# Amicus Curiae Brief — Goodman v. Lukens Steel Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0105%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 656 ## Text 4 @ Nos. 85-1626 and 85-2010 In the Supreme Court of the United tates OCTOBER TERM, 1986 CHARLES GOODMAN, ET AL., PETITIONERS V. LUKENS STEEL COMPANY, ET AL. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, ET AL., PETITIONERS Vv. CHARLES GOODMAN, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General MICHAEL CARVIN Deputy Assistant Attorney General ROGER CLEGG Assistant to the Solicitor General DAVID K. FLYNN ROBERT J. DELAHUNTY Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether a labor union can be held liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e ef seq. , or 42 U.S.C. 1981 on the ground that it has passively ac- quiesced in the employer’s discrimination by the manner in which it has handled grievances. (I) TABLE OF CONTENTS Page cs ccc cece ccceccccscces l EEE ee 2 IE EE 6 Argument: I. The courts below erred in finding the unions liable for discrimination under Title VII ................ 7 A. Plaintiffs did not establish, and the courts below did not find, conduct by the unions amounting to disparate treatment or resulting in a disparate Ss te crc wevcccces 7 B. Unions are not liable under Title VII merely for failing to take affirmative steps to combat discrimination by the employer .............. : 12 Il. The courts below erred in finding the unions liable Lecce ccc ccccceess 25 EE I Te 28 TABLE OF AUTHORITIES Cases: Alexander v. Choate, 469 U.S. 287 (1985) .............. 21 Alexander vy. Gardner-Denver Co., 415 U.S. 36 (1974) ... 19, 23, 24 Babrock) v. Jewel Food Co. & Retail Meatcutters Union, ne . 12 Barrentine v. Arkansas-Best Freight System, 450 U.S. EE LL LE 22 Bryant v. United Mine Workers, 467 F.2d 1 (6th Cir. 1972), cert. denied, 410 U.S. 930 (1973) .............. 19 California Brewers Ass’n vy. Bryant, 444 U.S. 598 (1980) .. y) Carpenters Local 46 v. Eldredge, 459 U.S. 917 (1982) .... 25 Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252 (N.D.Ind. © ee cdi weeebecsccecececess Pe 1] Dickerson vy. United States Steel Corp., 439 F. Supp. 55 (E.D. Pa. 1977), later proceeding, 472 F. Supp. 1304 (1979), vacated and remanded sub. nom. Worthy v. United States Steel Corp., 616 F.2d 698 (3d Cir. 1980) . 11 Dothard v. Rawlinson, 433 U.S. 321 (1977) ............ 21 Electrical Workers v. Foust, 442 U.S. 42 (1979) ......... 22 (III) IV Cases — Continued Page Electrical Workers v. NLRB, 341 U.S. 694 (1951) ....... 14 Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975) ..... 0000.00.02... 14, 23 Firefighters Local Union No. 1784 vy. Stotts, 467 U.S. Pe ND oo 0nd bdanserevéencnl cence 26 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ......... y Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) ..... 15, 21-22 Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). 6, 7, 10, 25 General Building Contractors Ass’n vy. Pennsylvania, GIO Was BPW GUND aw nkntdweden@is buctdcesems 6, 7, 16, 20, 24, 25, 26, 27 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......... y Humphrey v. Moore, 375 U.S. 335 (1964) .............. 15, 16 Jefferson v. Hackney, 406 U.S. 535 (1972) ............. 21 J.1. Case Co. v. NLRB, 321 U.S. 332 (1944) .......... 20-21, 23 Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 Genw Se GOED o 6k 0s kwncene bcd vkhaecscckee 5, 11 McDonald vy. Santa Fe Trail Transp. Co., 427 U.S. 273 GUE 66 bv id ine asacesetaeendeeeese eee 11 Monell vy. New York City Dep’t of Social Services, 436 le CP GUE 06.6.5 6 00dviedsdselatcee 14, 24, 25 Motor Coach Employees v. Lockridge, 403 U.S. 274 PEE bh 6is00sk tcaecneceduceseieeies cee 16, 22 NAACP v. FPC, 425 U.S. 662 (1976) ................. 18 New York City Transit Authority v. Beazer, 440 U.S. 568 GOOTEE oki ddd vinpecnckdacieetee eee 9, 21 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) .. 21, 22 NLRB vy. Insurance Agents, 361 U.S. 477 (1960) ........ 16 NLRB vy. Jarka Corp. of Philadelphia, 198 F.2d 618 (3d Gils FOS bus ca tavehdasdetas ceele cd eae 44 NLRB vy. Teamsters, 317 F.2d 746 (2d Cir. 1963) ...... ; 14 Northwest Airlines, Inc. v. Transport Workers, 451 U.S. FP ED ba cc akcknecctbusceieied ae 18 Personnel Administrator v. Feeney, 442 U.S. 256 (1979) . 7, 8, 21, 26 Polk County v. Dodson, 454 U.S. 321 (1981) ........... 24 Rizzo v. Goode, 423 U.S. 362 (1976) .................. 24 Romero v. Union Pac. R.R., 615 F.2d 1303 (10th Cir. ROME avd cdacdecheoessckaeeieee Tis ee oo 11 Rosen v. Hotel & Restaurant Employees, 637 F.2d 592 (3d Cir.), cert. denied, 454 U.S. 898 (1981) ........... 18-19 Cases — Continued Page Steele v. Louisville & Nashville R.R., 323 U.S. 192 GOO go iinncccccccdicnced: C¢adweesseesevensseees 15, 20 Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir. 1983), cert. denied, 469 U.S. 847 (1984) Ne ee ee ala 4 12 Teamsters v. United States, 431 U.S. 324 (1977) ........ 6, 7, 25 Terrell vy. United States Pipe & Foundry Co., 644 F.2d 1112 (Sth Cir. 1981), vacated, 456 U.S. 955, cert. denied, 456 U.S. 972 (1982) .... 0.6... cece eee eee 11 Thornton v. East Texas Motor Freight, 497 F.2d 416 (Gah Cir. 1974)... ccc cece ccc ccccccevecccccevcceees 12 TWA v. Hardison, 432 U.S. 63 (1977) «0... 6 eee 14 United Steelworkers v. Weber, 443 U.S. 193 (1979) ...... 14 Vaca v. Sipes, 386 U.S. 171 (1967) «0.6... ee eee eee 16, 23 Wallace Corp. v. NLRB, 323 U.S. 248 (1944) ......-.--- 15 Washington v. Davis, 426 U.S. 229 (1976) ......-----+: 21 Wilson v. Garcia, 471 U.S. 261 (1985) ....... 6.6.55 +=: l Wimberly v. Labor & Industrial Relations Comm’n, No. 85-129 (Jam. 21, 1967)... 2. ccc cece ee ev evens 21 W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757 os ovedocévewed eens estas di aneeee CneNe- ones 14 Statutes: Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e ef ay ere ty ere ee ee eae te eee oe, 2 § 701(a), 42 U.S.C. 2000e(a) ... 6... ee eee eee ‘20 § 701(b), 42 U.S.C. 2000e(b) ... «6. ee eee eee ee 20 § 703(a), 42 U.S.C. 2000e-2(a) .... 6... eee eee eee 20 § 703(c), 42 U.S.C. 2000e-2(c) ... 6... eee eee 12, 13, 20 § 703(c)(1), 42 U.S.C. 2000e-2(c)(1) .. 6... eee 5, 6, 13, 21 § 703(c)(2), 42 U.S.C. 2000e-2(c)(2) ... ee ee eee 5, 13 $ 703(c)(3), 42 U.S.C. 2000e-2(c)(3) . 2... eee eee 5, 13 $ 706(f), 42 U.S.C. 2000e-S(f) «2... ee eee eee | § 717, 42 U.S.C. 2000-16 2... cece eee eee | Employee Retirement Income Security Act, 29 U.S.C. A cern vtbetdecete cosencecennrsceseses 18 Equal Pay Act, 29 U.S.C. 206(d) .........- 5-2 18 National Labor Relations Act, 29 U.S.C. I51 ef seq.: § 8(b)(2), 29 U.S.C. 158(b)(2) «2... eee ee eee 14 § Ma), 29 U.S.C. 19Ma) 0... cee eee rere eee 15, 16, 22 Vi Statutes — Continued Page Occupational Safety and Health Act, 29 U.S.C. 651 er PE MOURA EA cubes 59 6h nse URN en Sa0 des Ctcee cee ee ent 18 EE et ae ce ee od es ne en 3 3, 6, 24, 25, 26, 27 PNR IES By one ee ATS OL aE 24 NC iia. oe eh ate 13 Miscellaneous: 110 Cong. Rec. (1964): ESSERE OG IIRE Sen ee Oe a eG i pp. 7206-7207......... pbkdaolee de Be ae 15 IEG eye Dome i aineaen 17 I ea Pe a eee eo Figen hs Dome 17 ghar Tn Mena an ga | Rel 18 H.K. Rep. 914, 88th Cong., Ist Sess., Pt. 2 TER rare 14 1 A. Larson & L. Larson, Employment Discrimination MEE ners 2a hsbc baa Wawa dl alas Uuede GF dnance 12, 14, 23 Note, Union Liability for Employer Discrimination, we way. ©. Cov. TOR COI og oi cc ccc cc cnvcccce 13, 21, 23 Jn the Supreme Court of the Gnited States OCTOBER TERM, 1986 No. 85-1626 CHARLES GOODMAN, ET AL., PETITIONERS V. LUKENS STEEL COMPANY, ET AL. No. 85-2010 UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, ET AL., PETITIONERS V. CHARLES GOODMAN, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES The United States has responsibility for enforcing statutes prohibiting discrimination in employment on ac- count of race. See, e.g., 42 U.S.C. 2000e-5(f). The federal government, as the nation’s largest employer, will also be affected by the outcome of this case in its dealings with unions representing federal employees. See 42 U.S.C. 2000e-16. The United States has no significant interest or par- ticular expertise in the questions presented by the petition in No. 85-1626 —/i.e., the appropriate period of limitations for actions brought under 42 U.S.C. 1981 and the retro- spective application of Wilson v. Garcia, 471 U.S. 261 (1985) —and accordingly we will not address those issues in this brief. (1) STATEMENT 1. The plaintiffs in this case are seven black employees or former employees of Lukens Steel Company (“Lukens”), and the United Political Action Committee of Chester County. They represent the class of all blacks who have beer employed by Lukens since June 14, 1967. The defendait unions, the United Steelworkers of America and two of its locals, Local 1165 and Local 2295, are the certified collective bargaining agents of Lukens’ hourly employees. This action was filed in July 1973, alleging in- ter alia that Lukens had discriminated against plaintiffs with respect to wages, promotions, transfers, discipline, testing, discharges of probationary employees, and workplace environment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., or 42 U.S.C. 1981. The unions were also alleged to have been liable for violations of these statutes. Pet. App.' Sa-6a, 56a, 59a-61a.? Of particular relevance to this case is plain- tiffs’ allegation that the unions violated Title VII by “(flailing to fairly and adequately process grievances on behalf of black employees”; “[flailing to represent black persons effectively by passively permitting the employer to discriminate against black persons”; and “{flailing to act affirmatively to cause the employer to refrain from discriminating against black employees” (J.A. 7). The case was tried in 1980. See J.A. 1-2. In February 1984, the district court issued findings of fact and conclu- sions of law, holding that plaintiffs had proven some but not all of their claims. Pet. App. 50a-150a; see also id. at Sa-6a. ' Pet. App. citations refer to the petition filed in No. 85-2010. > Local 2295 has about 80 members, and since 1967 has never had more than 12 black members. Local 1165 has about 2,600 members, of whom about 25% are black. Blacks have been active in this local. Pet. App. 133a. 3 a. With respect to the unions, the district court found that the departmental seniority system was created and maintained by the unions and Lukens in good faith, and that both black and white employees overwhelmingly preferred it to a plant-wide system. Blacks participated ac- tively in negotiating the collective bargaining agreements that embodied this system, and never suggested a change in it. Pet. App. 71a. The district court also found that while there were defi- ciencies in the way the unions processed employees’ grievances, ihere was no proof that this resulted in any greater disadvantage to blacks than to whites. The defi- ciencies were apparently created at least in part by the volume of grievances —about 8,000 were filed during the limitations period (which the district court held to have run from April 7, 1971, onwards under Title VII, and from July 15, 1967, onwards under Section 1981 (Pet. App. 58a)). The number of grievances steadily increased each year, resulting in a backlog. To meet this problem, the unions gave priority to certain grievances, i.e., those that involved a discharge or a suspension lasting more than four days. Of the grievances which were processed through to arbitration, those asserted on behalf of black members were proportionate to their numbers in the workforce. Black grievants had a higher success rate than whites in arbitrated complaints. Jd. at 135a-137a; see also id. at 93a-94a, 101a. indeed, the district court found that the unions had ob- jected to certain discriminatory practices by the company. For instance, in 1968, the unions protested during collec- tive bargaining negotiations against Lukens’ continued use of the Wonderlic Test for screening promotions —a prac- tice that the district court found to have had a racially disparate impact that was not defensible as job-related.’ ’ The district court found that “company representatives dismissed the challenge as being asserted merely on behalf of ‘minorities.’ ” Pet. App. 90a. 4 And it was found probable thai the unions’ use of the grievance procedure protected nonprobationary employees from discriminatory discharges. Pet. App. 90a, 1Ola. b. The district court did, however, find some inaction by the unions to be grounds for liability, on the theory that “mere union passivity in the face of employer- discrimination renders the unions liable under Title VII and, if racial animus is properly inferrable, under § 1981 as well” (Pet. App. 139a). The condemned inaction was found in the unions’ “failures, during the limitations period, to include racial discrimination as a basis for grievances or other complaints against the company” (id. at 137a). In this connection, the court made three findings. First, the court found that the unions had a uniform policy of not filing grievances on behalf of probationary employees, for any reason (Pet. App. 137a). And, con- cluded the court, “(t]he union knew that blacks were being discharged by Lukens .. a disproportionately higher rate than whites” (ibid. (citations omitted)).* Second, while the unions objected to Lukens’ use of all types of tests, they did not base the objections on the tests’ racially disparate impact, although they were “chargeable with knowledge” of the disparity (Pet. App. 137a). Third, the unions had decided not to assert racial discrimination as the basis for grievances generally, although apparently they would process such complaints on other grounds (Pet. App. 138a; but cf. J.A. 731-732). The unions argued that this policy was a tactical response * The unions argued in the court of appeals that prior to 1974 they had not believed that they had a right to file grievances on behalf of probationary employees, and that after 1974 there were relatively few discharges of probationary employees. Unions’ C.A. Br. 53-57. The district court did not dispute the date of most of the discharges (Pet. App. 103a; see also id. at 101a), but it did conclude that the unions should have challenged pre-1974 racial discharges (/d. at 137a). to Lukens’ reluctance to admit discriminatory practices; the district court also found that the company “preferred to avoid confronting racial issues if at all possible” (Pet. App. 119a). Nonetheless, the court rejected this justifica- tion,- on the grounds that racial harassment grievances could not be recast and because “[t]he clear preference of both the company and the unions to avoid addressing racial issues served to perpetuate the discriminatory en- vironment” (id. at 138a).° Accordingly, the district court enjoined the unions from “failing to challenge discriminatory discharges of proba- tionary employees” (Pet. App. 155a), “failing or refusing to assert meritorious claims of racial discrimination” (id. at 157a), and “tolerating or giving tacit encouragement to racial harassment” (id. at 158a). 2. The court of appeals affirmed the district court on the issue of the unions’ liability. The court listed the rele- vant provisions of Title VII as Sections 703(c)(1) and (3), 42 U.S.C. 2000e-2(c)(1) and (3). Whiie noting the criticisms that have been made of Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973), the court apparently endorsed “its premise that there is an af- firmative duty on the part of the unions to combat discrimination in the workplace” (Pet. App. 25a), and therefore rejected the unions’ argument that they had done nothing to “cause” an employer to discriminate under Sec- tion 703(c\(3) of Title VII. Further, it stated that “the unions intentionally avoided asserting claims of discrim- ination,” thereby “violat[{ing] the duty of fair representa- tion owed to their members” and “the duty. to enforce the ‘ A fourth finding by the district court, that the unions were answerable for Lukens’ discriminatory initial assignments, was vacated by the court of appeals. No plaintiff adequately represented the class on this claim. Pet. App. 20a. © It did not list Section 703(c)(2), 42 U.S.C. 2000e-2(c)(2), as re- levant. 6 collective bargaining agreement” (Pet. App. 26a (citations omitted)); this violated Section 703(c)(1) of Title VII, too, the court continued, because by their policy the unions “discriminated against the victims who were entitled to representation” (Pet. App. 26a). Finally, the court of ap- peals held that “(t]he district court’s finding of intentional discrimination [sic] properly supports the claims under § 1981 as well” (id. at 26a-27a). SUMMARY OF ARGUMENT I. A. Liability under Title VII conventionally requires a finding of disparate treatment or disparate impact. Furnco Construction Corp. v. Waters, 438 U.S. 567, 581-582 (1978) (Marshall, J., concurring in part and dis- senting in part); Teamsters v. United States, 431 U.S. 324, 335-336 n.15 (1977). Here, the courts below found neither with respect to the unions, and accordingly the finding of liability under Title VII should be reversed. B. Nor should liability be predicated on an alternative theory resting on the unions’ failure to file particular grievances in a particular manner against the emmployer’s discrimination. There is no more laudable goal for a union than combatting an employer’s racial discrimination. But unions have only finite resources, and to hold them liable under Title VII for failing to give absolute priority to this goal cannot be squared with the language or intent of Title VII, fails to afford unions the flexibility they must have as representative bodies, and is antithetical to the basic prin- ciple that one has a duty only to police one’s own ac- tivities. Il. With regard to the court of appeals’ 42 U.S.C. 1981 holding, we think General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982), is dispositive. That decision required discriminatory intent on the part of the defendant, and here there was no finding that the unions had such intent. The fact that the unions deliberately adopted their grievance policies does not suffice, any more than did the fact that the employer in General Building Contractors deliberately adopted its hiring policies, since “ ‘(discriminatory purpose’ * * * implies more than intent as volition or intent as awareness of consequences.” Per- sonnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) (citation omitted). ARGUMENT I. THE COURTS BELOW ERRED IN FINDING THE UNIONS LIABLE FOR DISCRIMINATION UNDER TI- TLE VII A. Plaintiffs Did Not Establish, And The Courts Below Did Not Find, Conduct By The Unions Amounting To Disparate Treatment Or Resulting In A Disparate Impact On Blacks Neither of the courts below rested its conclusion of union liability on either of the two theories— disparate treatment or disparate impact—upon which Title VII liability has conventionally been predicated. Furnco Con- struction Co. v. Waters, 438 U.S. 567, 581-582 (1978) (Marshall, J., concurring in part and dissenting in part); Teamsters v. United States, 431 U.S. 324, 335-336 n.15 (1977). Nor will the record in this case support liability on either theory with respect to the unions. There was no finding of intentional discrimination by the district court, and no basis on which such a finding could have been supported. While the court of appeals referred to the district court’s finding that “the unions in- tentionally avoided asserting claims of discrimination,” the unions’ “deliberate choice not to process grievances,” and “[t]he district court’s finding of intentional discrimination” (Pet. App. 26a-27a), such statements are in context completely ambiguous. The unions’ policies cer- tainly were “intentional” and “deliberate” in the sense of being advertent. It does not, however, follow that they were motivated by racial animus. See Personnel Admin- istrator v. Feeney, 442 U.S. 256, 279 (1979) (citation omitted) (“ ‘Discriminatory purpose’ * * * implies more than intent as volition or intent as awareness of conse- quences”). The district court’s more -pecific findings do not suggest that racial animus existed. The court found objectionable the unions’ policy “to intentionally avoid[] asserting discrimination claims * * * regardless of whether, as a subjective matter, [the unions’] leaders were favorably disposed toward minorities” (Pet. App. 139a-140a), and its policy of not bringing grievances on behalf of proba- tionary employees even though “[t]he union[s] knew that {black probationary employees] were being discharged by Lukens at a disproportionately higher rate than whites” (id. at 137a). But these policies applied equally to black and white employees and thus cannot constitute a case of disparate treatment. While the district court used the words “racial animus” in finding liability under Section 1981 (Pet. App. 138a), we think it plain that such a label was misapplied to decisions made on tactical grounds and lacking any hint of discriminatory motive focused on the race of the claimant. There is likewise nothing in the record on which to base a finding of disparate impact against the unions, a hypothesis which has heretofore gone virtually unmen- tioned by the parties and the courts below.’ With respect / ’ The district court stated that the plaintiffs had made both disparate impact and disparate treatment claims (Pet. App. Sla), but it generally did not distinguish between claims made against the com- pany and claims made against the union, nor between claims premised on one theory rather than the other. In fact, the plaintiffs apparently pleaded only that the transfer and seniority provisions of the collective bargaining agreements negotiated by the unions —a quite different set of issues — gave rise to racial disparities; they clearly did not allege that 9 to the employer’s tests, the district court pointed out that the unions did oppose the use of the tests (Pet. App. 137a)—apparently with some success (see J.A. 331-332, 653-654, 702)—and the court did not suggest that the unions would have been more successful in their opposi- tion had it been based on racial grounds. As to the policy against bringing grievances on behalf of probationary employees, and the failure to pursue racial harassment claims raising no other violation of the contract, there was simply no finding regarding the effects of those policies on any particular racial group. With regard to the handl- ing of grievances in all other respects, the district court found evidence of discrimination “inconclusive,” and found that there was “no hard evidence to support an in- ference that [the unions’] inadequacies [in processing grievances] disadvantage blacks to a greater extent than whites” (Pet. App. 135a; see also id. at 93a-94a, 101a). The court of appeals noted the district court’s conclusion that “the plaintiffs had failed to present adequate proof of discrimination” regarding “[p]rocessing grievances by the any of the union practices on which liability was ultimately found gave rise to a disparate impact. See 6/14/73 Complaint—Class Action €€ 48-49. Indeed, had disparate impact analysis been at issue in the district court, serious questions concerning the role of certain defenses would have been explored. The limiting doctrine of “business” —here, “union” —“necessity” (Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)) would certainly be applicable, though likely to differ in some respects from business-necessity. Such a defense seems especially plausible here, where tactics, backlog, and limited resources of the unions appear to support their decision to bring certain grievances, and in certain ways. The possibility that certain actions may be justifiable pursuant to a bona fide seniority system also must be recognized and seems potentially relevant with respect to the policy of disfavoring probationary employees with respect to grievances. See Ford Motor Co. v. EEOC, 458 U.S. 219, 239 (1982); California Brewers Ass'n v. Bryant, 444 U.S. 598 (1980). See also New York Transit Authority v. Beazer, 440 U.S. 568, 587 n.31 (1979). 10 unions insofar as the complaints centered on the number of grievances which the locals presented initially and pur- sued through arbitration” (id. at 6a). Indeed, the district court further observed that as to grievances reaching ar- bitration, success was achieved by black employees at a rate 50 percent higher than achieved by whites (id. at 136a). Since neither disparate treatment nor disparate impact was proven or found to exist by either of the courts below, liability can only be justified on some alternative theory.® That theory rests on the unions’ perceived failure vigorously and successfully to pursue, using the ter- minology of racial discrimination, complaints of discrimination by the employer. Such a theory of liability, based On passive acquiescence in discrimination by the employer, is without precedent in the decisions of this * Plaintiffs might have argued in the courts below that the unions’ failure to bring grievances on behalf of probationary employees, and their alleged failure to pursue in any way certain racial harassment claims, gave rise to Title VII liability on the part of the unions because that conduct had a disparate impact on black employees (as discussed, the opinions of the courts below make clear that there was no disparate impact on blacks resulting from the way in which the unions pursued individual non-harassment grievances (Pet. App. 135a-137a)). It is conceivable, though not clear on the record, that these policies may have had an impact on blacks more adverse than on members of other racial groups. We stress again, however, that sucha theory was neither advanced by the plaintiffs in their complaint nor presented in the form of evidence or argument at trial. Because the theory was at no time asserted, no defenses to it were articulated or established by the unions. The issue not having been raised by the par- ties, it properly played no part in the decisions of the trial and ap- pellate courts. As a general proposition, this Court has made clear its reluctance to consider alternative theories of Title VII liability which were in no way dealt with in the courts below. Furnco Construction Corp. v, Waters, 438 U.S. at 580-581. In any event, the issue is cer- tainly of sufficient difficulty that it should be considered by this Court only in a case which has had full litigation and consideration in the lower courts. Court,’ though it has appeared in the jurisprudence of the lower courts.!® It is without basis in Title VII, and for that reason the decision of the court below must be reversed. ® This Court has not heretofore addressed the Title VII question at issue here. The court of appeals, however, seems to have thought that the decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), was relevant, saying that it rejected “the union’s defense that in representing a number of employees it is sometimes necessary to com- promise the grievance of one” (Pet. App. 26a). McDonald does not, however, endorse the proposition that a union may never compromise one employee’s grievance for the sake of others’ grievances; such a rule would make it impossible for a union to represent any grievants ai all. Nor does McDonald create union liability for an employer's practices. The most that McDonald can be construed to say is that a union is liable to employees under Title VII if the union itself intentionally discriminates against them—for example, if the union negotiates penalties from the employer that take account of the employees’ race, and that differ in severity along explicitly racial lines. 427 U.S. at 284-285. It is undisputed that such intentional discrimination would breach Title VII; that is, however, not the present case. ‘0 For instance, the leading case of Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 989 (D.C. Cir. 1973), spoke uf “union passivity” and “affirmative union obligation under Title VII.” Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252, 282-283 (N.D. Ind. 1977), adopted Macklin’s approach, adding that union “action [against the employer's sex discrimination] must be initiated whether or not a female employee complains to the Union of discriminatory treatment” (citation omitted). Dickerson v. United States Steel Corp., 439 F. Supp. 55, 62 (E.D. Pa. 1977), later proceeding, 472 F. Supp. 1304, 1353 n.41 (1979), vacated and remanded on other grounds sub nom. Worthy v. United States Steel Corp., 616 F.2d 698 (3d Cir. 1980), spoke in terms of “vicarious liability.” In Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1120 (Sth Cir. 1981), vacated on other grounds, 456 U.S. 955, cert. denied, 456 U.S. 972 (1982), the court said that unions have the “legal requirement of tak- ing every reasonable step to bring employment practices into com- pliance with the law.” Another court has said that unions must “insure [employer] compliance” with Title VII. Romero v. Union Pac. R.R., 615 F.2d 1303, 1310-1311 (10th Cir. 1980). A diverging line of authori- ty, truer to the language and intent of Title VII, apparently holds that a union is implicated in an employer’s violations only if the umon 12 B. Unions Are Not Liable Under Title VII Merely For Failing To Take Affirmative Steps To Combat Discrimination By The Employer There is no more laudable goal for a union than com- batting an employer’s racial discrimination. But unions have only finite resources, and to hold them liable under Title VII for failing to give absolute priority to this goal cannot be squared with the language or intent of Title VII, fails to afford unions the flexibility they must have as representative bodies, and is antithetical to the basic prin- ciple that one has a duty only to police one’s own, ac- tivities. 1. Title VII deals separately with the liability of unions as distinct from employers (Section 703(c), 42 U.S.C. 2000e-2(c)): It shall be an unlawful employment practice for a labor organization — (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; itself treated similarly situated employees differently on racial (or other prohibited) grounds. See, e.g., Babrocky v. Jewel Food Co. & Retail Meatcutters Union, 773 F.2d 857, 868 (7th Cir. 1985); Tare v. Weverhaeuser Co., 723 F.2d 598, 606-607 (8th Cir. 1983), cert. denied, 469 U.S. 847 (1984); Thornton v. East Texas Motor Freight, 497 F.2d 416, 424-426 (6th Cir. 1974). One commentator has noted that “[mJost courts * * * appear to rely upon previous decisions for the propos.tion that acquiescence alone can produce liability, with lit- tle attention to the statute, so that the proposition survives as much on the strength of repetition as on careful analysis.” And Macklin, the decision most “rel[ied] upon,” “provides an infirm base upon which to found a proposition of law, and it quite possibly states a broader rule than is necessary.” | A. Larson & L. Larson, Employment Discrimination § 44.42, at 9-27 to 9-28 (1985). 13 (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any in- dividual of employment opportunities, or would limit such employment opportunities or otherwise adverse- ly affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. On its face, this language appears to present a prohibition against various discriminatory acts by a union. One looks in vain for admonitions of affirmative duty to combat or prevent someone else’s discriminatory conduct, or any suggestion that union liability could be predicated on such grounds.'' Though Sections 703(c)(1) and (2), dealing with unions’ liability, contain catch-all phrases such as “or otherwise to discriminate,” the structure of Section 703(c) suggests that 703(c)(1) and (2) focus on matters of membership and on internal union affairs, while it is Sec- tion 703(c)(3) which most specifically addresses the in- teraction between the union’s conduct and the conduct of the employer. See Note, Union Liability for Employer Discrimination, 93 Harv. L. Rev. 702, 721 (1980). And that provision clearly states that it is only when a union “cause[s] or attempt[s] to cause” an employer’s discrimina- tion that it is liable. Moreover, Section 703(c)(3) was taken '' It is also instructive tO eXamine a statutory model creating vicarious liability for a failure or refusal to act that Congress chose not to follow in framing Section 703(c). That statute, 42 U.S.C. 1986, imposes liability on every person who, “having knowledge” that Sec- tion 1985 violations are to be committed, and “having power to pre- vent or aid in preventing the[m],” “neglects or refuses to do so, if such wrongful act be committed.” 14 in haec verba from the National Labor Relations Act, 29 U.S.C. 158(b)(2) (Section 8(b)(2) of the NLRA), and this section had already been given a “restricted” meaning by the courts, narrower even than “to induce” or “to en- courage.” Electrical Workers v. NLRB, 341 U.S. 694, 703 (1951); see also NLRB v. Teamsters, 317 F.2d 746, 749 (2d Cir. 1963) (“suggestion” or “compulsion”); NLRB v. Jarka Corp. of Philadelphia, 198 F.2d 618, 621 (3d Cir. 1952). “To say that the union ‘causes’ employer discrimination simply by allowing it is to stretch the meaning of the word beyond its limits.” 1 Larson, supra, § 44.50, at 9-40. Cf. Monell vy. New York City Dep’t of Social Services, 436 U.S. 658, 691-692 (1978). 2. The legislative history confirms that Congress did not intend to expand a union’s responsibility for the employer’s wrongdoing. As a general matter, of course, the Congress which passed Title VII insisted that “ ‘management prerogatives, and union freedoms. . . be left undisturbed to the greatest extent possible.’ ” United Steelworkers v. Weber, 443 U.S. 193, 206 (1979) (quoting H.R. Rep. 914, 88th Cong., Ist Sess., Pt. 2, at 29 (1963)). On other occasions, this Court has cautioned against reading Title VII so expansively that the rest of the labor Statutory scheme is disrupted. See, e.g., Emporium Capwell Co. v. Western Addition Community Organiza- tion, 420 U.S. 50, 69 (1975); TWA vy. Hardison, 432 U.S. 63, 79 (1977); cf. W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 771 (1983). During the lengthy Senate debate, the bill was criticized by Senator Hill as a threat to the labor movement because “all of the rights which a union has under the National Labor Relations Act [NLRA] or the Railway Labor Act could be suspended.” 110 Cong. Rec. 487 (1964). Senator Clark, one of the two bipartisan floor managers of Title 15 VII, made a detailed reply to these objections on April 8, 1964.'? Clark had requested the Department of Justice to prepare a memorandum rebutting Hill’s arguments; dur- ing his reply to the criticisms he placed this memorandum in the record. The memorandum stated (110 Cong. Rec. 7206-7207) that “[nJothing in title VII or anywhere else in this bill affects rights and obligations under the NLRA and the Railway Labor Act” and that “title VII would have no effect on the duties of any employer or labor organiza- tion under the NLRA or under the Railway Labor Act, and these duties would continue to be enforced as they are now.” Under the labor laws existing at that time unions had a “duty of fair representation,” forbidding them from engaging in discrimination, inter alia, on the basis of race. See Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Wallace Corp. v. NLRB, 323 U.S. 248 (1944); Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). In Humphrey v. Moore, 375 U.S. 335 (1964), handed down on January 6, 1964, nine days before Senator Hill claimed that Title VII would impliedly repeal unions’ statutory rights, the Court dealt with the scope of a union’s “duty of fair representation” arising under Section 9(a) of the Na- tional Labor Relations Act, 29 U.S.C. 159(a), and em- phasized the breadth of discretion allowed to unions under national labor policy. It reaffirmed that “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion” (375 U.S. at 349, quoting Ford Motor Co. v. Huffman, 345 U.S. at 338), and added (375 U.S. at 349-350): Just as a union must be free to sift out wholly frivolous grievances which would only clog the griev- '2 Senator Clark also chaired the subcommittee of the Senate Labor and Public Welfare Committee that had held hearings on the bill and that brought it to the Senate floor. 16 ance process, so it must be free to take a position on the not so frivolous disputes. Nor should it be neutralized when the issue is chiefly between two sets of employees. Conflict between employees repre- sented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance proc- esses. The Court ruled that the union had not breached its duty of fair representation because it “took its position honest- ly, in good faith and without hostility or arbitrary discrimination” (id. at 350).'3 Thus, there is no reason to suppose that Congress intended Title VII to create a broad, new union duty to grieve employer misconduct. It would, of course, have been remarkable if Congress had intended to visit liability for an employer’s discrimina- tion on the union, cr vice versa. Employers and unions “proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest” (General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 394 (1982), quoting NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960)). It is, therefore, unsurprising to find the '3 Under post-1964 case law, and most notably under the leading case of Vaca v. Sipes, 386 U.S. 171, 190 (1967), a breach of the NLRA’s duty of fair representation “occurs only when a union’s con- duct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith” (citations omitted). Indeed, this Court has indicated that a breach requires “deliberate and severely hostile and irrational treatment.” Motor Coach Employees v. Lockridge, 403 U.S. 274, 301 (1971). In this case, of course, plaintiffs have not alleged a violation of Sec- tion 9(a), 29 U.S.C. 159(a), which is the statutory source of the duty of fair representation. 17 following exchange in the Senate debate on Title VII (110 Cong. Rec. 7217 (1964) (emphasis added)): {[Sen. Dirksen:] If an employer obtains his employees from a union hiring hall through operation of his labor contract, is he in fact the true employer from the standpoint of discrimination because of race, color, religion, or national origin when he e:.er- cises no choice in their.selection? /f the hiring hall sends only white males, is the employer guilty of discrimination within the meaning of this title? If he is not, then further safeguards must be provided to protect him from endless prosecution under the authority of this title. [Sen. Clark:] An employer who obtains his em- ployees from a union hiring hall through operation of a labor contract is still an employer. Jf the hiring hall discriminates against Negroes, and sends him only whites, he is not guilty of discrimination—but the union hiring hall would be. Cf. General Building Contractors Ass’n v. Pennsylvania, supra; Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77 (1981) (employer has no right of contribution from union for former’s liability under Title VII for discriminatory wage differentials collectively bargained for). If, under Title VII, an employer cannot be held liable for failing to identify and counteract union discrimination in the referral of employees, there can be little basis for holding a union liable when it fails to take affirmative measures to combat an employer’s discrimination. This conclusion is reinforced by the absence of any con- trary suggestion in the lengthy debate concerning the man- ner in which Title VII would be enforced, the resolution of which was critical to the enactment of the 1964 Civil Rights Act. See 110 Cong. Rec. 12595-12596 (1964) (remarks of Sen. Clark). Senator Humphrey stated that the Senate’s changes in the House bill vere “concerned 18 chiefly with procedures for enforcement” (id. at 12707). Yet apparently no one, either friend or foe of the bill, sug- gested that Title VII would impose significant enforce- ment responsibilities on unions. Nor did Congiess say that the unions’ “duty of fair representation” was to be ex- panded. Rather, Congress clearly left the task of enforce- ment to private plaintiffs and specified governmental bodies and did not contemplate implied rights of action against nonviolators. See Northwest Airlines, Inc. v. Transport Workers, 451 U.S. at 93-94 (footnote omitted) (“The comprehensive character of the remedial scheme fashioned by Congress [in Title VII] strongly evidences an intent not to authorize additional remedies”); NAACP v. FPC, 425 U.S. 662 (1976). It is therefore apparent from the language and legislative history of Title VII that unions were to retain their freedoms and prerogatives to the extent consistent with their duty not to discriminate.'* '4 The passive acquiescence theory adopted by the courts below could be applied with equal facility and no less justification to a whole array of federal statutes. If, for instance, an employer has violated employees’ statutory rights under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 ef seqg., then unions might be held liable to the extent that they had failed to protest or to protest ef- fectively. The Equal Pay Act, 29 U.S.C. 206(d), the Occupational Safety and Health Act, 29 U.S.C. 651 ef seq., and other federal statutes designed to benefit employees could also be read to imply causes of action against unions for failure to aid in preventing employers’ violations. Unions would become all-purpose enforcement agencies for the entire array of employees’ statutory rights, with respect not only to employer discrimination, but also to hazardous working conditions, job-related diseases, pension funds, wages and hours, and so on. Such a radical conception of the union’s obligations would burden the collective bargaining process, require unions to expend substantial resources monitoring employers, expose them to the risk of severe financial liabilities, and displace existing enforcement mechanisms. And such a sweeping reordering of roles and priorities surely requires an unequivocal mandate from Congress. See Rosen v. Hotel & Restaurant Employees, 637 F.2d 592, 599 n.10 (3d Cir.), cert. denied, 19 And thus their discretion over the grievance process, sub- ject to the command that they not discriminate, was in- tended to remain extensive.'* 3. The court of appeals would here impose liability on the unions in a distinct set of circumstances: where the unions at most made deliberate but good faith tactical decisions as to how much, in which cases, and by what arguments they would challenge allegations of discrimina- tion by the employer, discrimination to which they had not become a party by, for instance, signing a collective bargaining agreement with provisions sanctioning or man; dating discrimination. This Court has never imposed liability on a union in this sort of case, even On a more familiar disparate impact theory. We submit that impos- ing liability on the union here would have significant and unexpected implications once it is appreciated what is distinctive about a union acting in this kind of a represen- tative capacity. 454 U.S. 898 (1981) (denying union’s ERISA liability for “failure to oversee” employer); Bryvunt v. United Mine Workers, 467 F.2d 1, 6 (6th Cir. 1972), cert. denied, 410 U.S. 930 (1973) (denying union liability for mine operators’ failure to comply with Federal Mine Safe- ty Code standards). 'S Indeed, to avoid Title VII liability under an “affirmative duty” standard, unions would have to press for employers’ recognition of the statutory rights of individuals, although Congress conceived of those rights as independent of the collective bargaining process. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). And in order to ensure those rights, unions would have to sacrifice their bargaining advantages on other negotiating fronts, leaving them — and the employees they represented —in a weaker position overall in deal- ing with management. Ironically, the more discriminatory an employer's conduct, the more a union would have to concentrate its demands on the issue of discrimination, and the weaker it would be in al! other bargaining areas. Congress clearly did not mean to force unions (and thus employees) to seek, as a mere concession from employers and in exchange for concessions on their part, what it chose to vest in employees as an indefeasible legal right. 20 The unique functions unions perform must be kept in view when considering the Title VII liability to which they may be subject. As we have argued, the statute itself recognizes such a distinct role, dealing with the union’s liability in Section 703(c) and the employer’s liability in Section 703(a), 42 U.S.C. 2000e-2(a). Further, this in- ference from the statutory scheme not only cautions against some of the more expansive theories of union liability, tending as they do to a theory of vicarious liabili- ty,'® it invites attention to the differing role and nature of employers and unions. Except when the union is itself an employer (see 42 U.S.C. 2000e(a) and (b)) or when it in ef- fect takes over employment decisions for an employer (see General Building Contractors, supra), a union exists to represent the bargaining unit employees’ interests and to press their claims with the employer. A labor union under the scheme of the national labor laws is a democratically controlled, representative institution, compelled by law to reflect the will of its constituents subject to the duty of fair representation of all in the bargaining unit. An employer, by contrast, has an altogether different relation to his employees. They are not his constituents but rather his agents and instruments. In these respects a union is more like a limited purpose governmental unit in its relations with its members. Stee/e v. Louisville & Nashville R.R., 323 U.S. at 202 (“Congress has seen fit to clot'ie the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents, cf. J.J. Case Co. v. Labor Board, (321 U.S. ‘6 We would note that holding a union liable under a disparate im- pact theory in a case like this one — where the union has done nothing but fail to challenge (with some unspecified measure of insistence and success) an employer's discrimination—looks very much like the “passive acquiescence” standard which, as we discussed earlier, is in- consistent with the language and intent of Title VII. 21 332, 335 (1944)], but it has also imposed on the represen- tative a corresponding duty”); see also NLRB v. Allis- Chalmers Mfg. Co., 388 U.S. 175, 181 (1967). Of course, like a governmental unit, if a union intentionally discriminates it is rightly subject to liability and sanctions. See Note, Union Liability for Employer Discrimination, 93 Harv. L. Rev. 702, 721 (1980) (footnote omitted) (“A union’s passivity violates [Section 703(c)(1)] only if its in- tent in remaining inactive was to discriminate”). And when a government (or a union) acts as an employer it is subject to the same disparate impact analysis as other employers. New York City Transit Authority v. Beazer, 440 U.S. 568 (1979); Dothard v. Rawlinson, 433 U.S. 321 (1977). But this Court has declined to subject governments to liability under more expansive theories of liability in their govern- mental functions: a representative entity must always balance and order the various claims and interests of those whom it represents. Cf. Alexander v. Choate, 469 U.S. 287, 306-309 (1985); Personnel Administrator v. Feeney, supra; Washington v. Davis, 426 U.S. 229, 246-248 (1975); Jefferson v. Hackney, 406 U.S. 535, 549-551 (1972). A union’s allocation of time, resources, or political capital go one set of claims necessarily subtracts from what is available to competing claims and interests, and Congress in Title VII did not seek to impose any particular set of priorities on labor unions, or to require that certain claimants get preferential treatment. Cf. Wimberly v. Labor & Industrial Relations Comm’n, No. 85-129 (Jan. 21, 1987), slip op. 5-6. Combatting discrimination is an iniportant union goal, but so is seeking a safe and healthy workplace environment; unemployment, accident, and sickness coverage; and higher wages. “The complete satisfaction of all who are represented is hardly to be ex- pected,” and a “[w]ide range of reasonableness must be allowed a statutory bargaining representative.” Ford 22 Motor Co. v. Huffman, 345 U.S. at 338; see also Barren- tine v. Arkansas-Best Freight System, 450 U.S. 728, 742 (1981). Thus, Congress did not contemplate an open- ended mandate to courts to determine when a union, act- ing consistently with its NLRA duty of fair representation and with no racial animus, has or has not given the claims and grievances of its minority members just the right amount and just the right kind of attention. As this Court discussed in Electrical Workers v. Foust, 442 U.S. 42, 48-52 (1979), unions must be afforded flex- ibility in their grievance actions. In declining to allow a member to receive punitive damages where the union missed a grievance filing deadline, the Court stressed the same factors which are most relevant here: “an employee can recover in full from his employer” (id. at 49); awards against unions “could deplete union treasuries, thereby im- pairing the effectiveness of unions as collective-bargaining agents” (id. at 50-51) and “curtail[ing] the broad discretion that Vaca afforded unions in handling grievances” (id. at 51); if the unions are held liable, they “might feel com- pelled to process frivolous claims or resist fair settlements” (id. at 52); thus, “[a]bsent clear congressional guidance, we decline to inject such an element of uncertainty into union decisions regarding their representative functions” (ibid.). See also NLRB vy. Allis-Chalmers Mfg. Co., 388 . B. at 180. 1) be sure, unions have been held to a duty of fair representation under Section 9(a) of the NLRA, 29 U.S.C. 159(a), but that duty recognizes that “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huff- man, 345 U.S. at 338; see also Motor Coach Employees v. Lockridge, 403 U.S. 274, 301 (1971) (breach of duty re- quires “deliberate and severely hostile and irrational treat- oe") tan. Mean eee 23 ment”); Vaca v. Sipes, 386 U.S. at 190 (breach if treatment is “arbitrary, discriminatory, or in bad faith”). The terms of the duty of fair representation are different and less in- trusive upon the union’s performance of its representative function than would be theories that imposed liability on a union for failing to neutralize an employer’s discrimina- tion, theories which would threaten to subvert the very wide discretion for good faith conduct which this Court has found to be appropriate.'’ Further, although the union’s status as exclusive bargaining agent for all the employees of a bargaining unit in general forces individuals or groups of individuals to pursue their claims and grievances exclusively through the union—Emporium Capwell Co. v. Western Addition Community Organization, supra; J.I. Case Co. v. NLRB, 321 U.S. 332, 338-339 (1944)—it has been clearly '? The court of appeals stated that “the district court found that the unions intentionally avoided asserting claims of discrimination. In so doing the unions violated the duty of fair representation owed to their members” (Pet. App. 27a). There, indeed, is confusion compounded. First, the odd phrase “intentionally avoided asserting claims” of course conceals the fact that no more was proved than that there was a knowing tactical choice to press such claims, but not in terms of racial discrimination. See pages 7-8, supra. There is no finding of an im- proper motive for this choice. Second, such tactical choices by no means rise to the level of, for example, “deliberate and severely hostile and irrational treatment” required to support an action for breach of the duty of fair representation. Third, it is not at all clear what the relevance toa T ‘e VII action of such a breach of another statutory duty would be, even if it had been pleaded (it was not) or were remote- ly within the range of proof. Compare Emporium Capweill Co. v. Western Addition Community Organization, 420 U.S. at 70-73 (Title VII violation does not establish NLRA violation); A/exander v. Gardner-Denver Co., supra; see generally | Larson, supra, § 44.20, at 9-18 to 9-22, § 44.50, at 9-40; Note, Union Liability for Employer Discrimination, 93 Harv. L. Rev. 702, 719-724 (1980); pages 14-16, supra. iia 24 established that Title VII claims may be brought outside the usual union representational route by individuals and groups who choose to do so, consulting/only their own in- terests. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). And this would strongly suggest that an extension of doctrine which would in effect compel the union to bring such claims with some unspecified measure of priori- ty not only was not contemplated in the overall scheme of the labor laws; it is quite unnecessary. 4. Finally, any theory of liability which would impose Title VII liability on a union in circumstances such as those in this case would conflict with the basic principle that one is liable only for one’s own misdeeds, not for those of another; there is, in other words, generally no af- firmative duty to stop another from violating the law. This Court has already applied this principle in General Building Contractors Ass’n vy. Pennsylvania, supra, discussed in the next section. The language of Section 1981 “does not speak in terms of duties,” and the statute does not impose an “affirmative obligation,” to guarantee minority rights “as against third parties who would in- fringe them”; rather, it requires only that persons them- selves “refrain from intentionally denying blacks” their rights under the statute (458 U.S. at 396). The principle has also been applied in several cases brought under 42 U.S.C. 1983. Polk County v. Dodson, 454 U.S. 321, 326 (1981) (“official policy must be ‘the moving force of the constitutional violation’” in order to establish Section 1983 liability, quoting Monell v. New York City Dep’t of Social Services, 436 U.S. at 694); Rizzo v. Goode, 423 U.S. 362, 376 (1976) (positing a “duty” to eliminate con- stitutional violations for those who played no affirmative part in committing them and a “right” for others to have this duty performed “blurs accepted usages and meanings in the English language in a way which would be inconsis- tént with the words Congress chose in Section 1983”); 25 Monell, 436 U.S. at 691-692 (“language cannot be easily read to impose liability vicariously’ where Congress “specifically provide[d] that A’s tort became B’s liability if B ‘caused’ A to subject another to a tort”). The clear distinction drawn between union liability and employer liability in Title VII, and Congress’s desire to maintain the well-established division of rights and responsibilities be- tween the two, indicates that this principle—of respon- sibility only for one’s own actions — should apply a fortiori to Title VII.'8 Il. THE COURTS BELOW ERRED IN FINDING THE UNIONS LIABLE UNDER 42 U.S.C. 1981 Insofar as the decision of the lower courts is based on Section 1981, it conflicts with this Court’s holding in General Building Contractors Ass’n v. Pennsylvania, supra. In that case, a union discriminated against blacks in its referrals to employers from a union-operated hiring hall. The employers in the case had agreed to hire only on the basis of the union’s referrals. No claim was made that the employers had themselves discriminated; nonetheless, the lower courts had held them vicariously liable for the union’s discrimination, on the ground that they had “a 'S The Court made a “cf.” cite to Furnco Construction Co. v. Waters, 438 U.S. at 577-578, a Title VII case, in General Building Contractors tor the proposition that, in passing Section 1981, Con- gress “did not intend to make [employers] the guarantors of the workers’ rights as against third parties who would infringe them” (458 U.S. at 396). And in Teamsters v. United States, 431 U.S. 324, 353 (1977), this Court said it “would be a perversion of congressional pur- pose” in passing Title VII to “place an affirmative obligation on the parties to a seniority agreement to subordinate those rights in favor of the claims of pre-Act discriminatees without seniority.” See also Carpenters Local 46 v. Eldredge, 459 U.S. 917, 921-922 (1982) (Rehnquist, J., dissenting from denial of certiorari). 26 ‘duty to see that discrimination does not take place in the selection of [their] workforce,’ regardless of where the discrimination originates.” 458 U.S. at 392.'9 This Court reversed, holding that Section 1981 is violated only by “purposeful discrimination,” i.e., by “racially motivated” actions or “blatant deprivations of civil rights, clearly fashioned with the purpose of oppressifon].” 458 U.S. at 388, 391. The employers were held to have no affirmative obligation to protect those against whom the union discriminated, since they were not “the guarantors of workers’ rights as against third parties who would infringe them” (id. at 396); intentional discrimination of the kind required under Section 1981 could not be proved by showing that the employers had “failed to ensure” nondiscriminatory employment oppor- tunities (id. at 397). This Court has since reaffirmed that “fujnder [Section 1981] relief is authorized only when there is proof or admission of intentional discrimination.” Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n.16 (1984) (citing General Building Contractors). In this case the plaintiffs apparently contend that the “intent” requirement of Section 1981 was satisfied by the finding that the unions had intentionally decided not to grieve certain complaints, or to grieve them in certain ways. See Pet. App. 26a. But not every volitional act will provide the requisite intent. For liability to be found, the unions must be shown to have made decisions from racial mwtives, and no such proof exists here. See Personnel Ad- ministrator v. Feeney, 442 U.S. at 279.?° Just as employers 'y No Title VII claim was brought against the employers. 458 U.S. at 380. 20 Whether the union knew the employer was discriminating mat- ters only insofar as it bears on the factual determination of whether the union intended its action to be discriminatory (see Feeney, 442 U.S. at 279 n.25); because in this case there was no finding of the lat- ter, the presence of the former is at this point legally irrelevant. Here, 27 are not, under Section 1981, the third party guarantors against union discrimination, so unions should not be guarantors against employers’ Section 1981 discriminaton. If the fundamental divergence of interests between union and employer precludes an assumption that the latter is liable for the former’s discrimination, no agency relation can be presumed to run the other way either. See 458 U.S. at 391-395; id. at 403-404 (O’Connor, J., concurring). Hence the unions here had no duty under Section 1981 to take affirmative steps to end Lukens’ discrimination, and their decisions not to file grievances against the employer in some situations cannot have been a breach of duty. conversely, both courts below seemed to think it irrelevant whether or not the unions were “favorably disposed toward minorities” (Pet. App. 25a, 140a). 28 CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be reversed. Respectfully submitted. FEBRUARY 1987 CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General MICHAEL CARVIN Deputy Assistant Attorney General ROGER CLEGG Assistant to the Solicitor General DAVID K. FLYNN ROBERT J, DELAHUNTY Attorneys US GOVERNMENT PRINTING OFFICE 1987— 181 483 40207 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0105%3A11. Public record. Not legal advice.