# Amicus Brief — Steelworkers v. Weber > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1705%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1979 - **Citation:** 443 U.S. 193 ## Text 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 _...... 15 15 15 21 27 ii 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 - iv 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 v 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 vi 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 ix 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, V. 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 2 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- 3 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). 4 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). 5 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). 6 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- 7 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. 8 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 9 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. \ 10 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 11 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. 12 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 13 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- 14 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. 15 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. 16 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). 17 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 18 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.” => 19 [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. 20 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 21 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. 22 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. — 23 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). 24 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 .. .”’). 25 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. 26 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. 27 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. 28 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 29 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.” ) 30 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. 31 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. 32 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 33 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 34 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- 35 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 36 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). 87 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. 38 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. 39 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). 40 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. 41 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). 42 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 la 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 * * *. 2a 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. oe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1705%3A17. Public record. Not legal advice.