Amicus Brief — Steelworkers v. Weber

| Supreme Court, U.

FILED

JAN 26 1979

In THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

_ Nos. 78-436, 78-435, 78-432

Untrep States of AMERICA

and Equa, EmpLtoyMENT Opportunity CoMMISSION,

Kaiser ALUMINUM & CHEMICAL CORPORATION,

& Untrep Sree~ Workers or AMERICA,

Petitioners,

V.

Brian F. WEsBEr,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE

AS AMICUS CURIAE

NatHAnrEL R. JonEs

General Counsel

Wuuum D. WELLs

MicHareL W. WarkiNn

Assistant Counsel

National Association for the

Advancement of Colored People

1790 Broadway—10th FI.

New York, New York 10019

TABLE OF CONTENTS

PAGE

OE GE TS IID wsicneiticisinctnnisiccinicieentiite 1

Cement of Ghee FORTIS cncicctnitactintinicaan 2

Introduction and Summary of the Argument ................ 3

ARGUMENT:

Kaiser’s Craft Training Selection Criteria, Pro-

viding a Limited Racial Preference, Were Estab-

lished in Compliance With Title VII of the Civil

Rights Act of 1964 and Executive Order 11246

and Constitute a Defense to Respondent Weber’s

EE “AN COIN ichoedactiecmcesceiphencieak eames 4

A. Respondent Established a Prima Facie Viola-

0 OE Tae CAE Sctsti eee 4

B. Racial Preferences, Used in the Manner and

for the Purpose of Those Challenged by Re-

spondent Weber, Have Been Approved by

Congress Under Title VII and Constitute an

Affirmative Defense Under the Statute .......... 6

EET TEA IESE EOD GE Der 20

Taste or AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 11

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 14

Associated General Contractors of Massachusetts v.

Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied,

ge Fc. | | ee enEMOnnrrs mm AEN! Aa 16

A

PAGE

Burrell v. Kaiser Aluminum & Chemical Corp., CA No.

67-86 (M.D. La., decree filed February 24, 1975)...... 9

City of Los Angeles, Dept. of Water and Power v.

Manhart, 55 L.Ed.2d 657 (1978) 6,11

Contractors Association of Eastern Pennsylvania v.

Secretary of Labor, 442 F.2d 159 (3rd Cir. 1971),

cert, denied, 404 U.S. 854 (1971) 15,17

Dothard v. Rawlinson, 433 U.S. 321 (1977) 11

EEOC vy. A.T. @ T., 556 F.2d 167 (3rd Cir. 1977),

cert, denied, 98 S.Ct. 3145 (1978) oie |

Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th

Cir. 1967), cert. denied, 389 U.S. 977 (1967) .............. 15

Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd

Cir. 1964) 15

Franks v. Bowman Transportation Co., 423 U.S. 824

(1976) ae > |

Griggs v. Duke Power Co., 401 US. 424 (1971) ............ 11

Hazelwood School District v. U.S., 433 U.S. 299 (1977) 18n

Joyce v. McCrane, 320 F. Supp. 1284 (D.C. N.J. 1970) 15

McDonald v. Santa Fe Trail Transportation Co., 427

U.S. 273 (1976) ...... 5

Northeast Construction Co. v. Romney, 485 F.2d 752

(D.C. Cir. 1973) 16

Parson v. Kaiser Aluminum ¢ Chemical Corp., 575

F.2d 1374 (5th Cir. 1978), rehearing denied per

curiam, 583 F.2d 132 (1978) 22.2... necccccececcesceceeeee 9,18n

PAGE

Rossetti Contracting Co. v. Brennan, 508 F.2d 1039 (7th

Cir. 1975) 16

Southern Illinois Builders Association v. Ogilvie, 327

F. Supp. 1154 (S.D. Ill. 1971), affirmed, 471 F.2d 680

(7th Cir. 1972) 15

Teamsters v. United States, 431 U.S. 324 (1977) ....6,11, 18n

TWA v. Hardison, 423 U.S. 63 (1977) lin

United Airlines, Inc. v. Evans, 431 U.S, 553 (1977)........ 11

Unwersity of California Regents v. Bakke, —— US.

——, 57 L.Ed. 2d 750 (1978) 19

Other Authorities:

Title VII of the Civil Rights Act of 1964—

42 U.S.C. § 2000e et seq. 3, 5, 9n, 14, 17

Executive Order 8802, 6 Fed. Reg. 3109 (1941) ............ 12

Executive Order 9346, 8 Fed. Reg. 7183 (1943) ............ 12n

Executive Order 10308, 16 Fed. Reg. 12303 (1951) ...... 12n

Executive Order 10479, 18 Fed. Reg. 4899 (1953)........ 12n

Executive Order 10925, 26 Fed. Reg. 1977 (1961) ........ 13

Executive Order 10925, Sec, BOL 22... cette ceeeseeeceneeeee 13

Executive Order 10925, Sec. 307 ...22..2.....0.....-.cccceceeeeeeeeee 13

Executive Order 10925, Sec. 312(f) .2222.....2....eeneeeceoeeee 13

Executive Order 11114, 22 Fed. Reg. 6485 (1963) ........ 13n

Executive Order 11141, 29 Fed. Reg. 2477 (1964) ........ 13n

Executive Order 11478, 34 Fed. Reg. 12985 (1969) ...... 15

iv

PAGE

Executive Order 11246, 30 Fed. Reg. 12319 (1965)...... 2, 4,

6, 15

EEOC’s Affirmative Action Guidelines, 44 Fed. Reg.

4422 (1979) .... ite Pe .... 19n

Legislative History of the Equal Employment Oppor-

tunity Act of 1972, p. 916 ....... see

110 Cong. Rec. 7212-7215 (1964) ................c..c-c-scsceeeeeceeee 14

118 Cong. Rec. 3371-73, 3962, 3964 (1972) ............20........ 16

—— eee

IN THE

Supreme Court of the United States

October Term, 1978

Nos. 78-436, 78-435, 78-432

Unitep States or AMERICA

and Equa, EmpLoymMent Opportunity CoMMISSION,

Kaiser Atuminum & CHemicaL Corporation,

& Unirep Street Workers or AMERICA,

Petitioners,

Vv.

Brian F. WeEseEr,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE

AS AMICUS CURIAE

Interest of the Amicus

The National Association for the Advancement of

Colored People (NAACP) is the oldest, largest civil rights

organization in the nation, with over 500,000 members in its

1,800 branches across the country. Since the early 1940's,

when the NAACP with A. Philip Randolph threatened

a march on Washington prompting President Roosevelt

to issue the first Executive Order banning racial dis-

crimination by government contractors, to the present day,

the amicus has brought all of its resources to bear npon

eliminating racial discrimination in employment. The

2

NAACP has conferred and cooperated with the Executive

branch, proposed and supported the very legislation which

is threatened with judicial nullification by an affirmance

here, and litigated unrelentingly to enforce this country’s

equal opportunity laws. Slowly over the past decade, the

NAACP has found that employers and labor unions have

willingly begun to voluntarily abandon their discriminatory

practices. They have, on rare occasion, been persuaded

to begin taking positive steps to recruit, hire and pro-

mote minorities without resort to threats of demonstra-

tions, boycotts, litigation, and loss of federai funding.

The amicus has long considered itself in the forefront

of the private sector encouraging precisely the kind of

affirmative action undertaken by Kaiser at its Gramercy

plant.

The NAACP now finds, as a result of the decisions below,

that the consequences of a quarter-century of promoting

equal opportunity laws are being turned inward against

minorities in a wholly destructive manner. The majority

panel of the court below would find a conflict between

Executive Order 11246 and Title VII and, as a result, would

strike down compliance with the Order while discouraging

voluntary compliance with the statute. Reversal of the

courts below would operate as a positive signal to the

country that integration of the workforce is still the will

of Congress and that social damage done by an affirmance

is de minimus,

Consent of the Parties

Pursuant to Rule 42, the written consent of the Peti-

tioners accompanies the filing of this brief. Written consent

of the Respondent has been mailed to the Clerk of the

Court.

Introduction and Summary of the Argument

The argument of the amicus is based upon a presump-

tion that the Respondent, Brian F. Weber, has sufficiently

established a prima facie case of violation of Title VI

of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.,

as a plaintiff’s burden of proof is usually measured under

the statute: The burden of going forward would then

shift to Kaiser and the Steeiworkers to justify the racial

preferences embodied in their entry requirements to craft

training positions. This justification must be one which

fosters a lawful purpose, it must be necessary to achieve

its purpose, there must be no reasonable alternative avail-

able which would avoid the use of a racial preference, and

Congress must have intended that such a purpose be pro-

tected under the statute.

At the trial below, Kaiser established that its adoption

of the selection ratio, based upon race, for entry into

its craft training programs was done in order to insure

that, in time, the racial composition of its craft jobs would

approximate that of the labor market from which it hired

its employees. The company was motivated to adopt this

procedure in response to pressure from the Office of

Federal Contract Compliance to integrate its skilled jobs

as much as the well founded apprehension of Title VII liti-

gation initiated by its black employees or applicants. In

this sense, Kaiser’s affirmative action was “voluntary.”

1 Amicus is aware that other amici are arguing that Kaiser’s

attempted compliance with Executive Order 11246 results in

Weber having failed to establish even a prima facie violation of

Title VII. While generally agreeing with this proposition, the

argument of the amicus demonstrates that, even if Weber is con-

sidered to have shifted a burden of establishing an affirmative

defense upon the company at trial, the company has met its

burden of defending the use of a limited racial preference.

4

The company demonstrated at trial that it had tried a

variety of measures toward integrating its craft jobs

prior to the negotiation of the 1974 agreement with the

union, but that none of these measures had been successful.

It concluded that only a limited racial preference, coupled

with the affirmative hiring program it had begun in 1969,

would produce the desired results,

The legislative history of Title VII, its 1972 amend-

ments, the Executive Order program for government con-

tractors, and the recent blending of the statute with the

Executive program approved by Congress clearly reflect

Congressional intent that the kinds of steps taken by

Kaiser in this case are lawful under Title VII.

ARGUMENT

Kaiser’s Craft Training Selection Criteria, Providing

a Limited Racial Preference, Were Established in Com-

pliance With Title VII of the Civil Rights Act of 1964

and Executive Order 11246 and Constitute a Defense

to Respondent Weber’s Prima Facie Case.

A. Respondent Established a Prima Facie Violation

of Title VII.

Prior to 1974, Brian Weber and all but a few of his

co-workers at Kaiser’s Gramercy plant had been unable

to obtain a skilled craft job with the company. The

primary source of craft employees had been the all-white

pool of journeymen members in the local construction

industry, because virtually none of the company’s incum-

bent employees possessed the skills and experience which

the company required to perform the various jobs. Even

when the company inaugurated a training program for

incumbents in general repair and carpenter/painter trades,

5

with lowered experience requirements for entry into the

program, only a few employees could qualify for the

jobs. Tr. 57-59.

In 1974, the collective bargaining agreement and Memo-

randum of Understanding negotiated by the company and

the union created new employment opportunities for

Kaiser’s incumbent employees. For the first time, they

could enter a training program which, if successfully com-

pleted, would lead to skilled craft jobs. The training

jobs were posted for bid and employees were selected

on the basis of their seniority, with selections being made

according to a ratio of one black to one white employee.

In April 1974, training positions were posted for bid

and employees were selected according to the established

ratio. Under this procedure, some members of Weber’s

class were not selected while black employees with less

seniority were selected. In October, a single vacancy in

the insulator trainee occupation was posted and apparently,

because the last vacancy filled had gone to a white em-

ployee under the ratio formula, the job was available to

black bidders only. Weber testified that he was there-

fore barred from bidding on the vacancy. Tr. 32-34.

Title VII generally prohibits. the exclusion of any per-

son from employment opportunities on account of their

race. 42 U.S.C. §2000e-2. The rights conferred by the

statute are individual rights, and they were conferred

upon whites as well as minorities. McDonald v. Santa Fe

Trail Transportation Co., 427 U.S. 273 (1976\.? Persons

challenging practices as violative of Title VII must show

that they were treated differently on account of their race,

2 The McDonald decision did not raise the issue of whether af-

firmative action compliance may constitute a defense under Title

VII. Id. at U.S, 280 n. 8.

6

or that the practice complained of had a disparate impact

upon them, Teamsters v. United States, 431 U.S. 324, 335

n. 15 (1977), in order to establish their prima facie case.

Under either of the two theories of analysis articulated

in Teamsters, Weber may arguably have established a

prima facie violation of Title VII. He has shown that,

in general, white employees are disproportionately ex-

cluded from craft training positions. In December 1974,

whites comprised 85.2 percent of the hourly workforce,

Tr. 50, yet they were allowed to compete for only 50

percent of the available training positions. Moreover, in

October 1974, a position was posted for bidding which was

explicitly foreclosed to white employees.

Assuming a prima facie showing, Weber successfully

shifted the burden of going forward to Kaiser and the

union to prove “some . . . affirmative justification” for the

racial preference created by the craft training program

entry procedure. City of Los Angeles, Dept. of Water and

Power v. Manhart, 55 L.Ed.2d 657, 667 (1978).

B. Racial Preferences, Used in the Manner and for

the Purpose of Those Challenged by Respondent

Weber, Have Been Approved by Congress Under

Title VII and Constitute an Affirmative Defense

Under the Statute.

When Kaiser and the Steelworkers agreed to begin of-

fering training positions for craft jobs according to a

racially based ratio in 1974, the record clearly indicates

that they were responding to a perceived vulnerability

under both Executive Order 11246 and Title VII. Thus,

their action was “voluntary” only in the sense that it was

not ordered by a court.

Until 1969, Kaiser’s Gramercy plant had a minority

nopulation of approximately 10 te 11 percent. Tr. 35. Since

7

that time its accelerated hiring of minorities produced

a black hourly workforce of 14.8 percent by December

1974. Tr. 50. Yet, throughout this period the black per-

centage of the available labor market was 39 percent.

Tr. 95-96. Despite the fact that the company had, for

reasons which no party to the litigation felt compelled to

explore, a workforce composed of substantially less than

half of the minority proportion of the local labor market,

its minority population of the skilled craft workforce was

even smaller. Prior to the 1974 agreement under attack,

Kaiser employed only 5 minorities, or 2.5 percent, among

its 290 craftsmen. Tr. 98. This was so, the record dis-

closes, because it had traditionally dipped into a virtually

all-white pool to fill these positions. J. Ex. A.

In early 1971, the Office of Federal Contract Compliance

submitted its evaluation of Kaiser’s contract compliance

posture to the company.’ The OFCC identified many seri-

ous deficiencies in the plant’s compliance with applicable

regulations, and it noted specifically that none of its 246

craftsmen were black. A craft training program was sug-

gested by the agency, with a careful evaluation of the

potential in its black workforce to be conducted for such

a program. The OFCC also stated that any continued

direct hiring into craft jobs “should include at least the

minority ratio that exists in the company’s recruitment

area.”

A subsequent contract compliance review conducted by

the U.S. Atomic Energy Commission in 1973 revealed

that Kaiser had allowed several white employees who

did not possess the stated experience criteria to transfer

? The OFCC’s findings and recommendations as well as its cover

letter dated January 25, 1971, accompanying the findings have

been supplied to the Court by the Department of Justice with its

Petition for Writ of Certiorari.

8

into the skilled crafts.‘ As a consequence, Kaiser agreed

to allow black employees to transfer into these jobs who

had experiential qualifications equal to that of the least

experienced white who had been allowed to transfer. In

addition, Kaiser agreed to either validate or eliminate

the experience requirements for direct hire or transfer

into the maintenance crafts. Kaiser’s response to the

OFCC compliance reviews was to establish its training

program with the racial preference to which the Respon-

dent is objecting. The company stated at triai that it

had first lowered, then dropped altogether, any experience

requirements for entry into the training programs, Tr. 115.

At the trial, Kaiser demonstrated that there were essen-

tially three factors which led it to adopt the craft training

program in 1974. The first was pressure from its govern-

ment contracting agencies, It stated that the government’s

position on devising a mechanism for placing minorities

into craft jobs was “do it or else.” Tr. 77. Under ques-

tioning by the trial court, Kaiser explained:

“.,.a recommendation from them is pretty much telling

us that we ought to do that if they are going to ap-

prove our affirmative action plan. If they don’t ap-

prove our plan and we are held in violation of that,

then ... in the end, we either then lose as an entire

corporation, not just our Gramercy plant, but as an

entire corporation, all Government contracts, or con-

tracts with other company that does business with the

Government.” Tr. 86.

The second factor considered by Kaiser was the threat

of Title VII litigation initiated by its own black employees

* A copy of the AEC’s January 31, 1973 report has been supplied

to the Court by the Department of Justice with its Petition for

Writ of Certiorari.

9

and applicants.’ Tr. 87-88. It stated that, in addition to

the OFCC compliance reviews, the Equal Employment Op-

portunity Commission and two civil rights organizations,

including the amicus, had “been into that plant.”* Tr. 87.

At Kaiser’s Baton Rouge plant, less than 40 miles from

Gramercy, black employees had filed a Title VII suit

against the company which was ultimately resolved by a

consent decree. Burrell v. Kaiser Aluminum & Chemical

Corp., CA No. 67-86 (M.D. La., decree filed February 24,

1975). At its nearby Chalmette, Louisiana, plant, black

employees had filed EEOC charges in 1966, a Title VII

suit in 1967, and had completed an extensive trial involving,

inter alta, the filling of craft jobs, by early 1974. Parson

v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th

Cir. 1978), rehearing denied per curiam, 583 F.2d 132

(1978).

The third factor prompting the 1974 agreements with

the Steelworkers’ union was a more typical collective bar-

gaining concern. The union was anxious to keep the filling

of skilled craft jobs within its own jurisdiction by having

them filled with union incumbents rather than construction

trade journeymen hired off the street. Tr. 58, 71. At

Kaiser’s Baton Rouge plant, these same craft jobs were

not under the jurisdiction of the Steelworkers but rather

had been organized by the building trades, Tr. 118.

5 Both the 1971 and 1973 compliance reports which the Depart-

ment of Justice has lodged with the Court in connection with this

ease noted that several of Kaiser’s black employees had informed

compliance agency officials of discriminatory practices at the Gram-

erecy plant.

* Kaiser’s acknowledgement on the record that the EEOC had

been investigating its Gramercy plant indicates that EEOC charges

had been filed by black emplwyees or applicants, since the Commis-

sion only acts in response to’complaints filed pursuant to the stat-

ute. 42 U.S.C. §200e-5(b). »

10

Kaiser established on the trial record, without rebuttal

or conflicting evidence from Weber, that there were no

alternatives to the racial preference formula which it

adopted that would permit the integration of its skilled

craft jobs. It showed that the company had advertised

craft job opportunities in minority newspapers in Baton

Rouge and New Orleans and maintained racially identified

application files in order to give consideration to black

applicants when vacancies arose. Tr. 56. It had initiated

a training program for the jobs of general repairman

and carpenter-painter and had lowered the experience re-

quirement but still could not meet its manpower needs

for those positions. Tr. 57-59. The company offered un-

contradicted testimony that it knew of no other means

available to obtain trained black craftsmen.’ Tr. 60.

The question presently before the Court is therefore

whether the actions taken by the company and the union

in 1974, principally designed to comply with Government

contract obligations and to ward off the likelihood of Title

VII litigation initiated by black workers, have been sanc-

tioned by Congress under the statute.

7 Obviously, some other ratio than one black for one white could

have been selected by the company and the union, and a different

ratio would produce a faster or slower entry rate for blacks into

the training jobs. However, it is the use of any racial preference

whatsoever that the Respondent has challenged, not whether some

other ratio would be more appropriate. The record also suggests

that alternatives exist with respect to the pools of available labor.

For example, continued hiring from the available labor market

which is 39 percent minority instead of or in combination with hir-

ing from the plant workforce composed of some 15 percent minori-

ties would increase the natural flow of black trainees. But even

this kind of modification of the source of employees would require

a racial preference to accemplish the integration of craft jobs. The

company showed at trial-that the post-1969 hiring ratio for pro-

duction jobs had resulted-in a rise in the proportion of black em-

ployees at the rate of only.one percent per year, and that its turn-

over rate for craft jobs was even slower. Tr. 93.

11

In previous cases arising under Title VII, this Court

has often given effect to defenses interposed against prac-

tices which would otherwise have been violative of the

statute. Teamsters v. U.S., 431 U.S. 324 (1977) (bona

fide seniority system exception); Dothard v. Rawlinson,

433 U.S. 321 (1977) (bona fide occupational qualification

exception); United Airlines, Inc, v. Evans, 431 U.S. 553

(1977) (timeliness of EEOC charges). In addition, the

Court has frequently referred to defenses which do not

appear as an explicit statutory exception to the Act, but

which were clearly intended by Congress in the legislative

history and underlying purposes of the Act. Griggs v.

Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman

Transportation Co., 423 U.S. 824 (1976); Teamsters v.

U.S., supra (business necessity).* In Los Angeles Dept.

of Water and Power v. Manhart, 55 L.Ed.2d 657 (1978),

a case involving pension contributions explicitly based

upon sex, the Court indicated that an exemption under

the Equal Pay Act “or some other affirmative justifica-

tion,” intended by Congress in the passage of Title VII,

would constitute a defense. In deciding whether to apply

or deny a proffered defense in these cases, the Court has

always been guided by the intent of Congress as reflected

by the language of the legislation itself or by its legis-

lative history.

In this case, voluntary compliance with Executive Order

11246 has been pled as a defense. The history of the

8In Griggs and Albemarle Paper, the Court has also recognized

that employment tests. properly validated under applicable EEOC

Guidelines, will be upheld despite the existence of a racial impact.

The Court has further found that Congress intended to protect

employment terms and conditions which adversely affect adherents

to particular religions, when modification of those terms and con-

ditions to accommodate employees would place more than a mini-

an upon the employer. TWA v. Hardison, 423 U.S. 63

1977).

12

Government’s contract compliance program and the legis-

lative history of Title VII itself clearly reflect Congress’

intent that racial preferences, appropriately utilized and

conforming to contract compliance requirements, should

not be struck down under Titie VII.

By the time Title VII was being debated by the 88th

Congress, the contract compliance program growing out of

a series of Executive Orders had been a part of the Gov-

ernment’s effort to integrate the national workforce for

over 20 years. Executive Order 8802, 6 Fed. Reg. 3109

(1941), issued by President Roosevelt, was the first attempt

to utilize the Government’s contract program as a vehicle

for both eradicating racial discrimination in private em-

ployment and encouraging integration of the national work-

force. The policy of the Government articulated in that

Order was clearly to effectuate the goal of integration:

“To encourage full participation in the national de-

fense program by all citizens of the United States,

regardless of race, creed, color or national origin, in

the firm belief that the democratic way of life within

the nation can be defended successfully only with the

help and support of all groups within its borders.”

Ibid.

Subsequent to this Order, both Presidents Truman and

Eisenhower issued Executive Orders mandating nondis-

crimination by Government contractors.’ By the time Con-

9 Prior to the Truman Order, President Roosevelt issued Execu-

tive Order 9346, 8 Fed. Reg. 7183 (1943), establishing a second

Fair Employment Practives Committee to promote the fall utiliza-

tien of manpower and eliminate discrimination. President Truman

isued Executive Order 10308, 16 Fed. Reg. 12303 (1951), estab-

lishing a Committee on Government Contract Compliance whose

purpose was to evaluate the effectiveness of the contract compliance

program. President Eisenhower issued Executive Order 10479, 18

Fed. Reg. 4899 (1953), establishing the President’s Committee on

Government Contracts.

13

gress began debating passage of the 1964 Civil Rights

Act, President Kennedy had issued Executive Order 10925,

26 Fed. Reg. 1977 (1961), an Order which for the first

time required more than commitments not to discriminate

from Government contractors. Contractors were required

to commit themselves to “take affirmative action to ensure

that applicants are employed, and that employees are

treated during employment, without regard to their race,

creed, color, or national origin.” E.O. 10925, Sec. 301.

The Order provided for enforcement mechanisms including

debarrment and contract termination, but it contemplated

great reliance upon the voluntary compliance of contrac-

tors, Enforcement personnel were directed to “seek com-

pliance with the objectives of this order by conference,

conciliation, mediation, or persuasion.” Jd. at Sec. 307.

Again, before any sanction proceedings were begun, the

contracting agency was directed “to secure compliance with

the contract provisions of this order by methods of con-

ference, conciliation, mediation, and persuasion... .” Id.

at Sec, 312 (f). Thus, the Executive Orders in effect during

the period of Title VII’s debate in 1964 required affirmative

action going beyond the mere cessation of any past dis-

criminatory practices; and the enforcement of the Order

depended heavily on voluntary compliance by Government

contractors.’®

Congress’ intent to preserve the Executive Order con-

tract compliance program with its emphasis on affirmative

action and voluntary compliance is clear from the legisla-

tive history of Title VII both in its genesis and in its 1972

1°Prior to the effective date of Title VII, the Kennedy Order

was extended on two occasions. President Kennedy issued Execu-

tive Order 11114, 28 Fed. Reg. 6485 (1963), in order to include

the area of construction contracting within the ambit of the com-

plianee program. President Johnson issued Executive Order 11141,

29 Fed. Reg. 2477 (1964), to include nondiscrimination on the.

basis of age.

14

amendments. As this Court has noted, Congress rejected

an effort to have Title VII be the primary federal remedy

for employment discrimination at the time of the Act’s

inception." 110 Cong. Rec. 13650-52 (1964); Alexander v.

Gardner-Denver Co., 415 U.S. 36, 48 n. 9 (1974). In ad-

dition, Title VII as originally enacted contained two sec-

tions designed to blend, to some extent, the overlapping

obligations which the statute and the Order placed on

employers, Compliance with the record-keeping portions

of the Executive Order would exempt employers from

similar requirements of Title VII, 42 U.S.C. §2000e-8(d),

and the President was instructed to convene meetings of

the President’s Committee, the Commission on Civil Rights,

state and local FEP agencies, civil rights agencies, and

members of the business community for the purpose of in-

forming employers and unions of their obligations under

Title VII. 42 U.S.C. §20000e-15. The Clark-Case interpreta-

tive memorandum, introduced for the purpose of explaining

the House-approved bill in the Senate, stated that Title VII

“has no effect on the responsibilities of the [President’s

Committee] or on the authority possessed by the President

or Federal agencies under existing law to deal with racial

discrimination in the areas of . .. Federal contracts.” 110

Cong. Rec, 7212-7215 (1964). Thus, not only did Congress

fail to perceive any conflict between the obligations imposed

upon many employers by the Executive Order and Title

VII, but it approved the simultaneous compliance activities

of the responsible enforcing agencies and sought to inform

employers of these dual obligations. Congress clearly

11 The rejected amendment, offered by Senator Tower, did not

even seek to eliminate the activity of the President’s Committee on

Equal Employment Opportunity. It merely proposed to protect

employers subject to both Title VII and the Executive Order from

being subjected to simultaneous investigations by the EEOC and

the PCEEO, giving the EEOC primary jurisdiction.

15

sought to accommodate both the remedial nondiscrimina-

tion requirements of the statute with the affirmative action

requirements of the Executive Order program.

Between July 2, 1965, the effective date of Title VII,

and the beginning of debates on the 1972 amendments,

the Executive Order applying to contract compliance was

changed twice. Executive Order 11246 was issued on Sep-

tember 24, 1965, 30 Fed. Reg. 12319, and modified in part

by Executive Order 11478, issued August 8, 1969, 34 Fed.

Reg. 12985. Order No. 11246 required contractors to

commit themselves by the terms of their contracts both

to a policy of nondiscrimination as well as to taking

affirmative action insuring that employees and applicants

are not discriminated against. Pursuant to this Order,

the Department of Labor promulgated a series of regula-

tions both for construction and non-construction industry

Government contractors, generally requiring them to an-

aiyze the racial composition of their workforce, identify

the degree of underutilization of minorities based upon

a careful review of a variety of factors, and establish

goals and timetables for correcting the underutilization.

Prior to the 1972 amendments to Title VII, the increasingly

complex requirements of the Executive Order had suc-

cessfully withstood attacks in the courts based upon their

purported unconstitutionality and conflict with Title VII.

Contractors Association of Eastern Pennsylvania v. Secre-

tary of Labor, 442 F.2d 159 (3rd Cir. 1971), cert. denied,

404 U.S. 854 (1971); Southern Illinois Builders Associa-

tion v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), affirmed,

471 F.2d 680 (7th Cir. 1972); Joyce v. McCrame, 320 F.

Supp. 1284 (D.C. N.J. 1970). Cf. Farkas v. Texas Instru-

ment, Inc., 375 F.2d 629 (5th Cir. 1967), cert. denied, 389

U.S. 977 (1967); Farmer v. Philadelphia Electric Co., 329

F.2d 3 (3rd Cir. 1964). Subsequent to Title VII’s 1972

16

amendments, the courts have continued to uphold the con-

tract compliance program as a valid means of integrating

the national workforce. Associated Generai Contractors of

Massachusetts v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert.

denied, 416 U.S. 957 (1974); EEOC v. A.T. & T., 556 F.2d

167 (3rd Cir. 1977), cert. demied, 98 S.Ct. 3145 (1978);

Rossetti Contracting Co. v. Brennan, 508 F.2d 1039, 1045

n. 18 (7th Cir. 1975); Northeast Construction Co. v. Rom-

ney, 485 F.2d 752, 760 (D.C. Cir. 1973).

In 1972, as part of the debate on proposed amendments

to Title VII, Congress again rejected an attempt to elim-

inate the Executive Order program by making Title VII

the exclusive federal remedy for employment discrimina-

tion, 118 Cong. Rec. 3371-73, 3962, 3964 (1972), and it

further refused to transfer the compliance program to the

EEOC. Id. at 1387-98. Congress was well aware of the

distinctions between the Order and the statute. Sen. Saxbe,

speaking against the transfer of the OFCC to the EEOC,

stated :

The Executive order program should not be con-

fused with the judicial remedies for proven discrimina-

tion which unfold on a limited and expensive case-by-

case basis. Rather, affirmative action means that all

Government contractors must develop programs to

insure that all share equally in the jobs generated by

the Federal Government’s spending. Proof of overt

discrimination is not required.

Legislative History of the Equal Employment Opportunity

Act of 1972, p. 915. Congress also rejected two amend-

ments offered by Sen. Ervin which would have prohibited

federal agencies from requiring “discrimination in re-

verse” by employers, id. at 1017, 1074, or which would have

banned preferential treatment due to racial or some other

17

imbalance between a workforce and an available labor

force. Id. at 1714-1717. It was quite clear from the debates

surrounding these unsuccessful amendments that it was

the contracts compliance program, as typified by the Phila-

delphia Plan’s litigation in Contractors Association, supra,

that was protected by Congress.

Two of the amendments which were added to Title VII

in 1972 reinforce the status of the contract compliance

program in relation to Title VII. A section was added

establishing the Equal Employment Opportunity Coordi-

nating Council from various agencies charged with en-

forcing the federal civil rights in employment program.

The Council was given the responsibility for:

“... developing and implementing agreements, policies

and practices designed to maximize effort, promote

efficiency, and eliminate conflict, competition, duplica-

tion and inconsistency among the operations, functions

and jurisdictions of the various departments, agencies

and branches of the Federal Government responsible

for the implementation and enforcement of equal em-

ployment opportunity legislation, orders, and policies.”

42 U.S.C. §2000e-14. Government contractors, whose af-

firmative action plans had been accepted by a Government

agency and who had not deviated substantially from the

plan, were accorded a right of “full hearing and adjudica-

tion” before the denial, withholding, termination or sus-

pension of the contract could take place. 42 U.S.C. §2000¢e-

17. Thus, Congress in 1972 accorded important statutory

rights upon Government contractors operating under

affirmative action plans and, in addition, attempted to

create a mechanism for harmonizing the obligations which

the OFCC and EEOC placed upon contractor/employers.

18

If Kaiser had done nothing in 1974 but maintain its

past practices of filling craft positions with white workers

from the local construction trades, the company would un-

doubtedly have subjected itself to sanctions from the OFCC

and of litigation by black workers or the EEOC itself

under Title VII."* Congress was well aware of the duality

of obligations placed upon employers such as those facing

Kaiser prior to 1974; and Congress clearly intended for

employers to comply with both. In rejecting both of the

Ervin amendments to Title VII in 1972, Congress gave

its clearest indication that an employer’s use of racial

preferences, if initiated pursuant to its affirmative action

obligations under the Executive Order and carefully tai-

lored to fit its particular needs in complying with the

Order, would not violate Title VII. It was never intended

that actual compliance with either the statute or the Order

would create a violation of the other—and both the statute

and the Order heavily encouraged voluntary compliance.

To the extent that there is a latent tension between the.

remedial use of racial preferences under Title VII and

the affirmative use of such preferences contemplated by

the Executive Order, both Congress and the Executive

have recently undertaken to minimize, if not completely

eliminate, that tension. Under President Carter’s Reor-

ganization Plan No. 1, 43 Fed. Reg. 19807 (1978), the

Equal Employment Opportunity Coordinating Council has

been abolished and all of its functions have been trans-

12 At the very least, Kaiser’s past practices would have established

a prima facie violation of Title VII vis a vis its black applicants

and employees. The statistical imbalance, when coupled with ra-

cially exclusionary experiential criteria, would have placed the

considerable burden upon the company of justifying the criteria

under the doctrine of business necessity. Teamsters v. United

States, supra; Hazelwood School District v. U.S., 483 U.S. 299

(1977). In Parson v. Kaiser Aluminum, supra, the company was

unable to successfully establish such a defense.

19

ferred to the EEOC. In addition, the EEOC itself has

issued Guidelines relating to affirmative action under Title

Bg th

The decision of Mr, Justice Powell in last Term’s deci-

sion in the case of University of California Regents v.

Bakke, —— U.S. ——, 57 L.Ed. 2d 750, 778-9 (1978),

strongly indicates that the decision in the instant case

should be reversed. Two of the preconditions for utilizing

racial preferences discussed in the opinion have been met

here. First, there has been a determination by the admin-

istrative body charged with enforcing the Executive Or-

der that Kaiser must utilize such a device in order to

comply with the Order. This determination was made af-

ter at least two careful, on-site compliance reviews of the

plant. Second, Kaiser’s own perception of its vulnerability

to a suit brought by blacks under Title VII, coupled with

the known “various indicia of previous constitutional or

statutory violations,” id. at 779, n. 41, would have un-

doubtedly prompted the company to seek judicial approval

of its 1974 program through the vehicle of a consent de-

cree, had it been sued in court. Even the majority panel

below acknowledged that Kaiser could have voluntarily

13 The EEOC’s Affirmative Action Guidelines were published on

January 19, 1979. 44 Fed. Reg. 4422. They encourage employers

to conduct a self-analysis and to determine whether there is a like-

lihood that they may not be in full compliance with Title VII. If

such a likelihood exists, the Guidelines state:

An employer or other person subject to Title VII who has a

reasonable basis for concluding that it might be held in vio-

lation of Title VII and who takes remedial and/or affirmative

action reasonably calculated to avoid that result on the basis

of such self-analysis does not thereby violate Title VII with

respect to any employee or applicant for employment who is

denied an employment opportunity as a result of such action.

The lawfulness of such remedial and/or affirmative action pro-

gram is not dependent upon an admission, or a finding, or

evidence sufficient to prove that the employer or other person

subject to Title VII taking such action has violated Title VII.

20

undertaken any action that a court could have ordered or

approved.

Whether the decision below is affirmed or reversed, the

volume of litigation challenging discrimination and “re-

verse discrimination” will in all likelihood not abate. In-

deed, one of Title VII’s central themes is to encourage

litigation by persons who perceive themselves as victims

of discrimination. The statute’s primary purpose, however,

as it was legislatively tailored to fit and blend with the

Executive Order contract compliance program, is to elim-

inate discrimination in employment, insure that it does

not recur, compensate victims of the illegal discrimination,

and ultimately foster the existence of a working society

where factors such as race or sex are absolutely irrelevant.

Affirmance of the decision below will have precisely the

opposite effect.

CONCLUSION

Wuererore, for the reasons stated above, amicus re-

spectfully urges that the decision below must be reversed.

Respectfully submitted,

Natuaniet R. Jones

General Counsel

Wuuum D. Wettis

MicHaeL W. Warren

Assistant Counsel

National Association for the

Advancement of Colored People

1790 Broadway—10th FI.

New York, New York 10019

Certificate of Service

Michael W. Warren, Esq., one of the attorneys for the

Amicus certifies that on the 25th day of January, 1979,

I did serve three copies each of the foregoing Amicus Brief

upon each of the attorneys for the Petitioners and Re-

spondent listed below by mailing the same, postage pre-

paid, first class, as follows:

Attorneys for the Petitioners:

Lawrence G. Wallace, Esq.

U.S. Department of Justice

Office of Solicitor General

10th & Pennsylvania Avenue, N.W.

Room 5609

Washington, D. C. 20530

Michael Gottesman, Esq.

1000 Conn. Ave., N.W.

Suite 1300

Washington, D. C. 20036

Paul Mirrengoff, Esq.

Equal Employment Opportunity Commission

Office of the General Counsel

Appellate Division Rm. 2293

2401 E. Street, N.W.

Washington, D. C. 20506

Attorney for Respondent:

Michael Fontham, Esq.

1000 Whitney Bank Building

228 St. Charles Ave.

New Orleans, Louisiana 70130

Respectfully submitted,

MicHaEet W. Warren, Esa.

1790 Broadway, 10th fi.

New York, N.Y. 10019

(212) 245-2100

Attorney for Amicus

N.A.A.C.P.