the Issues..

The Court Should Formulate Principles That

Provide Guidance For Employers Who Must

Reconcile Affirmative Action Requirements With

Potential Reverse Discrimination Liability _......

TABLE OF CONTENTS—Continued

Page

A. The Liability Standards Which Should Gov-

ern Voluntary Affirmative Action................... 33

B. If Reverse Discrimination Claims Are Per-

mitted, Remedies Should Be Prospective

eR RST DISSE SANE a a 38

IND AE aE SOLE BPE PIO TT TID 41

ak SEER a On nen PO la

iii

AUTHORITIES CITED

Cases: Page

Albemarle Paper Company v. Moody, 422 U.S. 405

CIEE is nninssietbatedbiniscbicdnaiina secs tecobabeciome tas 21, 26, 37, 39, 40

Alexander Vv. Gardner-Denver Company, 415 U.S.

FNS ata OPER ONES AUR CS SOY BE 21

Board of Trustees of Keene State College v.

Sweeney, 47 U.S.L.W. 3330, 18 FEP Cases 520

GRIT bepescsiadiansinictibbecnsstelasieheteoeneieithcdlasibondaebadbidebdccebkeias 22

Burns V. Rohr Corp., 346 F. Supp. 994 (S.D. Cal.

I saibicnceticsiiiicnsibsontacihionpipcadiiiptansniiiechclieaatiliumpalieibpiinisy 41

Carter v. Gallagher, 452 F. 2d 315 (8th Cir. 1972)

(en banc), cert. denied, 406 U.S. 950 (1972)...... 25

City of Los Angeles v. Manhart, 46 U.S.L.W. 4347

FESS ROOD LTE TNT POS ETE EMME ME FF 3, 14, 29, 39

Cotton v. Hinton, 559 F.2d 13826 (5th Cir. 1977) .... 38

County of Los Angeles v. Van Davis (No. 77-

1553), petition for cert. granted... cen 8

Crown Zellerbach Corp. v. Marshall, 441 F. Supp.

1110 (E.D. La. 1977), appeal pending, No. 77-

3036 (5th Cir.), inj. pending appeal against

passover issued October 17, 1977 ........................ 7,47

Dayton Board of Education v. Brinkman, 438 U.S.

ee Daisies cobeeeniellas decile dlteatin nis tine ie 35

Detroit Police Officers Assn. v. Young, 446 F. Supp.

979 (E.D. Wis. 1978), appeal pending, No. 78-

Re I sshd aiid canals stn beibiliahatnbiecoseken 24

EEOC v. American Telephone and Telegraph Com-

pany, 419 F. Supp. 1022 (E.D. Pa. 1976), aff’d

556 F.2d 167 (8rd Cir. 1977), cert. denied, 46

aes I Re cldaitbeleiccvectnnntepdapetciiccsel 6, 25, 37

EEOC vy. Bethlehem Steel Corp., —— F. Supp.

' FEP Cases ——, 16 EPD (CCH)

ft 2 OD OG: | eee aneeeaIE 38

East Dayton Tool and Die Co. and Int’l Union of

Electrical, Radio & Machine Workers, AFL-CIO-

CLC, and Its Local 668, The, 239 NLRB No. 20,

99 LRRM 1499, petitions for review and applica-

tion for enfe’t pending, Nos. 78-2066 and 78-

2261 (D.C. Cir.) " 6

AUTHORITIES CITED—Continued

Page

East Texas Motor Freight Systems, Inc. v. Rodri-

Gua, Ge Was See Gib e) 3

Ffestone Synthetic Rubber & Latex Co., Orange,

Texas, Case No. 78-OFCC-13, Dec. 8, 1978, Daily

Labor Report No. 243, Dec. 18, 1978 at F-1 _..... 28

Florida Trailer & Equipment Co. v. Deal, 284 F.2d

RR CERISE ee Oa CO 23, 38

Franks v. Bowman Transportation Co., Inc., 424

ID Wahi icihiiincchnicpisBeieactintintinitbasigicadhtieds ses 34

Furnco Construction Corp. v. Waters, —— U.S.

——, 46 U.S.L.W. 4966 (1978) .....00000. 3, 22, 25, 34

Gardner Vv. Westinghouse Broadcasting Co., 434

MCI MI iia tice Alicea ne ctepints terion cue Sedes 3

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

ERAS TT Oe EM PONT Crt T aR AR eee 29

Griggs V. Duke Power Co., 401 U.S. 424 (1971)... 24, 31

Hazelwood School Dist. et al v. U.S., 483 U.S. 299

A tide Milehbsscsine A aalehites hich Ddarcacsttehreteielicin adeeb 22

Hiatt v. City of Berkley, 18 FEP Cases 233 (Cal.

| REALS See: Sk Oe RP aD 24

Hupart v. Board of Higher Education of the City

of N.Y., et al., 420 F. Supp. 1087 (S.D.N.Y.

SEE IRE eS A RARE ATR FF OTTER ON NOL 36, 39

Aull, et al. v. Cason, et al., 1 Civ. Nos. 38801, 40034,

41036 (Cal. Ct. App., December 28, 1978) _......... 24

Illinois Tool Works, Inc. v. Marshall, —— F. Supp.

, 17 FEP Cases 520 (N.D. Ill. 1978) ............ 17

IBEW Local 35 v. City of Hartford, et al.,

F. Supp. ——, 18 FEP Cases 1338 (D. Conn.

PITRE a 1B S88 9-2 a eR ON 25

Int'l. Brotherhood of Teamsters v. U.S., 431 U.S.

ts MEINIEIN "sh. isi covscanaiiad eamiientanionapiahAcecsads ties damicae 8, 21, 22

Int'l. Harvester Co. vy. Marshall, et al., Cause No.

IP-77-159-C (S.D. Ind. 1977), temporary -re-

straining order dated March 25, 1977 ............. 7

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

Se Ue I. UID icicle cceciles 40, 41

AUTHORITIES CITED—Continued

Page

LeBlanc v. Southern Beil Telephone & Telegraph

Co., 333 F. Supp. 602 (E.D. La. 1971), aff'd 460

F.2d 1228 (5th Cir. 1972), cert. denied, 409 U.S.

OU Rae hoe er 36, 40

Lemon Vv. Kurtzman, 411 U.S. 192 (1973) ..-............ 34

Lewis v. Tobacco Workers, 577 F.2d 1135, 17 FEP

Cases 622 (4th Cir. 1978), cert. denied, No. 78-

GG. Ae Be ie... 25

Local 189, United Papermakers & Paperworkers

v. U.S., 416 F.2d 980 (5th Cir. 1969), cert. de-

salen ST Gee Te hahaa nthe iatctresesennsicinniee 30

McAleer v. American Telephone & Telegraph Co.,

416 F. Supp. 435 (D. D.C. 1976), opinion with-

drawn, 138 EPD (CCH) 4 11,624 _..........00000..... 39

McDonald yv. Santa Fe Transportation Co., 427

er Ce aah a sled irate snetinne 5, 30

Manning v. Automobile Workers, Local 913, 466

F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S.

Me RO SEER ee hee 40, 41

Milliken v. Bradley, 418 U.S. 717 (1974)............--.. 35

Nashville Gas Co. v. Satty, 484 U.S. 136 (1977) -... 18

Occidental Life Insurance Co. of Calif. v. EEOC,

PB EERE SA ee eC 29

Pan American World Airways v. Marshall, 439

P. Gepe. GV. CRIS be £000) 2... 17, 21

Pierson Vv. Ray, 386 U.S. 547 (1967) ......................... 13, 35

Prate v. Freedman, 583 F.2d 42 (2nd Cir. 1978) .... 26

Regents of the University of Calif. v. Allan Bakke,

The, 98 Sup. Ct., 48 U.S.L.W. 4896 (1978) ......3, 24, 25,

28, 31, 35, 37

Richards Vv. Griffith Rubber Mills, 300 F. Supp. 338,

2 EPD 710,001 (D. Ore. 1969) ............................. 36

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

(S.D. Ohio 1971), aff'd in rel. part after re-

mand, 7 EPD § 9395 (S.D. Ohio 1973) ................. 35

Robinson V. Lorillard Corp., 444 F.2d 791 (4th Cir.

1971), cert. dismissed, 404 U.S. 1006 (1971)...... 80

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

(9th Cir. 1971) -....... 41

AUTHORITIES CITED—Continued

Page

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

1002 (9th Cir. 1972)... 41

Sledge v. J. P. Stevens & Co., 585 F.2d 625, 18

FEP Cases 261 (4th Cir. 1978) 00. 24

Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th

Cir. 1971), cert. denied, 404 U.S. 991 00000000... 30

Stevenson Vv. Int'l. Paper Co., 516 F.2d 1013 (5th

I I isiapetinsssalesesststalccsouds nah 40

Stewards Vv. American Airlines, —— F.2d ——, 17

FEP Cases 24 (7th Cir. 1978)....000000000 eee 38

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

ee ee es ea 40

Sunstrand Corp. Vv. Marshall, 17 FEP Cases 432

SN fp: Rat ag Reh Lar 7 tane i SP Od 17

Swann, et al. v. Charlotte-Mecklenburg Board of

Education, et al., 402 U.S. 1 (1971)......000200-. 35

Trans World Airlines v. Hardison, 432 U.S. 63

UE EA TD ire ties SARE AS Ree 3, 5, 29

Tuma Vv. American Can Co., 373 F. Supp. 219 (D.

Is I ia a 40, 41

United Air Lines v. Evans, 431 U.S. 395 (1977)... 3, 38

United States v. Allegheny-Ludlum Industries, Inc.,

517 F.2d 826 (5th Cir. 1975), cert. denied, 425

| RAO Te SAS ENTS hae eo eT 10, 23

United States v. Armour Co., 402 U.S. 673 (1971).. 38

United States v. East Texas Motor Freight System,

Inc., 564 F.2d 179 (5th Cir. 1977) ........................ 20

United States v. Lee Way Motor Freight, Inc., ——

F. Supp. ——, 15 FEP Cases 1385 (W.D. Okla.

1977), appeal pending, Nos. 78-1096, 78-1097

Oe ee es I a 20

Van Davis vy. County of Los Angeles, 566 F.2d

1334 (9th Cir. 1977), cert. granted, No. 77-1553,

46 U.S.L.W. 3780 (1978), decision pending ........ 23, 25

Wernet Vv. Pioneer Foods Co., 6 EPD § 8799 (D.

Ohio 1972), aff’d sub nom., Wernet ¥. Amal.

Meat Cuttere and Butcherman Local 17, 484

ee 36

vii

AUTHORITIES CITED—Continued

Page

Westinghouse Elec. Corp. and Int’l. Union of Elec-

trical Radio & Machines Workers, AFL-CIO-

CLC, 239 NLRB No. 19, Oct. 31, 1978, petitions

for review and application for enfe’t pending,

Nos. 78-1769, 78-1777, and 78-1805 (4th Cir.)

and Nos. 78-2067, and 78-2262 (D.C. Cir.) ......... 6

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

(, Go Oe. | | : CRRA Spey RRs ioe 40, 41

Wood vy. Strickland, 420 U.S. 308 (1975) ................. 36

Yott v. North American Rockwell Corp., 428 F.

Supp. 763 (C.D. Cal. 1977) ...........- Me 30

Statutes and Other Authorities:

Civil Rights Act of 1866, 42 U.S.C. § 1981 .............. 80

EEOC Decision No. 75-147, January 13, 1975, '

2 CCH Employment Practices Guide {| 6447 ........ 30

EEOC Decision 74-76, January 18, 1974, CCH

Employment Practices Guide {| 6446 ...............-... 30

Presidential Executive Order 11246 (30 Fed. Reg.

12319 (1965), as amended by 32 Fed. Reg. 14302

(1967), and 43 Fed. Reg. 46501 (1978)) -.....- passim

ES TERESI RADIO AL LT III ER IIT 17

Presidential Executive Order 12086 (43 F-.R.

O6504) Ootebet 10, ISTO Winkie. 19

Recommendation No. 75-2 of the Administrative

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

CRT ie ch nace pteangn tania 17

Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000S OF 809.) ---22n<.--.u 2... cnrversencccsenenessteosasnssecseece 2

NE I SRD on i ccsapakeniayeonimetneosanecti

I IEE TLD sn snarnsguuchtneeanvioutanonninipiot 29

oc cscacnrcangnaiennnnnaretneeniont 29, 30, 37

Regulations and Court Rules:

43 F.R. 49240 et seq., as corrected 43 F.R. 51400... 15

BS WTR. GOBIG; © GODT aise cannccscscrccnsccnscescsccecsenscveseens 17

viii

AUTHORITIES CITED—Continued

Page

Revised Order No. 4, 43 F.R. 49249, et seq., Part

SIE seatsicthinsecsinieiaetdileen her mkeeelbciansacsbicia ditt uence 15

Ce eS, ane 17

PPA ee Uh OT he i eed 15

8 A SS Re rk 15

48 F.R. 49258, § 60-2.24 (e@) ooo... nnn. eccccccenecenseecceeee 4

43 F.R. 49259, Part 60-30 _.. es erlsialse EPS 17

ya BRT treme ey re 30

EEOC Affirmative Action Guidelines, 44 F.R.

4422, January 19, 1979 ....0000.00.00000000... 27, 28, 29, 31, 32

EEOC Policy Statement, 35 F.R. 18692 ................ 30

Legislative Materials:

Hearings on S. 2115, etc., Before the Subcommittee

on Labor of the Senate Committee on Labor and

Public Welfare, 92nd Co., 1st Sess. 77 (1971).... 16, 21

Miscellaneous:

Flanagan, Milkovich, Freeman, Peterson, Bayer &

Glazer, Perspectives on Availability, EEAC

§ ||) OC ME EM me Lents mwin kV ST ES TES 16

Major Federal Equal Employment Opportunity

Programs for the Private Sector Should be Con-

solidated, A Report by the Comptroller General

of the United States (HRD-78-72), June 9, 1978.. 2

Nash, “Affirmative Action Under Executive Order

11246,” 46 N.Y.U. L. Rev. 225 (1971) ................. 16

Mirengoff, “Weber v. Kaiser, Impact and Alterna-

tives” Equal Employment Practice Guide, Fed-

era] Bar Association, October, 1978 -................... 40

“A Preliminary Report on the Revitalization of

the Federal Contract Compliance Program,”

U.S. Department of Labor Office of Federal Con-

tract Compliance Programs Task Force, Sep-

COO TEE oss cpcnccecnessdtiseinees- ae ... 18-19

Silberman, “The Road to Racial Quotas,” Wall St.

poy et UO Ue he OU ee 11

AUTHORITIES CITED—Continued

Page

Appendix:

July 20, 1977, policy clarification memorandum of

OFCCP Director Weldon Rougeau, reported at

Daily Labor Report No. 146, July 28, 1977, pp.

A-10 through A-11 (BNA) .......0..00202000000200000--- la

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-432

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

. Petitioner,

BRIAN F. WEBER, KAISER, ALUMINUM & CHEMICAL

CORPORATION, AND UNITED STATES OF AMERICA,

Respondents.

No. 78-435

KAISER ALUMINUM & CHEMICAL CORPORATION,

Petitioner,

BRIAN F. WEBER,

Respondent.

No. 78-436

UNITED STATES OF AMERICA AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

< Petitioners,

BRIAN F.. WEBER, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

The Equal Employment Advisory Council (“EEAC”),

with the consent of all parties, respectfully submits

this brief as Amicus Curiae.

INTEREST OF THE AMICUS CURIAE

This case presents questions of great importance

to employers throughout the United States, including

EEAC’s members, who are subject to the provisions

of Title VII of the 1964 Civil Rights Act (42 U.S.C.

§ 2000e et seg.) (Title VII) and Presidential Execu-

tive Order 11246 (30 Fed. Reg. 12319 (1965), as

amended by 32 Fed. Reg. 14302 (1967), and 43 Fed.

Reg. 46501 (1978), (E.O. 11246).* At issue is

whether these regulatory schemes permit an em-

ployer and union to enter voluntarily into a racially-

based affirmative action program designed to remedy

underrepresentation of minority employees in certain

segments of the employer’s workforce when there

has been no determination of past employment dis-

crimination by the particular employer.

Most of EEAC’s member representatives are

charged with corporate responsibility for voluntary

compliance with the federal civil rights laws.? As

There are approximately 325,000 employer contractors

subject to the requirements of E.O. 11246. They employ about

30 million persons. See Major Federal Equal Employment

Opportunity Programs for the Private Sector Should be Con-

solidated, A Report by the Comptroller General of the United

States (HRD-78-72), June 9, 1978, p. 3.

? EEAC is a nonprofit association organized to promote the

common interest of employers and the general public in the

development and implementation of sound government poli-

cies, procedures and requirements pertaining to nondiscrim-

equal employment officers of employers which, for the

most part, are federal contractors, they must at-

tempt to determine not only their federal nondis-

crimination and affirmative action obligations, but

also the potential liability which those requirements

might create to nonminority employees and applicants

who may assert that these affirmative action efforts

are unfair and discriminatory.

The decision of the Fifth Circuit majority below,

holding that the program adopted by Kaiser and the

Steelworkers violated Title VII, illustrates and in-

tensifies the dilemma created by these competing in-

terests. It places employers in the position of facing

potential liability to nonminority or male employees

because of good faith attempts to comply with the

inatory employment practices. Its membership comprises a

broad segment of the employer community in the United

States, including both individual employers and trade and in-

dustry associations whose employer-members have a common

interest in the foregoing purpose. Its governing body is a

Board of Directors composed primarily of experts and spe-

cialists in the field of equal employment opportunity.

Because of its interest in issues pertaining to equal employ-

ment, EEAC has filed briefs as Amicus Curiae in a number of

other recent cases raising important equal employment issues.

See, e.g., The Regents of the University of California v. Allan

Bakke, 98 Sup. Ct. 2733, 48 U.S.L.W. 4896 (1978) ; County of

Los Angeles v. Van Davis (No. 77-1553), petition for cert.

granted; Furnco Construction Corporation v. Waters, 46

U.S.L.W. 4966 (1978); Int’l Brotherhood of Teamsters vy.

United States, 431 U.S. 324 (1977) ; East Texas Motor Freight

Systems, Inc. v. Rodriguez, 431 U.S. 395 (1977) ; United Air

Lines, Inc. v. Evans, 431 U.S. 553 (1977) ; Gardner v. West-

inghouse Broadcasting Company, 434 U.S. 984 (1978) ; and

Trans World Airlines v. Hardison, 432 U.S. 63 (1977).

requirements found in statutes, executive orders and

other government directives intended to prevent dis-

crimination, and also to comply with regulations un-

der E.O. 11246 and increase the utilization of mi-

norities and women.

Since EEAC’s organization, our members have en-

gaged in continuing efforts to ascertain the permis-

sible limits of employer affirmative action. There

is a strong commitment among EEAC members to

affirmative outreach and recruiting practices de-

signed to increase the employment of minorities and

women.* Employers differ, however, in their views

as to the extent to which they may voluntarily im-

plement numerically based programs to increase the

hiring, training or promotion of minorities when the

employer has not been found to have discriminated

by a judicial tribunal or administrative agency, or

when the beneficiaries of the preferences may not be

identified as victims of such discrimination.

Because EEAC’s members represent a wide variety

of types of businesses, they have had both common

and contrasting experiences with affirmative action.

Almost all EEAC members are federal contractors

and currently are implementing affirmative action

plans to increase the numbers of women and minori-

* These include but are not limited of: contacts with minor-

ity organizations to refer minority applicants; briefing ses-

sions and plant tours with minority applicants; participation

in “Job Fairs” and other recruiting programs at schools and

colleges; motivation programs; advertising in minority-

oriented media such as newspapers and radio stations; and

special training programs to increase the eduational and skill

levels of minority employees. See generally, 43 F. R. 49253,

§ 60-2.24(e).

ties in their employ. Government contracting require-

ments, which are more stringent than Title VII’s,

compel them to adopt goals and timetables *» remedy

any underutilization of minorities or women in any

job category, regardless of whether the imbalance is

connected to any showing of past discrimination. The

standards and techniques utilized by compliance offi-

cers to enforce these requirements have varied widely,

especially as to the proper determination of the avail-

ability of minorities and women. See infra, pp. 16 &

18. Enforcement often has been so rigid that the

contractors have had no real choice but to establish

and reach the numerical goals through preferential

employment practices or face government sanction

procedures. Consequently, a broad ruling by this

Court setting aside the affirmative action program in

this case potentially could expose them to a barrage

of reverse discrimination suits.‘

Other EEAC members are parties to settlement or

conciliation agreements, or consent decrees, which

contain varying types of affirmative or preferential

relief for women and minority workers. Thus, hav-

ing undertaken, under court supervision or volun-

tarily, to change their employment practices to dis-

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

claim of a person, not a member of a class which is intended

to be benefitted by affirmative action program, 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 (1976); and Trans World Airlines v. Hardison, 432 U.S.

63, 71-72 (1977).

pose of allegations of discrimination, they are deeply

concerned that a ruling adverse to Kaiser in this case

could subject those agreements or decrees to reverse

discrimination challenge resulting in employer lia-

bility.°

Moreover, employers face differing reactions from

unions to affirmative action efforts, especially when

seniority systems must be modified or set aside. For

example, in the instant case, the Steelworkers adopted

a nationwide policy of preferential treatment of mi-

norities for admissions to craft training programs.

(Steelworkers Cert. Pet. at 4-5). Other unions have

demanded that employers provide them with exhaus-

tive affirmative action and other EEO-related data

which the unions openly plan to use as the basis of

race and sex discrimination suits against the employ-

ers.° By contrast, other unions have strenuously re-

sisted remedies imposed to remedy alleged past dis-

crimination,” or have objected to government demands

5’ Judge Wisdom stated below that “the majority opinion

leaves in question the status of consent decrees.” (Pet. App.

at 26a). See also fn. 36, infra.

*See e.g., Westinghouse Electric Corporation and Int'l

Union of Electrical Radio and Machine Workers, AFL-CIO-

CLC, 239 NLRB No. 19, October 31, 1978, petitions for review

and application for enfe’t pending Nos. 78-1769, 78-1777, and

78-1805 (4th Cir.), and Nos. 78-2067 and 78-2262 (D.C. Cir.) ;

and The East Dayton Tool and Die Co. and International

Union of Electrical, Radio and Machine Workers, AFL-CIO-

CLC, and Its Local 668, 2839 NLRB No. 20, October 31, 1978,

petition for review cnd application for enfc’t pending, Nos.

78-2066 and 78-2261 (D.C. Cir.).

™ See e.g., EEOC v. American Telephone & Telegraph Co.,

556 F.2d 167 (8d Cir. 1977), cert. denied, 46 U.S.L.W. 3803

(1978), and especially the petitions for writs of certiorari

of the Alliance of Independent Telephone Unions, the Com-

that contractors alter neutral seniority systems in a

manner that would violate existing collective bar-

gaining agreements.’ Thus, although employers must

weigh such practical considerations when attempting

to determine the consequences of their approach to

affirmative action, their experiences vary widely de-

pending upon the unions with which they are re-

quired to deal.

It is clearly apparent, therefore, that EEAC’s

members have substantial, albeit varied, interests in

the legal issues presented to the Court in this case.

As a group, EEAC’s primary concern is that the

uncertainty about the permissible extent of voluntary

affirmative action finally be resolved one way or an-

other, so that employers will know what steps they

may lawfully undertake in the future. As explained

below, it is not possible for employers to find any

clear guidance or direction on these issues in existing

court decisions or government policy pronouncements.

Indeed, as we argued in our brief supporting the

petitions for certiorari (p. 16), the present state of

the law is such that employers and federal contrac-

tors have little recourse but to request this Court to

clarify what types of affirmative action are legally

permissible.

munications Workers of America and the Telephone Coordi-

nating Council TCC-1, International Brotherhood of Electrical

Workers.

8 See e.g., Crown Zellerbach Corp. v. Marshall, 441 F. Supp.

1119 (E.D. La. 1977), appeal pending, No. 77-3036 (5th Cir.) ;

and International Harvester Company v. Marshall, et al.,

Cause No. IP 77-159-C (S.D. Ind.), temporary restraining

order dated March 25, 1977.

Since its organization, EEAC’s members—which

comprise a broad cross-section of employer interests

—have engaged in extensive discussions in an at-

tempt to adopt a consensus position to argue in cases

raising challenges to voluntary affirmative action ef-

forts. These discussions have demonstrated that

there is no unanimity of opinion among employers

concerning the legality of the affirmative action pro-

gram adopted by Kaiser and the Steelworkers in the

instant case, or by employers in other cases. Because

of this lack of agreement, we take no position on the

substantive legality of the program adopted here.

On the other hand, there is a clear consensus among

employers that it is essential that this Court estab-

lish standards that will clarify the permissible scope

_ of affirmative action in private sector employment in

the future and, at the same time, protect employers

against liability for actions taken in a good faith

attempt to carry out affirmative action obligations in

the present context of legal uncertainty. Because

EEAC’s members’ interests in this case are at once

so substantial and so complex, EEAC respectfully

submits this brief amicus curiae in an effort to assist

the Court by discussing the legal and practical con-

texts in which affirmative action controversies have

arisen and by suggesting standards by which these

issues migh* be resolved.

THE FACTS AND DECISION BELOW

The facts of this case are fully set forth in the

party briefs and decision of the Fifth Circuit. For

present purposes, they may be summarized as follows.

In 1974, Kaiser and the United Steelworkers of

America (“Steelworkers”) attempted to cure a siz-

able underrepresentation of minorities in Kaiser’s

craft workforce by entering into an agreement es-

tablishing an entrance ratio to a craft training pro-

gram at each of 15 plants.

Under the program adopted, eligible employees

were divided into minority and nonminority groups.

Openings were to be filled on a one-for-one basis in

order of seniority from within each group. If selec-

tion for these openings had been based solely on

seniority, and if race had not been taken into ac-

count, no minority employees would have been eligi-

ble to be admitted. As a result, the underrepresenta-

tion of minority employees would have continued with

no foreseeable likelihood of abating.

Beginning before 1969, and continuing up until

the adoption of the 1974 agreement, Kaiser was

under pressure from its federal contract compliance

agency to increase its utilization of minorities in

craft positions in order to comply with E.O. 11246.

The program was adopted at least in part out of

concern for possible enforcement proceedings and

sanctions by the Office of Federal Contract Compli-

ance Programs (OFCCP). (Pet. App. 2a-3a; Kaiser

Cert. Pet. at 3).°

Kaiser also was faced with the fact that its em-

ployees’ bargaining representative, the Steelworkers,

had embarked upon a nationwide program to increase

the number of minority craftsmen and to award

craft-training vacancies to qualified blacks and other

minorities until their statistical underrepresentation

°“Pet. App.” references are to the appendix to Kaiser’s

petition.

was eliminated. (Steelworkers Cert. Pet. at 4-5). The

same craft training program which it negotiated with

Kaiser was contained in Steelworkers’ agreements

with other aluminum companies, the can industry

and shortly was to be included in the national steel

industry consent decree. See United States v. Alle-

gheny-Ludlum Industries, 517 F.2d 826 (5th Cir.

1975), cert. denied, 425 U.S. 944 (1976).

Brian Weber—a white employee at the Gramercy

plant who had more seniority than some blacks se-

lected—filed a Title VII suit alleging that he had

been discriminated against on the basis of his race

beeause he had not been selected for the program.

The district court agreed.

On appeal, the Fifth Circuit majority found the

craft admission program violated Title VII, and ruled

that “[t]here can be no basis for preferring minority

workers if there has been no discriminatory act that

displaced them from their ‘rightful place’ in the

[particular employer’s] employment scheme.” (Pet.

App. 9a). The majority also rejected assertions that

the training program was permissible because it was

designed to correct past “societal” discrimination.

(Pet. App. 16a). It reasoned that, in the absence of

prior discrimination against an individual by the

particular employer, a racial quota loses its character

as an equitable remedy and “must be banned as an

unlawful racial preference prohibited by Title VII,

§ 703(a) and (d).” (Pet. App. 15a).

The majority also rejected assertions that the im-

plementing ratio contained in the craft program

could be supported independently by reliance upon

E.O. 11246. It concluded, broadly, that attempts of

the OFCCP to distinguish a numerical goal from a

quota have “proved illusory, and most such goals

suggested by the OFCC[P] can fairly be character.

ized as quotas.” (Pet. App. 10a).” The majority then

held that “[{ijJf E.O. 11246 mandates the training

program at issue here, in the absence of any prior

hiring or promotion discrimination, the executive

order must fall before this direct congressional pro-

hibition [in Title VII].” (Pet. App. 21a, emphasis

in original).

In dissent, Judge Wisdom stated that the standard

established by the majority was too strict. In his

view, the majority decision posed an impossible di-

lemma for employers: the choice between Title VII

discrimination proceedings or E.O. 11246 sanctions

if an affirmative action plan is not adopted, and the

possibility of “reverse discrimination” suits by dis-

gruntled white employees if the plan is put into ef-

fect. He would have ruled that an affirmative action

plan, adopted in a collective bargaining agreement,

which is a reasonable remedy for an arguable viola-

tion of Title VII, should be upheld. He felt that a

zone of reasonableness, within which the employer

and the union would be sheltered from liability, would

encourage private settlements. (Pet. App. 28a-29a).

SUMMARY OF ARGUMENT

The Court’s ruling here could do much to resolve

a dilemma now facing employers. Presently, employ-

ers who fail to adopt affirmative action plans to in-

On this point, the majority relied on Silberman, “The

Road to Racial Quotas,” Wall St. J., Aug. 11, 1977, at 12,

col. 4.

crease the numbers of minorities and women in their

workforces risk loss of their federal contracts, expo-

sure to agency complaints, and widespread publicity

of alleged discrimination. On the other hand, em-

ployers who do adopt affirmative action programs

which give job preferences to minorities and/or

women may be found to have committed “reverse

discrimination” against nonminority or male employ-

ees, who can be expected to demand monetary or

other relief. Employers are thereby placed in the

ironic and unfair position of facing liability to non-

minorities and males because of good faith attempts

to comply with requirements found in statutes, ex-

ecutive orders or other government directives in-

tended to prevent discrimination against minorities

and women. This dilemma is compounded by a sig-

nificant split in court opinion over the permissibility

of preferential treatment of minorities or women

who have not been shown to be individual victims of

discrimination by the particular employer involved.

Guidance is required from this Court that cannot

be expected from the federal enforcement agencies.

EEOC’s recently adopted Affirmative Action Guide-

lines, which would sanction the broadest forms of

affirmative action even where employer discrimina-

tion has not been demonstrated, would not be binding

upon courts hearing individually brought reverse dis-

crimination suits. Moreover, the chances of court

reliance upon the Guidelines is diminished by the

fact that, on several points, the Guidelines appear to

be inconsistent with the government’s own petition

in this case. The most troublesome conflict is caused

by the government’s position here that if there is no

reasonable ground for concluding that the employer

may have discriminated in the past, a race-conscious

program may, as the court of appeals stated, “lose

its character as an equitable remedy and * * * be

banned as an unlawful preference prohibited by Title

VIL” (Cert. Pet. at 11).

EEAC does not take a position on the validity of

the plan in question here. However, because employ-

ers now are forced to enact affirmative action pro-

grams without benefit of any clear legal standards,

we submit that even if this Court agrees in principle

with the majority below, it should not “charg[e]”

potential reverse discrimination defendants “with

predicting the future course of [the] law.” Pierson

v. Ray, 386 U.S. 547, 557 (1967). Rather, until the

permissible limits of voluntary affirmative action are

established, the entity which enacts an affirmative

action plan should not be held liable to employees who

allege the plan is discriminatory if the plan was

adopted:

a. in a good faith attempt to comply with the

requirements of federal statutes and based

upon a reasonable conclusion that it might

be subject to liability thereunder; or

b. in a good faith attempt to comply with the

requirements of E.O. 11246, or its support-

ing regulations; and

c. its actions in implementing the plan were

reasonably related to these good faith objec-

tives,

These standards should be applied to affirmative

action efforts undertaken voluntarily, in a collective

bargaining agreement, conciliation agreement, settle-

ment agreement, consent decree, or otherwise. More-

over, the reasonableness of the employer’s affirmative

action efforts should be judged under the facts and

legal standards existing when the plan was enacted.

In addition, even if reverse discrimination claims

are upheld, remedies available to a “reverse dis-

criminatee” should be prospective only and limited to

injunctions against further implementation of the

offending plan or portions thereof. If this Court af-

firms the decision below, it should indicate that back

pay or other monetary relief would unfairly penalize

employers who have attempted in good faith to com-

ply with government requirements for the increased

utilization of minorities or women. As in City of

Los Angeles v. Manhart, 46 U.S.L.W. 4347, 4351-

4354 (1978)—where retroactive monetary relief was

denied to known discriminatees—the employer here is

faced with an unclear state of the law and is caught

in a dilemma. Monetary or other retrospective reme-

dies, therefore, would work an undue hardship on em-

ployers who had acted in “good faith” to obey the law.

ARGUMENT

I. FEDERAL AGENCY REQUIREMENTS AND PO-

TENTIAL TITLE VII LIABILITY PROVIDE

STRONG IMPETUS FOR EMPLOYERS TO ADOPT

AFFIRMATIVE ACTION PLANS.

A. Regulations Enforcing Executive Order 11246 Re-

quire Contractors To Develop and Implement

Goals and Timetables to Remedy Any Statistical

Underrepresentation of Minorities or Women Even

Where Employer Discrimination Has Not Been

Demonstrated.

Undoubtedly, the most forceful stimulus to em-

ployer affirmative action is Executive Order 11246

and supporting affirmative action regulations issued

by the Secretary of Labor and administered through

the Office of Federal Contract Compliance Programs

(OFCCP).” As noted above, most of EEAC’s mem-

bers are among the 325,000 employers who also are

federal contractors.

The Order and regulations require federal con-

tractors to undertake a written workforce analysis

and develop a written affirmative action compliance

program for each of their establishments.” If a con-

tractor’s “utilization” of available minorities or

women is numerically deficient, it must develop “goals

and timetables” to overcome the underutilization in

any particular job group. 43 F.R. 49250-51, §§ 60-

2.10, 60-2.12. Government officials have stated re-

peatedly that, unlike Title VII, the statistical im-

balances that trigger these affirmative action require-

11 See 43 F.R. 49240, et seq., as corrected 43 F.R. 51400.

% Revised Order No. 4, 45 F.R. 49249, et seq., Part 60-2.

ments need not be connected to any showing of past

or present discrimination.”

In determining whether minorities or women are

sufficiently utilized in the employer’s workforce, the

proportion of protected group members in that work-

force is compared with the availability of these groups

in the appropriate labor market area. A determina-

tion of such availability forms the basis for develop-

ing goals and timetables. There is, however, no com-

mon understanding of the concept within the federal

sector or among interested parties in the private sec-

tor. Consequently, this causes several problem areas

which complicate the enforcement of E.O. 11246. As

set forth in Flanagan, Milkovich, Freeman, Bayer

& Glazer, Perspectives on Availability, EEAC (1978),

p. 3, these include:

a) The lack of a single, accepted definition of

availability ;

b) Uncertainty as to the proper standard of

comparison ;

c) Doubt as to the appropriate labor market

area; and

d) The difficulty of computing availability with-

in the confines of federal regulation.

Compare the standard of Hazelwood v. U.S., 433 U.S.

299, 308 n.13 (1977) (qualified) with EEOC’s Af-

firmative Action Guidelines, 44 F.R. 4422, 4425

(“qualified or qualifiable’’).

18 See Hearings on S. 2115, etc., Before the Subcommittee

on Labor of the Senate Committee on Labor and Public Wel-

fare, 92nd Cong., 1st Sess. 77, 88 (1971) (“Hearings”) ; Nash,

“Affirmative Action Under Executive Order 11246,” 46 N.Y.U.

L. Rev. 225, 229-230 (1971).

As a result, there often are differences of opinion be-

tween compliance and contractor personnel over

whether underutilization actually exists. Neverthe-

less, failure to comply with agency demands subjects

the contractor to severe sanctions, such as cancella-

tion or termination of all federal contracts (or any

part thereof); withholding progress payments on a

contract; or, debarment from future contracts. See

E.0. 11246, Section 209; 43 F.R. 49246, § 60-1.26;

43 F.R. 49249, § 60-2.2(b); and 43 F.R. 49259, § 60-

30.

Even more compelling pressures on employers stem

from past interpretations of OFCCP and Labor De-

partment officials, with which we disagree, that regu-

lations permit them to declare a contractor nonre-

sponsible because of the alleged affirmative action

program deficiencies, and then to pass over that con-

tractor for at least two additional contracts even

before any hearing has been held on the compliance

issues.**

14 See, e.g., Pan American World Airways Vv. Marshall, 439

F. Supp. 487 (S.D.N.Y. 1977) ; Crown Zellerbach v. Marshall,

supra, 441 F. Supp. 1110, appeal pending, No. 77-3036 (5th

Cir.), injunction pending appeal against passover issued

November 17, 1977; Sundstrand Corp. v. Marshall, 17 FEP

Cases 482 (N.D. Ill. 1978) ; and Illinois Tool Works v. Mar-

shall, _— F. Supp. ——, 17 FEP Cases 520 (N.D. Ill. 1978).

These decisions cast serious doubt on the validity of the pass-

over policy. A study by the Administrative Conference of the

United States found that “. . . in practice cancellation is rarely

used.” The more common sanction “. . . is the declaration of

nonresponsibility 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

In addition to these rigorous sanctions for not

complying with OFCCP regulations, federal con-

tractors have faced a confusing lack of standards

greater than the uncertainty about their Title VII

obligations. These problems were highlighted by an

internal OFCCP Special Task Force created to re-

view that agency’s performance and to develop a plan

for its improvement. In its Preliminary Report,”

the Task Force observed that (Report at 147):

[T]he nonresponsibility determination and pass-

over concepts assume that both the Government

and the contractor possess some reasonably finite

knowledge of the scope and reach of equal em-

ployment opportunity law. In reality, EEO law

is constantly evolving with many issues largely

unsettled.”

_ The adverse consequences attendant upon the im-

position of contract sanctions without definitive en-

forcement standards was highlighted by the Task

Force, which observed:

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

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

(1975).

1° “A Preliminary Report On The Revitalization of the Fed-

eral Contract Compliance Program”, U.S. Department of

Labor, Office of Federal Contract Compliance Programs Task

Force, September, 1977 (‘Report’).

%* Mr. Justice Powell in his concurring opinion in Nashville

Gas Company v. Satty, 434 U.S. 186, 148 (1977), voiced the

same concern in a somewhat different context when he ob-

served that “[g]liven the meandering course that Title VII

adjudication has taken, the final resolution of a lawsuit in

this Court often has not been possible because the parties in

the lower courts proceeded on what was ultimately an errone-

ous theory of the case.”

[B]ecause of latitude compliance officials have

in making compliance determinations (arising

largely from the absence of reasonably precise

data on availability, and the absence of reason-

ably definitive written guidance setting forth

definitions of discrimination and criteria for

proving and remedying such discrimination),

contractors argue that the application of the

nonresponsibility and passover procedures sub-

jects them to arbitrary and capricious decisions.

[Report at 145].

In the view of the Task Force, such complaints have

merit:

[U]ntil such time as OFCCP codifies and dem-

onstrates its ability to require rigid adherence

by compliance officers to reasonably definitive

and objective standards for compliance decisions

the fears of contractors will remain somewhat

justified. [Report at 147].”

A prime example of the inconsistencies faced by

employers attempting to comply with the require-

ments of Title VII and E.O. 11246 is the OFCCP’s

17 The Task Force found that the confusion was caused in

part by the fact that the government’s contract compliance

program was fragmented among numerous compliance agen-

cies spread among many different executive departments.

(Report at 42-45). On October 5, 1978, President Carier

signed Executive Order 12086 (43 F.R. 46501), consolidat-

ing the contract compliance program into the Department of

Labor. The primary purpose of the reorganization was to

provide better coordination for E.O. 11246 enforcement. As

this reorganization and related personnel retraining have

been undertaken only recently, however, it is too early to

determine whether the problems previously seen in the pro-

gram have been rectified. Past experience provides little

basis for optimism as to the practical resolution of these

deep-seated problems.

position that it may disregard this Court’s decision

in Teamsters v. United States, supra, 431 U.S. 324,

and find seniority systems violative of E.O. 11246

even if they are protected from Title VII attack.

See Appendix, infra. The agency adheres to this

position even though it has been rejected by the

courts. See United States v. East Texas Motor

Freight System, Inc., 564 F.2d 179, 184-86 (5th

Cir. 1977); and United States v. Lee Way Motor

Freight, Inc.,. —— F. Supp. ——, 15 FEP Cases

1385, 1395, 1396-1398 (W.D. Okla. 1977), appeal

pending, Nos. 78-1096, 78-1097 and 78-1098 (10th

Cir.). (Order does not authorize individual seniority

or back pay relief). As a result, employers may face

OFCCP affirmative action demands which are directly

contradictory to their bona fide contractual obliga-

tions.

Where such uncertainty exists in tandem with sanc-

tions for not complying with compliance officer de-

mands, it is not surprising that some affirmative ac-

tion efforts urged upon contractors through agency

pressure may be undertaken without reasoned as-

surance that they will withstand subsequent judicial

scrutiny. Because, however, 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 employers whose business is di-

rectly or indirectly dependent to any substantial de-

gree on government contracts.” ;

#8 In 1971, then Under Secretary of Labor Laurence H. Sil-

berman testified concerning the OFCCP’s program that “[i]n

fact we have so much clout over government contractors that

B. Prudent Employers Often Must Adopt Affirmative

Action Plans to Avoid Potential Findings of Dis-

crimination Under Federal Statutes.

This Court has stressed that the “primary” objec-

tive of Title VII is the removal of barriers to minori-

ties “that have operated in the past to favor an

identifiable group of white employees over other em-

ployees.” See Griggs v. Duke Power Company, 401

U.S. 424, 429-480 (1971) (emphasis added); .md

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417

(1975). It also is clear that voluntary compliance is

the “preferred means” of eliminating employment dis-

crimination (Alexander v. Gardner-Denver Co., 415

U.S. 36, 44 (1974)), and that employers are re-

quired to “self-examine and to self-evaluate their

employment practices [under Title VII] and to elimi-

nate, so far as possible, the last vestiges of their

discriminatory practices.” (Teamsters v. United

States, supra, 431 U.S. 364).

very few of them are willing to or want to fight that through

litigation. They usually come into compliance.” See Hearings,

supra n. 18, at 89-90. Mr. Silberman also testified that “...

our program is not enforcement minded. The idea is that we

have such tremendous sanctions that every time we go to use

it, the contractor falls into compliance...” (Jd., at 90).

One district court judge has characterized the OFCCP’s at-

tempt to pass over a contractor without a hearing as “eco-

nomic coercion.” See Pan American World Airways Vv. Mar-

shall, supra, 439 F. Supp. at 495. There, the contract, which

was worth several hundred million dollars, was “vital to [the

contractor’s] economic vitality.” (Jd.). In ruling that the

agency’s passover policies were illegal, the court also noted

that Pan American had no adequate remedy at law because

a contractor who successfully challenged its loss of a contract

award could only recover its bid preparation costs, and would

be unable to receive lost profits. 489 F. Supp. at 497.

Employers who analyze their workforce statistics

and determine that there may be potential Title VII

liability may conclude that affirmative efferts are re-

quired so that their workforces more closely mirror

the racial or sexual composition of the workforce

in the appropriate labor market. Such a reaction

would be most likely from employers who find it

would be difficult to rebut a prima facie case of dis-

crimination under standards established by this

Court,” or from those (like Kaiser) whose initial

affirmative efforts to increase utilization of minorities

have been unsuccessful.

Even when it is not certain that an employer has

discriminated, a self analysis of the surrounding

circumstances may lead it to conclude that affirmative

action efforts should be undertaken voluntarily,

through settlements or by consent decree. Several

factors are relevant such as: a desire to remedy the

effects of past discrimination, the possibility of time

consuming and costly processing of discrimination

complaints, the uncertainty of the outcome of litiga-

* See Int'l. Brovherhood of Teamsters v. United States,

supra, 431 U.S. at 340; Hazelwood School District, et al. v.

United States, supra, 483 U.S. 299; Furnco Construction

Corp. v. Waters, 46 U.S.L.W. 4966 (1978); and Board of

Trustees of Keene State College v. Sweeney, 47 U.S.L.W.

3330, 18 FEP Cases 520 (1978). Under these standards, an

employer need only articulate “some legitimate, nondiscrimi-

natory reason” for its conduct in order to rebut a Title VII

prima facie case. See Board of Trustees v. Sweeney, supra,

47 U.S.L.W. at 3331. This standard contrasts markedly with

the requirements of E.0. 11246 regulations that any under-

utilization of minorities or women must be rectified, regard-

less of whether it was caused by discrimination. See supra,

pp. 15-16.

—

tion, as well as a desire to avoid wasteful and expen-

sive litigation. The public policy of encouraging vol-

untary compliance could hardly be achieved if such

actions were permitted only when discrimination

could be established to a certainty.”

Furthermore, employers are aware that a large

majority of the United States Courts of Appeals have

considered it within their equity jurisdiction to ap-

prove the use of accelerated hiring goals or quotas

to eliminate the effects of past proven discrimination.

See Van Davis v. County of Los Angeles, 566 F.2d

1334, 1343 (9th Cir. 1977), cert. granted, No. 77-

15538, 46 U.S.L.W. 3780 (1978), decision pending,

and cases collected therein. Although these decisions

do not involve voluntary affirmative action efforts,

they provide some indication that positive efforts

may be required to overcome the effects of past em-

ployer discrimination.

From the foregoing, it is evident that federal

statutory, judicial or administrative employment

_ standards and enforcement requirements have had

an important effect on increasing employer affirma-

tive action efforts. In fact, there may be compelling

reasons for employers to increase their utilization of

minorities and women even when they do not believe

they have engaged in past discriminatory practices.

As we now show, however, their attempts to comply

with government requirements have placed employers

20 See Florida Trailer & Equipment Co. v. Deal, 284 F.2d

567, 571 (5th Cir. 1960). Cf. United States v. Allegheny Lud-

lum Industries, 517 F.2d 826, 11 FEP Cases 167, 186, 192

(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).

in the unfair position of having to face potential

liability to white, male or other persons alleging they

have been harmed by those affirmative action efforts.

II. COURT DECISIONS RAISE DOUBTS ABOUT THE

PERMISSIBLE LIMITS OF AFFIRMATIVE AC-

TION AND CREATE A DILEMMA FOR EMPLOY-

ERS THAT ONLY THIS COURT CAN RESOLVE.

A. Conflicting Lower Court Decisions Provide No Clear

Guidance to Employers Seeking to Comply Volun-

tarily With Title VII and E.O. 11246.

The majority and dissenting opinions of the court

below have increased the uncertainty over whether

affirmative action programs adopted to remedy under-

utilization of minorities in an employer’s workforce

are permissible under Title VII and E.O. 11246 in

the absence of findings that an employer has engaged

in acts of past discrimination against the specific

identified individuals who are beneficiaries of the

program. The decision below requires employers to

establish findings that they have engaged in dis-

criminatory practices and then limit preferential

treatment to identifiable victims of their discrimina-

tion.” In other contexts, however, other courts of

appeals have suggested that preferential affirmative

class relief is not necessarily limited to identifiable

21 See also Detroit Police Officers Ass’n v. Young, 446 F.

Supp. 979 (E.D. Mich. 1978), appeal pending, No. 78-1163

(6th Cir.) ; Hiatt v. City of Berkeley, 18 FEP Cases 233 (Cal.

Ct. App. 1978) ; and Hull, et al. v. Cason, et al., 1 Civ. Nos.

38801, 400384, 41036 (Cal. Ct. App., December 28, 1978). Cf.

Sledge v. J. P. Stevens & Co., 585 F.2d 625, 18 FEP Cases

261, 275 (4th Cir. 1978) (“Our reading of the several opin-

ions in [the Bakke case] indicates that the imposition of hir-

ing quotas in Title VII cases is still an open question .. .”’).

victims. See e.g., Carter v. Gallagher, 452 F.2d 315,

328-330 (8th Cir. 1971) (en bance), cert. denied, 406

U.S. 950 (1972); EEOC v. American Telephone &

Telegraph Co., supra, 556 F.2d 167, 175-176; Van

Davis v. County of Los Angeles, supra, 566 F.2d

1334, 1843; and IBEW Local 35 v. City of Hartford,

et al., —— F.Supp. -—, 18 FEP Cases 1338 (D.

Conn. 1978) .”

Additionally, the Fifth Circuit held below that the

underutilization of minorities in craft positions was

not a legally sufficient reason to permit the racial

preference. (Pet. App. 16a-17a). Kaiser argued that

its craft admission plan was justified by the dispro-

portionately small share of its workforce held by

minorities and its knowledge that its requirement for

prior experience for craft applicants had a “dis-

parate impact” on blacks because of their former

exclusion from craft unions. (Kaiser Cert. Pet. at

4-5). The Fifth Circuit, however, found that under

the circumstances of this case, the remedial plan

“could not be approved even if it had been judicially

imposed.” (Pet. App. 14a).”*

22 Similarly, the Bakke opinions of Justices Brennan and

Powell disagreed over whether the Constitution permits a

state institution to afford minority group members preferen-

tial treatment to remedy past societal discrimination when

there has been no showing that the institution itself engaged

in discriminatory practices.

23 See also Lewis v. Tobacco Workers, 577 F.2d 1135, 17

FEP Cases 622, 627 (4th Cir. 1978), cert. denied, No. 78-696,

47 U.S.L.W. 3449. (“... § 703(j) [of Title VII] forbids court

ordered preferential treatment designed solely to achieve

a racial balance, as well as the formulation of liability based

merely on the lack of racial balance.”). Cf., Furneo Construc-

tion Corp. Vv. Waters, supra, 46 U.S.L.W. at 4970.

By contrast, in Prate v. Freedman, 583 F.2d 42,

46-47 (2d Cir. 1978), the Second Circuit approved

a consent judgment establishing a plan for preferen-

tial hiring of minority groups. Although there were

no findings or admissions of past employer discrim-

ination, the court stated that a decree “designed to

remedy the disproportionate impact of prior employ-

ment practices amounted to an admission of unlaw-

ful discrimination.” 17 FEP Cases at 1575-76. In-

deed, in rejecting challenges to the decree by white

police applicants, the court awarded attorneys fees

to the parties defending the hiring preference, and

characterized the plaintiffs’ suit as “unreasonable and

vexatious.”

Recognizing the split in court authority, Judge

Wisdom pointed out in his dissenting opinion below

that (Pet. App. 26a-27a) :

The employer and the union are made to walk

a high tightrope without a net beneath them. On

one side lies the possibility of liability to mi-

norities in private actions, federal pattern and

practice suits, and sanctions under Executive

Order 11246. On the other side is the threat of

private suits by white employees and, poten-

tially, federal actions. If the privately imposed

remedy is either excessive or inadequate, the

defendants are liable. Their good faith in at-

tempting to comply with the law will not save

them from liability, including liability for back

pay. See Albermarle Paper Co. v. Moody, 1975,

422 U.S. 405, 422-23, 95 S. Ct. 2362, 45 L. Ed.

280.™

24 As discussed below, however, there are several considera-

tions that would make back pay to reverse discriminatees an

inappropriate remedy. See infra, pp. 38-41.

It also was noted that “[d]ifferent courts may apply

the law in arguably proper distinct ways,” and that

determining the result a court would reach in any

Title VII litigation is “no small problem” (Pet. App.

26a). Because of the potential for varying circuit

court interpretations of the validity of affirmative

action programs, voluntary compliance with Title

VII, especially by way of nationwide collective bar-

gaining, is rendered particularly difficult. (Pet. App.

26a).

Given these conflicting judicial interpretations of

Title VII, employers and unions attempting to comply

voluntarily with Title VII take the chance of being

liable “unless they instituted exactly what a review-

ing court felt should have been instituted.” (Pet.

App. 27a). Their alternatives, therefore, would be

to “either bring declaratory judgment actions, or

wait to be sued.” (Jbid.) Without guidance from this

Court, however, such additional litigation not only

would be burdensome, but unlikely to provide suffi-

cient clarification for employers whose operations are

not located solely within one judicial circuit.

B. Guidance From the Federa) Enforcement Authori-

ties is Insufficient to Clarify the Issues.

In an attempt to resolve the employers’ dilemma

and to spur employers to undertake more aggressive

voluntary affirmative action, EEOC has issued its

final Affirmative Action Guidelines.” Under the

Guidelines, EEOC would make a determination of

“no reasonable cause” concerning “reverse discrim-

ination” charges filed with it if an employer could

25 44 F.R, 4422, January 19, 1979.

demonstrate that its self analysis provided a reason-

able basis to conclude that affirmative action is “ap-

propriate” and the action taken has a reasonable re-

lationship to the problems revealed by the self analy-

sis. Affirmative action efforts taken in accordance

with E.O. 11246 also will qualify under the Guide-

lines. 44 F.R. 4423-24, 4428.%° Further, the Guide-

lines state that:

It is not necessary that the self analysis estab-

lish a violation of Title VII. This reasonable

basis exists without any admission or formal

finding that the person has violated Title VII,

and without regard to whether there exist argu-

able defenses to a Title VII action. [Guidelines,

Section 1608.4(b) ].

They also provide:

[The AAP may be adopted] regardless of wheth-

er the persons benefitted were themselves the

2¢ It should be noted that in a recent advisory opinion, a

Department of Labor Administrative Law Judge concluded

that in light of the Bakke decision of this Court and the Fifth

Circuit’s decision below in Kaiser v. Weber, there is a substan-

tial question of law as to whether the imposition of goals and

timetables under E.O. 11246, absent a finding of discrimina-

tion, conflicts with the Constitution and Title VII. See Ad-

visory Opinion of Administrative Law Judge Burton Stern-

burg In the Matter of Firestone Synthetic Rubber & Latex

Co., Orange, Texas, Case No. 78-OFCC-13, December 8, 1978,

Daily Labor Report No. 248, December 18, 1978, at F-1. In

his decision, the judge noted that the government’s petition

for certiorari in the instant case indicated that the establish-

ment of quotas and/or preferences absent a finding of dis-

crimination may be illegal. A further discussion of the

government’s petition is set forth below at pp. 31-33. Cf.,

Silberman, supra, n. 10.

a AE RE

victims of prior policies or procedures which

produced the adverse impact or disparate treat-

ment or which perpetuated past discrimination.

so added). [Guidelines, Section 1608.4

c)].

EEOC would permit interim goals which are higher

than the workforce availability of protected groups,

as long as those selected are “qualified or qualifiable

applicants.” (Emphasis added). 44 F.R. at 4425.

EEOC acknowledges that its Guidelines directly

conflict with the majority decision below (44 F.R. at

4425 n.1). The Guidelines, however, only provide

assurance against reverse discrimination suits brought

by EEOC. Upon receipt of a “no reasonable cause”

determination from EEOC, the alleged reverse

discriminatee could obtain a right to sue notice from

the agency and bring a private lawsuit.” In that

proceeding, the Guidelines will not have the force and

effect of law, nor will they be controlling upon the

court,” especially in view of the Commission’s past

limited interpretations of Section 713(b) of Title VII.

That provision—the primary legal authority for the

Guidelines—provides a defense to Title VII liability

to a respondent who acts in good faith reliance on any

written interpretation of the Commission. In our

view, the protections of Section 713(b) should be

27 See Section 706(f) (1) of Title VII; and Occidental Life

Insurance Company ef California v. EEOC, 432 U.S. 355, 360-

361 (1977).

28 General Electric v. Gilbert, 429 U.S. 125 (1976); Trans

World Airlines v. Hardison, 482 U.S. 63 (1977) ; and City of

Los Angeles v. Munhart, 46 U.S.L.W. 4347, 4352 n. 36 (1978)

(“[the District Court] should not have given conclusive

weight to the EEOC Guideline.” )

construed liberally.” But past EEOC interpretations

have stated that opinion letters must set forth the

stated factual assumptions of the individual case, and

may be relied upon only by the specific addressees.”

By contrast, the Guidelines purport to sanction vir-

tually all forms of affirmative action, even though

specific programs need not be reviewed or approved

by EEOC until after the plans are put into effect and

a reverse discrimination charge is filed.

Another point overlooked by EEOC is that Sec-

tion 713(b)’s protections apply only to Title VII.

There is no assurance, therefore, that the Guidelines

would protect employers against reverse discrimina-

tion suits brought under 42 U.S.C. § 1981 or other

sections of the Civil Rights Act of 1866 (see e¢.g.,

McDonald v. Santa Fe Trail Transp. Co., supra, 427

U.S. 273)), or under state antidiscrimination stat-

utes (see e.g., Hiatt v. City of Berkeley, supra, 18

FEP Cases 233).

29 See e.g., Yott v. North American Rockwell Corp., 428

F. Supp. 763, 768 (C.D. Cal. 1977) (“. . . the EEOC cannot

by regulations or otherwise put a limitation on who can claim

[Section 713(b)’s] benefits.”) See also footnote 36, infra,

concerning consent decrees and Section 713(b).

% See 29 C.F.R. $§ 1601.31, 1601.32 and 1601.33; EEOC

Policy Statement, 35 F.R. 18692, December 9, 1970; EEOC

Decision No. 75-147, January 18, 1975, 2 CCH Employment

Practice Guide {| 6447; and EEOC Decision 74-76, January

18, 1974, CCH Employment Practice Guide § 6446. Cf. Local

189, United Papermakers v. U.S., 416 F.2d 980, 987 (5th Cir.

1969), cert. denied, 397 U.S. 919; Sprogis v. United Air Lines,

444 F.2d 1194 (7th Cir. 1971), cert. denied, 404 U.S. 991; and

Robinson vy. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971),

cert. dismissed, 404 U.S. 1006. On January 19, 1979, EEOC

redefined “written interpretation or opinion of the Commis-

sion” to include a no reasonable cause determination issued

pursuant to the Guidelines. See 44 F.R. 4429-30.

In addition, inasmuch as the Guidelines would per-

mit individual employer affirmative action even when

there is no evidence sufficient to prove the employer

_ violated Title VII, and before there is a related find-

ing of discrimination “by judicial, legislative, or ad-

ministrative bodies with competence to act in this

area,” there also are questions raised as to whether

the Guidelines comply with the standards of the

Bakke decision.” Thus, the Guidelines are inadequate

to provide assurance against employer reverse dis-

crimination liability in a private Title VII suit.

Even more confusion is added when the govern-

ment’s petition for certiorari is compared with the

Guidelines. In the Guidelines, EEOC and the So-

licitor General stete that the decision below is “in-

correct” and that “the affirmative action program

there was lawful.” 44 F.R. at 4425 n.1. Moreover,

EEOC’s Guidelines assume that preferential treat-

ment may be given to “qualifiable” persons who are

not identified as victims of discrimination, and where

past discrimination by the employer has not been

shown. In their petition, however, the agencies set

forth a different legal standard (Cert. Pet. at 11):

In our view, Title VII permits affirmative re-

medial action by an employer and a union who

have a reasonable factual basis for concluding

31 See The Regents of the University of California v. Bakke,

supra, 98 S. Ct. 2757-2758, 2766 (Opinions of Justices Powell

and Brennan).

In the Supplementary Information accompanying the

Guidelines, EEOC concludes without analysis that the Guide-

lines are consistent with the Bakke decision. But its rationale

states only that in Bakke, the University did not assert re-

liance “on any detailed guidance and procedures for crafting

an affirmative action plan.” 44 F.R. at 4425.

that a plaintiff could establish a prima facie

case of employment discrimination with respect

to the plant and jobs in question. Where there

is no reasonable ground for concluding that the

employer may have discriminated in the past,

a race-conscious program may, as the court of

appeals stated, “lose its character as an equitable

remedy and * * * be banned as an unlawful

racial preference prohibited by Title VII” (App.

A, infra, p. 18a). (Emphasis in original).

And whereas the Guidelines state that “[i]t is not

necessary that the self analysis establish a viola-

tion of Title VII,” and need only show that affirma-

tive action is “appropriate” (see supra, p. 28), the

government’s petition asks this Court to remand the

case to the district court for another hearing to de-

termine whether there is any evidence, not now in the

record, of discrimination by either of the party de-

fendants (U.S. Cert. Pet. at 11, 15-17, 19-20). By

obvious implication, the government’s request means—

in contradiction to the Guidelines—that clear evidence

of discrimination and not just underutilization of

minorities, may be necessary to support a voluntary

affirmative action program. And although the gov-

ernment’s petition states that discrimination need

not always be established in court to support volun-

tary affirmative action (Cert. Pet. at 11), the evi-

dence it asserts would be required on remand (Cert.

Pet. at 19) seems to establish a more demanding

standard than that required by the Guidelines.

Adding another bit of inconsistency, EEOC’s ex-

planation of the Guidelines criticizes the decision be-

low, finding it “fundamentally unfair to expose those

subject to Executive Order No. 11246 to risks of lia-

bility under Title VII when they act in compliance

with government requirements. ...” (44 F.R. at 4425).

The government’s petition, on the other hand, urges

that this case should be remanded, arguing that it is

not clear from the present record whether the action

taken by Kaiser and Steelworkers was consistent with

E.O. 11246 (Cert. Pet. at 16-17).

When the primary government agencies charged

with enforcing the federal civil rights statutes are

unable to agree upon the appropriate legal standards

governing affirmative action, it hardly seems reason-

able to expect that courts would defer to Guidelines

that do not represent a uniform view. It then follows

that employers could not rely upon the government’s

Guidelines with any degree of confidence.

Ill. THE COURT SHOULD FORMULATE PRINCIPLES

THAT PROVIDE GUIDANCE FOR EMPLOYERS

WHO MUST RECONCILE AFFIRMATIVE ACTION

REQUIREMENTS WITH POTENTIAL REVERSE

DISCRIMINATION LIABILITY.

A. The Liability Standards Which Should Govern

Voluntary Affirmative Action.

The dilemma described above can only be resolved

by this Court. Until guidance is given, employers will

face the prospect of lawsuits from competing inter-

ests. On the one hand are investigations and suits

from state or federal EEO agencies, minorities or

women for failure to establish resulted-oriented af-

firmative action programs; on the other are suits

filed by persons alleging they have been harmed by

the affirmative action plans. The same problem con-

fronts -federal contractors who face sanctions for not

complying with OFCCP demands but have no clear

immunity from claims of reverse discrimination. In

our view, it does not follow inexorably that an affirma-

tive action plan found to discriminate against non-

minorities should result in liability being assessed

against an employer. The resolution of this dilemma

is basically a question of equity, and

“In equity as nowhere else, courts eschew rigid

absclutes and look to the practical realities and

necessities inescapably involved in reconciling

competing interests .. .” Lemon v. Kurtzman,

411 U.S. 192, 201 (1973) (Burger, C.J.)*

One way to resolve the dilemma, of course, would

be for the Court to reverse the Fifth Circuit below

and hold that the voluntary affirmative action pro-

gram of Kaiser and the Steelworkers did not violate

Title VII. Arguments for or against that position

are not advanced here but will be presented fully by

the parties and other amici.“

88 Accord: Franks v. Bowman Transp. Co., 424 U.S. 747,

777-778 n. 38, 789-780 (1976) (Opinions of Justices Brennan

and Powell).

’4In this regard, EEAC submits that the issues presented

in this case involve the permissible limits of voluntary affirma-

tive action. That issue, however, is distinguishable from the

separate question of whether employers may be compelled by

the government to undertake preferential numerically based

relief to remedy societal discrimination. Our reading of this

Court’s decisions indicates that where past discrimination by

a specific employer has not been shown to have been a factor

contributing to a racial imbalance between an employer’s

workforce and the workforce in the appropriate labor market,

preferential hiring of minorities to cure the imbalance cannot

be required. As stated in Furnco Construction Corp. v. Waters,

46 U.S.L.W. at 4970, the obligation imposed upon employers is

to provide “‘an equal opportunity for each applicant regardless

of race, without regard to whether members of the applicant’s

race are already proportionately represented in the work-

On the other hand, should the decision below be

affirmed, limits should be placed on reverse discrimi-

nation liability. Because employers are faced with

unprecedented confusion over the applicable legal

standards, we submit that this Court should not

“charg[e]” potential reverse discrimination defend-

ants “with predicting the future course of [the]

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

force.” See also Griggs v. Duke Power Co., supra, 401 U.S.

at 430 (“In short, the Act does not command that any person

be hired simply because he was formerly the subject of dis-

crimination, or because he is a member of a minority group.)

(Emphasis added).

Indeed, even the Bakke opinion of Mr. Justice Brennan,

which was strongly supportive of voluntary affirmative action,

stated that “... Title VII clearly does not require employers

to take action to remedy the disadvantages imposed upon

racial minorities by hands other than their own .. .” 98 Sup.

Ct. at 2775 (emphasis added). Justice Brennan noted, how-

ever, that such an objective was consistent with the remedial

goals of the statute. Along similar lines, Judge Wisdom stated

in his dissent below that “[wJhile the government might not

be able to require that restorative justice be done, neitl ~

should it prevent it.” (Pet. App. at 38a) (emphasis added.)

Finally, this Court’s school desegregation decisions also

support this distinction. See e.g., Swann, et al. v. Charlotte-

Mecklenburg Board of Education, et al., 402 U.S. 1, 16 (1971)

(“To [prescribe a ratio of Negro to white students reflecting

the proportion for the district as a whole] as an educational

policy is within the broad discretionary powers of school au-

thorities; absent a finding of a constitutional violation, how-

ever, that would not be within the authortiy of a federal

court.”) (Emphasis added). Accord, Milliken v. Bradley, 418

U.S. 717, 744 (1974); and Dayton Board of Education v.

Brinkman, 483 U.S. 406, 417 (1977).

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

in several Title VII cases as authority for denying back pay

Fundamental principles of fairness indicate that

until the permissible limits of voluntary affirmative

action are established, the entity which enacts an

affirmative action plan should not be held liable to

an employee who alleges the plan is discriminatory

as to him or her, if the plan was adopted:

a. in a good faith attempt to comply with the

requirements of federal statutes and based

upon a reasonable conclusion that it might

be subject to liability thereunder; or

b. in a good faith attempt to comply with the

requirements of E.O0. 11246, or its support-

ing regulations; and

ce. its actions in implementing the plan were

reasonably related to these good faith objec-

tives.

Application of these standards should not require

that an employer admit a Title VII violation, or

await a judicial determination of liability. Requir-

ing admissions of discrimination would invite suits

from minorities or women and discourage voluntary

compliance. Requiring an official finding of discrimi-

claims when employers had acted in good faith attempts to

comply with existing statutory requirement. See, e.g., Rid-

inger V. General Motors, 325 F. Supp. 1089, 1098 (S.D. Ohio

1971), aff'd in rel. part after remand, 7 EPD {9395 (S.D.

Ohio 1973); LeBlanc v. Southern Bell Telephone and Tele-

graph Co., 333 F. Supp. 602, 611, (E.D. La. 1971, aff’d, 460

F.2d 1228 (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 Butcher-

man Local 17, 484 F.2d 403 (6th Cir. 1973) ; Richards v. Grif-

fith Rubber Mills, 300 F. Supp. 338, 341, 2 EPD {10,001

(D. Ore. 1969). See also Hupart v. Board of Higher Educa-

tion, 420 F. Supp. 1087 (S.D.N.Y. 1976). Cf. Wood v. Strick-

land, 420 U.S. 308, 319-22 (1975).

nation would strain the resources of our legal system

and impede employers from increasing their utiliza-

tion of minorities or women until actually charged

and found guilty of discriminating against them.

These standards for relief from liability should be

applied to affirmative action efforts undertaken vol-

untarily, in a collective bargaining agreement, con-

ciliation agreement, settlement agreement, consent

decree,” or otherwise. Moreover, an alleged reverse

discriminatee should not be able to premise liability

upon a consent decree whose provisions would have

been sustainable when enacted. As noted above, p. 18

and n. 16, civil rights principles are changing rapidly,

and it would be unfair to base subsequent reverse

discrimination liability upon later legal developments

which might have lessened the possibility of liability

to minorities or women had those principles been in

8° As this Court stated in Albemarle Paper Co. v. Moody,

supra, 422 U.S. at 423 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 interpretation or opinion of

the [EEOC].’ [Section 713(b)] 42 U.S.C. § 2000e-12(b).”

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

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, (E.D. Pa. 1976),

aff'd EEOC v. American Telephone & Telegraph Co., supra,

556 F.2d 167.

We note also that in his Bakke opinion, Mr. Justice Powell

stated that “[t]his case does not call into question congres-

sionally authorized administrative actions such as consent

decrees under Title VII...” See 98 Sup. Ct. at 2755 n. 41.

Section 713(b) is discussed also supra, at pp. 29-30.

effect when the decree was approved. See e.g., United

Airlines, Inc. v. Evans, 431 U.S. 553 (1977).

B. If Reverse Discrimination Claims Are Permitted,

Remedies Should Be Prospective Only.

Our position that equitable principles should be

applied to limit employer reverse discrimination lia-

bility is supported by analogous decisions of this and

other Courts holding that back pay awards are not

appropriate under certain circumstances. These deci-

sions, discussed below, also support a conclusion that

even if reverse discrimination claims are upheld,

remedies available to a “reverse discriminatee” should

be prospective only and limited to injunctions against

further implementation of the affirmative action pro-

gram. We submit, therefore, that if this court affirms

the decision below, it should indicate that back pay

or other monetary relief to reverse discriminatees

would unfairly penalize employers who have at-

tempted in good faith to comply with government

*7 It is a well understood principle that voluntary action,

settlements and consent decrees are entered into with an

awareness on all sides that a degree of uncertainty is to be

expected and that a settlement should not be judged on

whether its terms are the equivalent of what could have been

obtained after a full trial. See United States v. Armour Co.,

402 U.S. 678, 681-682 (1971) ; Florida Trailer and Equipment

Co. Vv. Deal, 284 F.2d 567, 571 (5th Cir. 1960) ; and Cotton v.

Hinton, 559 F.2d 1326, 15 FEP Cases 1342, 1344 (5th Cir.

1977). Moreover, certain courts have rejected attacks on Title

VII consent decrees based on later substantive Supreme Court

holdings. Stewards v. American Airlines, —— F.2d —~—, 17

FEP Cases 24, 27 (7th Cir. 1978) ; and EEOC v. Bethlehem

Steel Corp., —— F. Supp. ——, 16 EPD (CCH) 98245

(W.D.N.Y. 1978), pp. 5268-69.

requirements for the increased utilization of minori-

ties or women.”

The decision in Albemarle Paper Co. v. Moody,

supra, 422 U.S. at 421, held that back pay may be

denied when its award would frustrate the central

statutory purpose of eradicating discrimination

throughout the economy and making persons whole

for injuries suffered through past discrimination.

Recently, those principles were applied by this Court

when it denied retroactive monetary relief to known

discriminatees. See City of Los Angeles v. Manhart,

supra, 46 U.S.L.W. at 4851-4354 and n. 38. Several

factors were stressed. First, the defendants did not

have the benefit of a clear definition of the law and

may have assumed that their program was lawful.

Further, the employer was “in a dilemma: he [was]

damned in the discrimination context no matter what

he [did].” (Jd., 46 U.S.L.W. at 4352, n. 38). More-

over, had the employers changed the practices ulti-

mately found illegal, a profound effect on the econ-

omy would have resulted.” Finally, the decision noted

the unfair possibility that staggering damage awards

would work a hardship on an employer who had

88 Monetary awards are not involved in the instant case.

Judge Wisdom, however, noted that damage claims are likely.

(Pet. App. 26a-27a). Other cases also indicate such claims are

a foreseeable possibility. See McAleer v. American Telephone

& Telegraph Co., 416 F. Supp. 435 (D.D.C. 1976), opinion

withdrawn, 13 EPD § 11,624; and Hupart v. Board of Higher

Education, supra, 420 F. Supp. at 1108.

39 In the instant case above, the Steelworkers state that the

program at issue has been negotiated into contracts affecting

nearly one million employees in a major industry. (Steelwork-

ers Cert. Pet. at 10).

acted in “good faith.” (Jd., at n. 44). For the rea-

sons stated throughout this brief, these conclusions

also apply to employer potential reverse discrimina-

tion monetary liability.”

Numerous lower court decisions also support this

conclusion. The Fifth Circuit has suggested that

where discrimination is “government imposed” by the

OFCCP, a back pay order would work a “substantial

injustice” and should be carefully scrutinized by the

district court. See Stevenson v. International Paper

Co., 516 F.2d 103, 113-114 (5th Cir. 1975).

Similarly, virtually all courts considering the is-

sue have found back pay to be an inappropriate rem-

edy where employers’ good faith reliance upon a state

protective statute ultimately was found to constitute

unlawful Title VII discrimination.“ These cases re-

veal several factors analogous to the affirmative ac-

tion context. They consistently emphasize the “di-

* Accord: Mirengoff, “Weber v. Kaiser, Impact and Alter-

natives” Equal Employment Practice Guide, Federal Bar As-

sociation, October, 1978, 220, 226.

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

240 (3d Cir. 1973) ; Manning v. International Union, 466 F.2d

812 (6th Cir. 1972), cert. denied, 410 U.S. 946 (1973); Wil-

liams v. General Foods Corp., 492 F.2d 399 (7th Cir. 1974) ;

LeBlanc v. Southern Bell Telephone & Telegraph Co., 333

F. Supp. 692 (E.D. La. 1971), aff’d, 460 F.2d 1228 (5th Cir.

1972), cert. denied, 409 U.S. 990; Tuma v. American Can Co.,

373 F. Supp. 219 (D.N.J. 1974). Accord, Stryker v. Register

Publishing Co., 423 F. Supp. 476 (D. Conn. 1976), and cases

cited therein at n. 2. See also fn. 35, supra.

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.

lemma”* facing employers who did not have the

benefit of a definitive judicial or even quasi-judicial

determination as to the validity of their course of

action.“ They also point out that “[p]rior to a judi-

cial determination, such as evidenced in this opinion

an employer can hardly be faulted for following the

explicit provisions of applicable state law.” (Em-

phasis added). The equitable relief from monetary

damage liability requested here is prospective in ap-

plication,“ would be limited in nature,” and need not

be extended to affirmative action plans adopted after

this Court ultimately determines the extent to which

race- or sex-conscious employment decisions are statu-

torily, constitutionally or otherwise permissible.

CONCLUSION

In recognition of the facts and arguments pre-

sented above, it is respectfully submitted that the

administration of the federal antidiscrimination stat-

utes and executive programs would benefit greatly if

this Court were to adopt the standards suggested by

#2 See, e.g., Kober v. Westinghouse, 480 F.2d at 249; and

Manning V. International Union, 466 F.2d at 816.

+8 Kober v. Westinghouse, 480 F.2d at 249; and Tuma v.

American Can Co., 373 F. Supp. at 231.

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

(9th Cir. 1971) ; Williams v. General Foods Corp., 492 F.2d

at 408.

45 Burns Vv. Rohr Corp., 346 F. Supp. 994, 999 (S.D. Cal.

1972).

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

1007 (9th Cir. 1972).

the Amicus. Such guidance from this Court would do

much to eliminate the present confusion surrounding

employers’ obligations to undertake affirmative action

to remedy instances of underutilization of minorities

and women.

Respectfully submitted,

KENNETH C. MCGUINFSS

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

McGUINESS & WILLIAMS

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 296-0333

January, 1979

APPENDIX

July 20, 1977, policy clarification memorandum of

Weldon Rougeau, the Director of the Office of Fed-

eral Contract Compliance Programs (OFCCP) of

the United States Department of Labor, reported at

Daily Labor Report No. 146, July 28, 1977, pp. A-10

through A-11 (BNA):

We have analyzed the Supreme Court’s opinion

in Teamsters v. United States and have concluded

that the opinion is not applicable to Executive

Order 11246, as amended.

The Executive Order program long has held that

seniority systems which perpetuate the effects of

past discrimination with respect to minority and

female employees who had been hired and as-

signed to lower paying and less desirable jobs

were a violation of the Executive Order. The

Supreme Court’s opinion states that such prac-

tices do not violate Title VII if they are pur-

suant to a bona fide seniority system. The

linchpin of the Court’s reasoning and holding is

§ 703(h)* of Title VII. The opinion expressly

states, for example, that “were it not for § 703

(h), the seniority system in this case would seem

to fall under the Griggs rationale.”

As you are aware, the Executive Order does not

contain an exemption comparable to § 703(h),

and our review of the Teamsters case is that it

* [I]t shall not be an unlawful employment practice for an

employer to apply different standards of compensation, or

different terms, conditions, privileges of employment pursuant

to a bona fide seniority * * * system, * * * provided that such

differences are not the result of an intention to discriminate

because of race * * * or national origin * * *.

is a narrow decision based on the exe.aption.

Accordingly, compliance officers conducting com-

pliance reviews pursuant to the Executive Order

shall continue to require adjustments in job or

department seniority systems if they perpetuate

the effects of past discrimination.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.