Amicus Curiae Brief — Johnson v. Transportation Agency, Santa Clara Cty.

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an No. 85-1129 J

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

PAUL E. JOHNSON,

+, Petitioner,

TRANSPORTATION AGENCY, SANTA CLARA COUNTY,

CALIFORNIA, AND SERVICE EMPLOYEES INTERNATIONAL

UNION, LOCAL 715,

Respondents.

On A Writ of Certiorari To The United States Court

of Appeals For The Ninth Circuit

MOTION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

IN SUPPORT OF THE RESPONDENTS

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

$15 16th Street, N.W.

Washington, D.C. 20006

(202/637-5390)

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

® GS «0

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1129

PAUL E. JOHNSON,

+ Petitioner,

TRANSPORTATION AGENCY, SANTA CLARA COUNTY,

CALIFORNIA, AND SERVICE EMPLOYEES INTERNATIONAL

UNION, LOCAL 715,

Respondents.

On A Writ of Certiorari To The United States Court

of Appeals For The Ninth Circuit

MOTION BY THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

The American Federation vf Labor and Congress of

Industrial Organizations (“AFL-CIO”) moves for leave

to file the attached brief amicus curiae in support of

the Respondents. In support of this motion the AFL-

CIO states as follows:

1. The AFL-CIO is a federation of 93 national and

international unions representing over 13,000,000 work-

ing men and women. The AFL-CIO’s policy position on

affirmative action plans, declared most recently by its

Sixteenth Constitutional Convention, is that such plans

are “necessary ... to ensure that minorities and women

take their rightful places in our economic system and to

achieve equality and harmony among the races.”

2. The sole issue in this ease is whether Respondent

Santa Clara County violated Title VII of the Civil Rights

Act of 1964, 42 N.S.C. § 2000e et seg., by adopting and

implementing a voluntary affirmative action plan. This

Court has addressed a like question on only one occasion,

in Steelworkers v. Weber, 448 U.S. 198 (1979). The

AFL-CIO filed a joint brief in Weber with the United

Steelworkers of America defending the lawfulness of the

affirmative action plan that was at issue in that case.

3. The AFL-CIO has a somewhat different under-

standing of Weber than do the parties to this case. As

explained in the attached brief, we believe that Weber

teaches that an employer may engage in affirmative

action without violating Title VII so long as the em-

ployer is acting to redress a historic imbalance in the

employer’s workforce, and without regard to the proof

of the causes or possible causes of that imbalance. We

seek to file the attached brief in order to present to the

Court the basis for that reading of Title VII and of

Weber.

4. Petitioner and the Respondents have consented

orally to the filing of the attached brief. The timing of

the filing, however, necessitates this motion, as ex-

plained below.

(a) This brief is being submitted within the deadline

for the filing of the brief of the Respondent Service Em-

ployees International Union, Local 715 (“SEIU Local

715”), and four days after the deadline for the filing of

the brief of the Respondent Transportation Agency,

Santa Clara County, California (the “County”). The

Clerk’s office has informed us that because the deadline

for the brief of one of the Respondents has passed and

because the deadline of the other Respondent was ex-

tended only because that Respondent, through a mis-

understanding, was not originally served with a copy of

the brief for the United States, the filing of an amicus

ee re

a

curiae brief after the first deadline would not be con-

sidered timely under Rule 36.2, even though the brief is

being filed “within the time allowed for the filing of the

brief of [one of] the part[ies] supported.”

(b) In deference to the Court, it is the AFL-CIO

practice, in cases like the instant one in which a union

affiliated with the AFL-CIO is a party, to consult closely

with the affiliate with tespect to the case, and to file a

separate amicus curiae brief only if we find that we have

something to add to what is contained in the union-

party’s brief. Given our practice of close consultation

with counsel for the union-party in a case, we were, of

course, put at the same disadvantage in completing our

brief in this proceeding as SEIU Local 715. Until that

Union determined its position, we could not determine

whether or not it would be appropriate to prepare and

file an AFL-CIO amicus curiae brief.

(c) It is our understanding that oral argument in this

case will not be heard until November or December,

1986. Permitting the filing of this amicus curiae brief

thus will not prejudice any of the parties to this case

nor delay the Court’s consideration of the matter. And

because of the different approach we take, our presenta-

tion may be of assistance to the Court in considering

the vital issue raised here.

WHEREFORE, the AFL-CIO requests that leave be

granted to file the attached brief amicus curiae.

Respectfully submitted,

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202/637-5390)

TABLE OF CONTENTS

SUMMARY OF ARGUMENT

EE cca ahs tinal-sclaebielnbnidaeiacinictain

I. THE ENDS OF THE AFFIRMATIVE ACTION

Be ecteitastiieasiaiapinba ecilceapypiseataniniacnhcuiivgiauondisnanatinn

II. THE MEANS USED TO ACHIEVE AFFIRMA-

ee I iciccriieh aipiceldaisicaina i ccinnnitcipins aceon

A. The “Trammeling” Issue

B. The “Temporariness” Issue

Ce I iiceiice taba bea iahcnnsstossistiisstobnisnera niall

20

27

ii

TABLE OF AUTHORITIES

CASES: Page

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

FERRE A irae SAT Sa en 18, 26

Bishop v. Wood, 426 os TE = ERRRanane ESL 21

County of Washington v. Gunther, 452 U.S. 161,

ih a 4

Dothard v. Rawlinson, 433 US. >...) ae 4

Evans v. United Air Lines, 431 U.S. 533 (1977)... 18

Firefighters v. Cleveland, —— U.S. ——, 54 L.W.

gg RI re eee mone 4,9,14

Fullilove v. Klutznick, 448 U.S. 448 (1980) ....12, 24, 26, 27

Hazelwood School District v. United States, 433

a a

Mississippi University for Women v. Hogan, 458

SSR WR a eI On Nea 5

NLRB v. Catholic Bishop, 440 U.S. 490 (1979) . 5

Sheet Metal Workers v. EEOC, —— U.S. ——, 54

L.W. 4984 (July 2, 1986) .................. lls 16, 20, 23, 24

Steelworkers v. Weber, 443 U.S. 193 (1979) _....... passim

University of California Regents v. Bakke, 438

_ “RRR Saeco oe fs 5, 12, 21

Walsh v. Schlecht, 429 U.S. 401 (1977) 28

Weber v. Kaiser Aluminum & Chemical Corp., 563

F.2d 216 (5th Cir. 1977), rev’d, 443 U.S. 193 7,8

Wygant v. Jackson Board of Education, U.S.

, 54 L.W. 4479 (May 19, 1986)... passim

STATUTES:

Equal Employment Opportunity Act of 1972, P.L.

i cbsanenin siseisoenaimieiin 3

Title VII, Civil Rights Act of 1964

§ 701b, 42 U.S.C. § 2000e-(b) 0. 3

§ 703, 42 U.S.C. § 2000e... . passim

§ 703 (j), 42 U.S.C. § 2000e-2(j) 9

§ 706(g), 42 U.S.C. § 2000e-5 (gz) 13

42 U.S.C. § 1988 ....................... a 5

LEGISLATIVE MATERIALS:

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963) i)

Legislative History of the Equal Employment Op-

portunity Act of 1972 ........... 4

S. Rep. 92-415, 92nd Cong., Ist Sess. (1971) 4

110 Cong. Rec.

BRIEF AMICUS CURIAE FOR THE AMERICAN

FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS IN SUPPORT

OF THE RESPONDENTS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”) submits this brief

amicus curiae contingent upon the granting of the fore-

going motion for leave to file the brief. The interest of

the amicus curiae is stated in the motion.

SUMMARY OF ARGUMENT

Two fundamental questions are posed in this case:

first, has a sufficient predicate been shown to enable

Respondent Santa Clara County (the “County”) to en-

gage in some form of affirmative action without violat-

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

§ 2000e et seg.; and, if so, second, whether the particu-

lar means the County has adopted toward that end are

consistent with Title VII.

In Part I we show that under Steelworkers v. Weber,

443 U.S. 193 (1978)—-which, we demonstrate, is the

controlling authority here—an employer may engage in

at least some forms of affirmative actior to redress a

long-standing and conspicuous imbalance in the em-

ployer’s workforce, without regard to the causes or pos-

sible causes of that imbalance. We further show that

Weber squarely refutes the argument of Petitioner and

the Solicitor General that a “history of past discrimina-

tion in which the employer has participated,” Br. for the

U.S. at 10, is a necessary prerequisite to lawful affirma-

tive action under Title VII. And Weber equally clearly

rejects Santa Clara County’s theory that proof of an

arguable violation of Title VII is a necessary prerequisite.

In Part Il we show that the means chosen by the

County to implement its affirmative action plan are law-

ful under Title VII. The County’s affirmative action plan

does not “unnecessarily trammel the interests of [non-

minority] employees.” Weber, 443 U.S. at 208. As in

Weber, the County’s plan “does not require the discharge

2

for layoff] of [nonminority] workers,” and does not

“create an absolute bar to the advancement of white em-

ployees.” Jd. Indeed, the instant case is a far easier one

than Weber in this regard for two reasons: first, the

County uses gender only as a “plus” factor in making

employment decisions and does not bar nonminorities

from competing for any available opening; and second,

the County’s affirmative action plan does not disrupt

any settled employment expectations.

The County’s affirmative action plan likewise satisfies

Weber’s requirement that affirmative action may be pur-

sued only as a “temporary measure.” 443 U.S. at 208.

The County’s plan is temporary in precisely the same

way as was the plan at issue in Weber: neither contains

an express terminal date but each is impliedly limited

to achieving-—and not maintaining—racial/gender bal-

ance. Any doubt on this score should be resolved (as

it was in Weber) by construing the plan to render it

lawful rather than unlawful.

ARGUMENT

I. THE ENDS OF THE AFFIRMATIVE ACTION PLAN

A review of the developing jurisprudence on the legal-

ity of affirmative action plans indicates that in a case

challenging such a plan, it facilitates analysis to ask first

whether a sufficient predicate has been shown to justify

some form of affirmative action and, if so, to inquire sec-

ond whether the particular form of affirmative action at

issue is lawful. We therefore proceed in that manner

treating with the first question in this Part of the

Argument and the second question in Part II infra.

Petitioner’s complaint in this case pleads a claim under

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

$ 2000e et seq., J.A. 7, and, thus, as Petitioner states in

his brief, “Petitioner only seeks relief under Title VII,”

Pet. Br. at 19. Accordingly, the threshold question here

is when an empleyer (and a union) may, without run-

ning afoul of that statute, engage in voluntary affirma-

tive action.

3

This Court has addressed that issue on only one oc-

casion, in Steelworkers v. Weber, 443 U.S. 193 (1979),

a case involving a private employer. In seeking the is-

suance of a writ of certiorari in this case, Petitioner

—like the lower courts—treated Weber as the control-

ling precedent. See Pet. for Cert. at 9-10 (Weber “set

forth the standard for voluntary affirmative action

plans”). But in his brief on the merits, Petitioner—sup-

ported by the Solicitor General—argues that different

“constraints may apply to a public employer’s voluntary

affirmative action plan under Title VII.” Pet. Br. at 20

(emphasis added). In particular, Petitioner argues that

“the strict scrutiny standard [of the Equal Protection

Clause] must also be applied under Title VII to sex-based

discrimination by a public employer under a voluntary

affirmative action [plan].” Jd. at 23. As we proceed to

show, Petitioner is mistaken.

A.(1) Title VII contains a unitary set of prohibi-

tions, set forth in § 703 of that Act, 42 U.S.C. § 2000e-2,

which applies to all “employers,” as that term is defined

in § 701(b), 42 U.S.C. § 2000e-(b). At the time those

prohibitions were enacted in 1964, public employers were

expressly excluded from the definition of “employer.”

The prohibitions stated in § 703 thus were “enacted pur-

suant to the commerce power to regulate purely private

decisionmaking [and] wl[ere] not intended to incorporate

and particularize the commands of the Fifth and Four-

teenth Amendments.” Weber, 443 U.S. at 206 n.6 (em-

phasis added).

The exclusion of public employers from Title VII’s

coverage was repealed in the Equal Employment Oppor-

tunity Act of 1972, P.L. 92-261, but Congress did not at

that time amend § 703 in any respect. It would be sur-

prising, indeed, if the 1972 Congress’ purpose in amend-

ing the definitional provision of Title VII was to create,

sub silentio, new and unique substantive rules te govern

the duties of the public employers thereby brought under

the Act. And as thir “art has concluded, Congress had

no such hidden age. .; the legislative materials show

4

that “Congress expressly indicated the intent that the

same Title VII principles be applied to governmental and

private employers alike.” Dothard v. Rawlinson, 433

U.S. 321, 332 n.14 (1977). See also Firefighters v. Cleve-

land, U.S. ——, 54 L.W. 5005, 5010 n.10 (July 2,

1986) 2

(2) The Solicitor General argues that any “constitu-

tional limitations’ on affirmative action by public em-

ployers must be read into § 703 to “avoid[] an interpre-

tation of Title VII which would render it pre tanto un-

constitutional” and would “ ‘authorize’ unconstitutional

behavior.” Br. for the U.S. at 6, 10 n.5. Those constitu-

tional limitations, as Weber makes clear, do not apply

to private employers who voluntarily adopt, or agree in

collective bargaining, to affirmative action plans since

such actions are not “state action.” See 443 U.S. at 200.

The Solicitor General’s argument is wrong because this

case concerns the reach of § 703, and that section “can

hardly be said to ‘authorize’ anything at all: it is purely

prohibitory.” County of Washington v. Gunther, 452

U.S. 161, i69 (1981). Thus, a holding that § 703 does

not condemn all affirmative action that the Constitution

proscribes would not “render Title VII pro tanto un-

constitutional,” any more than the 1964 Act was ren-

1In reporting the bill that became the 1972 Act, the Senate

Committee on Labor and Public Welfare stated: “The Committee

believes that the employees of State and local governments are en-

titled to the same benefits and protections in employment as the em-

ployees in the private sector of the economy.” S. Rep. 92-415,

92nd Cong., 1st Sess. 9 (1971) (emphasis added), reprinted in

Legislative History of the Equal Employment Opportunity Act of

1972) (“Leg. Hist.”). Senator Williams, the chief sponsor of the

bill, repeated this explanation during the Senate debates. See Leg.

Hist. at 1118.

The Senate amended the Labor Committee’s bill in other respects

but accepted that Committee’s proposal to extend the Act to public

employers. See Leg. Hist. 1102-76, 1789-90. The bill adopted by

the House contained no comparable provision. See id. 326-32. In

Conference the House receded. See id. 1813 (joint explanatory

statement of the Conference Managers.)

5

dered unconstitutional because that Act did not proscribe

any act of public-sector discrimination. Rather, such a

holding would mean simply that in enacting Title VII,

Congress did not create an additional statutory remedy

for all of the conduct that is remediable under the Con-

stitution (and under 42 U.S.C. § 1983).

Because that is so, Petitioner’s and the Solicitor Gen-

eral’s reliance on NLRB v. Catholic Bishop, 440 U.S. 490

(1979), see Br. for Pet. at 21; Br. for the U.S. at 10

n.5, is misplaced. Catholic Bishop wisely counsels that

“there must be present the affirmative intent of Congress

clearly expressed,” before the Court will conclude that Con-

gress intended to enact a law that “would give rise to

serious constitutional questions.” 440 U.S. at 501. That

sound rule of construction—and of judicial restraint—

simply has no application here as no constitutional ques-

tion is implicated by the determination of the extent of

the Title VII cause of action against affirmative action

plans.’

2 Of course, if the Solicitor General were correct—if “any con-

stitutional limitations on [affirmative action] carry over to Title

VII,” Br. for U.S. at 6—it would then be necessary to determine

the circumstances under which gender-conscious, as distinguished

from race-conscious, affirmative action is permitted.

This Court has not yet confronted that question. And it is not

at all clear that the limitations on affirmative action that the Court

has developed with respect to race-conscious measures—limitations

that reflect at least a plurality’s view that any form of racial classi-

fication must satisfy the “compelling interest” standard, see Wygant

v. Jackson Board of Education, —— U.S. , 54 L.W. 4479, 4481

(May 19, 1986) (plurality opinion); id. at 4484 (O’Connor, J.,

concurring); see also id. at 4487 (White, J., concurring)-—are

equally applicable to the gender area, in which the Court has not

heretofore applied a compelling interest test, see, e.g., Mississippi

University for Women v. Hogan, 458 U.S. 718, 724 (1982). See

also University of California Regents v. Bakke, 438 U.S. 265, 302-

03 (Powell, J.) (“Gender-based distinctions are less likely to create

the analytical and practical problems present in preferential pro-

grams premised on racial or ethnic criteria’’).

The Solicitor General argues that “the strictest level of scrutiny”

is applicable here because “Congress decided in Title VII to extend

the same protection from discrimination based on race to discrimi-

6

In sum, there is no basis for interpreting Title VII

to impose different prohibitions on public employers than

on private employers. Nor is there any basis for conclud-

ing that Title VII’s unitary set of prohibitions necessarily

go as far as the Fourteenth Amendment’s prohibitions.

Thus, Petitioner’s original position in this case is the

correct one: Weber “set[s] forth the standard for volun-

tary affirmative action” that is controlling here. We

therefore turn to a review of the Weber decision.

In so doing, we find ourselves in disagreement not

only with the Petitioner and the Solicitor General, but

with the Respondent Santa Clara County as well. Peti-

tioner seemingly understands Weber to hold that affirma-

tive action is lawful under Title VII only if designed to

remedy “past discrimination” by the employer. Pet. Br.

at 43. The Solicitor General views Weber as “pointing

in two directions” and relies on other cases—none of

which involves voluntary affirmative action under Title

VII—to “resolve this ambiguity” in favor of the inter-

pretation pressed by Petitioner. Br. for U.S. at 13. And

Respondent Santa Clara County also finds Weber in-

determinate as to “the showing required by an employer

to justify affirmative action,” Br. for Resp. Santa Clara

at 13, and the County also turns to other cases, prin-

cipally Wygant, supra, for guidance.

In our view, however, it could not be clearer that, as

a matter of statutory interpretation, Weber states a set

of rules that grants employers a wider leeway in fram-

ing and applying affirmative action plans than the rules

nation based on sex.” Br. for U.S. at 10 n.5. Thus the premise of

the Solicitor General’s attempt to read constitutional limitations

into Title VII is that Congress’ will must be bent in order to avoid

supposed constitutional difficulties. And given that justification,

there sureiy is no basis for extending the prohibitions of Title VII

beyond the point where those prohibitions otherwise would reach

unless the Constitution so requires.

Thus, if the theory of statutory construction that the Solicitor

General urges here were accepted, there would be no avoiding the

separate and unsettled constitutional issue posed by gender-based

affirmative action.

PI

7

the Court developed in Wygant for assessing the consti-

tutionality of race-based affirmative action plans. To

demonstrate that point requires a detailed discussion of

both the facts and the reasoning of Weber.

B. Weber involved an affirmative action plan that was

established by virtue of a national collective bargaining

agreement between Kaiser Aluminum & Chemical Corp.

(“Kaiser”) and the United Steelworkers of America

covering Kaiser’s fifteen plants that were organized by

that Union. Under that collective agreement, it was the

goal at each plant to achieve “minority” representation

(as that word is defined by the EEOC) in craft jobs

equal to the percentage of minorities in the labor pool

from which the plant hired its employees. To achieve

that goal, the agreement obligated Kaiser to create an

apprenticeship program to train its production workers

to become craftsmen, and to fill those apprenticeships

on a seniority basis with the proviso that “not less than

one minority employee will enter [the apprenticeship pro-

gram] for every non-minority employee entering until

the goal is reached.” Weber v. Kaiser Aluminum & Chem-

ical Corp., 563 F.2d 216, 222 (5th Cir. 1977) (quoting

collective agreement). 7

The Weber case arose out of the implementation of

this national agreement at Kaiser’s Gramercy, Louisiana

plant. Prior to implementation, craft vacancies at Gra-

mercy had been filled by hiring already-trained crafts-

men (with five years’ experience in an industrial set-

ting) off the street; the record in Weber indicated that

Kaiser had followed that hiring policy because training

a production worker to become a skilled craftsman would

have cost approximately $15,000 to $20,000 per trainee.

Joint Appendix in No. 78-432 at 67-68. “Because blacks

had long been excluded from craft unions, few were able

to present such credentials. As a consequence, prior to

1974 only 1.83% (5 of 273) of the skilled craftworkers

at the Gramercy plant were black, even though the work-

force in the Gramercy area was approximately 39%

black.” Weber, 443 U.S. at 198.

8

When Kaiser implemented the national agreement at

the Gramercy plant, the necessary consequence was that

some more senior nonminority applicants for the ap-

prenticeship program were denied entry in favor of less

senior minority applicants. Brian Weber, an unsuccessful

white male applicant, brought suit alleging that the af-

firmative action plan constituted discrimination on the

basis of race in violation of Title VII. Weber prevailed

in the lower courts but not in this Court.

In finding a Title VII violation the Fifth Circuit rea-

soned that the fact that Kaiser employed four black craft

workers “reflects the general lack of skills among avail-

able blacks but does not reflect any unlawful practice by

Kaiser,” and that, “in the absence of prior discrimina-

tion” by Kaiser, its voluntary affirmative action plan

was unlawful. 563 F.2d at 224 & n.13. The Court of

Appeals rejected Kaiser’s claim that the Company was

permitted “to correct a lack of training blamed on past

societal discrimination,” stating “[i]t is appropriate to

draw the line for application of restorative justice at

the Gramercy plant, rather than at a larger universe of

. society at large.” Jd. at 225-26 (emphasis in orig-

inal).

This Court stated the resulting “question for decision”

as follows: “whether Congress in Title VII .. . left em-

ployers and unions . . . free to eliminate manifest racial

imbalance in traditionally segregated job categories.”

443 U.S. at 197. And the Court concluded for two prin-

cipal reasons that “Title VII does not prohibit such race-

conscious affirmative action plans.” Id.

The Court first determined that interpreting Title

VII to preclude affirmative action in such circumstances

“would bring about an end completely at variance with

the purpose of the statute.’” Jd. at 202. The point of

the Act, the Court explained, was to address “ ‘the plight

of the Negro in our economy,’” and to facilitate “the

integration of blacks into the mainstream of American

society” by “open[ing] employment opportunities for Ne-

9

groes in occupations which have been traditionally closed

to them.” Jd. at 202-203, quoting 110 Cong. Rec. 6548

(1964) (remarks of Sen. Humphrey). The Court con-

cluded that given those aims

[i]t would be ironic indeed if a law triggered by a

‘Nation’s concern over centuries of racial injustice

and intended to improve the lot of those who had

“been excluded from the American dream for so

long,” i:10 Cong. Rec. 6552 (1964) (remarks of Sen.

Humphrey), constituted the first prohibition of all

voluntary, private, race-conscious efforts to abolish

traditional patterns of racial segregation and hier-

archy. [Jd. at 204.]

The Court tuttressed this conclusion with a second line

of reasoning. One of the principies that animates Title

VII, said the Court, is that “ ‘management prerogatives,

and union freedoms . . . be left undisturbed to the great-

est extent possible.’”’ Jd. at 206, quoting H.R. Rep. No.

914, 88th Cong., Ist Sess., pt.2, p.29 (1963). Indeed,

it was necessary for the authors of Title VII to adhere

to that principle in order to attract the support of tradi-

tional conservatives, whose “support was crucial” to over-

come the filibuster by Southern Democrats and to secure

“passage of the bill.” Firefighters, supra, 54 L.W. at

5010. Thus,

[t]he conclusion in Weber that “Congress chose not

to forbid all voluntary race-conscious affirmative ac-

tion” when it enacted Title VII was largely based

upon the legislative history which shows that Con-

gress was particularly concerned to avoid undue fed-

eral interference with managerial discretion.

As one commentator points out, rather than seeking

to outlaw voluntary affirmative action, the more

conservative proponents of Title VII who held the

balance of power, “were far more concerned to avoid

the intrusion into business autonomy that a rigid

color-blind standard would entail.” [Jd.] *

3In this regard, the Weber Court attached considerable signifi-

cance to the wording of § 703(j) which provides that nothing in

Title VII “shall be interpreted to require any employer .. . to

10

The Weber Court declined to “define in detail the line

of demarcation between permissible and impermissible

affirmative action plans” under Title VII, as the Court

concluded that the Kaiser plan unmistakably “falls on

the permissible side of the line.” 443 U.S. at 208. In

this regard, the Court noted:

The purposes of the plan mirror those of the statute.

Both were designed to break down old patterns of

racial segregation and hierarchy. Both were struc-

tured to “open employment opportunities for Ne-

groes in occupations which have been traditionally

closed to them.” [Jd.] *

grant preferential treatment ... to any group... on account of an

imbalance which may exist” in the employer’s workforce, 42 U.S.C.

§ 2000e-2(j). Weber notes that opponents of Title VII had attacked

the legislation on the ground that the bill would require or would

permit actions to redress imbalance, yet “Congress added § 703(j)

which addresses only the first objection.” 443 U.S. at 205. The

Court also emphasized Representative MacGregor’s remarks shortly

before the final vote on Title VII:

Important as the scope and extent of this bill is, it is also

vitally important that all Americans understand what this bill

does not cover. .. . People complain about racia! “balancing” in

the public schools . . . about preferential treatment or quotas in

employment. When we drafted this bill we excluded these

issues largely because the problems raised by these issues are

more properly handled at a governmental level closer to the

American people and by communities and individuals them-

selves. [443 U.S. at 207-08 n.7 quoting 110 Cong. Rec. 15893

(1964) .]

Representative MacGregor was not the only legislator to analogize

the quota issue to the racial balancing in schools issue, see, e.g.,

110 Cong. Rec. 7789 (Sen. Scott), 9881 (Sen. Allott), 10009 (Sen.

Bayh), 14313-14 (Sen. Miller); an issue on which Congress in-

disputably chose not to legislate, see, e.g., id. at 1518 (Rep. Celler),

5266 (Sen. Keating), 6820 (Sen. Douglas), 6841 (Sen. Cooper.

Nor is the MacGregor statement the only one affirming that the

quota issue fell outside the ambit of the bill. See, e.g., id. 6565-66

(statement of House Republican sponsors) (Title VII does not “re-

quire, reward or encourage the imposition of racial quotas or

preferences” and “does not permit the ordering of racial quotas.’’).

4The Court also noted that the Kaiser plan “does not unneces-

sarily trammel the interests of the white employees” and “is a

11

~ And the Court in Weber stated its ultimate conclusion as

follows:

We conclude, therefore, that the adoption of the

Kaiser- [Steelworkers] plan for the Gramercy plant

falls within the area of discretion left by Title VII

. . . to adopt affirmative action plans designed to

eliminate conspicuous racial imbalance in tradition-

ally segregated job categories. [/d. at 209]

In two final footnotes, the Court made reference to the

argument advanced by Kaiser and by the United States

that the “plan was justified because [Kaiser] feared that

black employees would bring suit if [Kaiser] did not

adopt an affirmative action plan.” Jd. at 209, n. 9. The

Court stated that its opinion should “not [be read] to

suggest that the freedom of an employer to undertake

race-conscious affirmative action efforts depends on

whether or not his effort is motivated by fear of liability

under Title VII.” Jd. at 208, n. 8. Rather, the Court

reserved decision on whether such “fear of liability”

would provide a narrower alternative justification for

engaging in affirmative action. See id. at 209, n.9.

In a concurring opinion, Justice Blackmun under-

scored the Court’s refusal te adopt the “fear of liability”

theory. Justice Blackmun stated that his “preference

would be to resolve this litigation by applying” the

“arguable violation’ theory” under which “employers

and unions who had committed ‘arguable violations’ of

Title VII [w]lould be free to make reasonable responses

without fear of liability.” 443 U.S. at 211 (Blackmun,

J., concurring). Justice Blackmun noted that “[t]jhe

Court . . . declines to consider the narrow ‘arguable vio-

lation’ approach and adheres instead to an interpreta-

tion of Title VII that permits affirmative action by an

employer whenever the job category in question is ‘tradi-

tionally segregated’” because of “a societal history of

purposeful exclusion of blacks from the job category.”

temporary measure.” 443 U.S. at 208. We address the significance

of these observations for this case in Part II, infra.

12

Id. at 212 (Blackmun, J., concurring). The Court’s in-

terpretation of the statute, Justice Blackmun observed,

“sweep[s] far more broadly than the class of arguable

violations” in several respects:

For example, Title VII provides no remedy for pre-

Act discrimination, yet the purposeful discrimination

that creates a “traditionally segregated job category”

may have entirely predated the Act. More subtly, in

assessing a prima facie case of Title VII liability, the

composition of the employer’s work force is com-

pared to the composition of the pool of workers who

meet valid job qualifications. When a ‘job category’

is traditionally segregated, however, that pool will

reflect the effects of segregation, and the Court’s ap-

proach goes further and permits a comparison with

the composition of the labor force as a whole...

(Id. at 212-13.]

Justice Blackmun ultimately joined the Court, reasoning

that “where Title VII provides no remedy for blacks, it

should not be construed to foreclose private affirmative

action from supplying relief.” Id. at 214.

C. Weber teaches two basic lessons as to the circum-

stances in which Title VII permits some form of affirma-

tive action.

(1) The first and clearest lesson is a negative one:

Title VII does not limit affirmative action to situations

where there is “a history of past discriminaticn in which

the employer has participated,” Br. for the US. at 15,

see also Pet. Br. at 48, or “evidence that would consti-

tute a prima facie showing of a Title VII violation,”

Resp. Santa Clara County Br. at 18.

(a) To begin with, the Court’s reasoning in Weber

does not turn on “a history of past discrimination” by

the defendant employer. Consistent with the view, ex-

pressed by many Members of this Court, that, “[i]n or-

der to get beyond racism we must first take account of

race.” * the Weber Court concluded, in essence, that a

5 Bakke, 438 U.S. at 407 (opinion of Blackmun, J.) ; see also, e.g.,

Fullilove v. Klutznick, 448 U.S. 448, 516 (1980) (Powell, J., concur-

13

program to train blacks to become craftsmen—training

which blacks were denied for so long—furthers the aims

of Title VII and is lawful without regard to whether the

particular employer who now provides the training was

responsible for that past denial. Indeed, the premise of

Weber—and the precise area of disagreement between

this Court and the Fifth Circuit, see pp. 7-12, supra—

is that the defendants in that case were not responsible

for the past exclusion of blacks from the crafts, yet

stil were free to adopt their affirmative action program

to ameliorate the continuing effect of that exclusion.

That premise reflects the record in Weber. As the Court

of Appeals there noted, “[t]he district court found and ap-

pellants [Kaiser and the Steelworkers] all but concede[]

that Kaiser has not been guilty of any discriminatory

hiring or promotion at its Gramercy plant.” 563 F.2d at

224. And as that court also observed, the paucity of

black craftsmen in the Gramercy area, and the resulting

small percentage of black craftsmen in the Kaiser plant,

“reflects the general lack of skills among available blacks

but does not reflect any unlawful practices by Kaiser.”

Id. at 224 n. 13. Given these findings, and given this

Court’s reasoning in Weber, that decision cannot be read

to require proof of past discrimination before an em-

ployer may embark on voluntary affirmative action.°®

ring) (‘In our quest to achieve a society free from racial classifica-

tion, we cannot ignore the claims of those who still suffer from the

effects of identifiable discrimination”); Wygant, 54 L.W. at 4494

(Stevens, J., dissenting).

®To be sure, “the rule governing relief ordered by a court in

a Title VII action” is that affirmative action is permitted only “to

correct prior discrimination by the employer.” Br. for U.S. at

15. But a court cannot order relief of any kind in a Title VII

action absent a finding of a violation of the Act; this general rule

of remediation is expressly codified in § 706(g), 42 U.S.C. § 2000e-

5(g) (“If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful employment .

practice charged in the complaint, the court may ...) Thus, if the

limitations on the courts were imposed on voluntary action as well,

14

(b) Nor can Weber fairly be read to hold that proof

of an arguable Title VII violation is necessary to en-

able an affirmative action plan to avoid condemnation un-

der Title VII as Respondent Santa Clara County seems

to believe. While Justice Blackmun, in his concurring

opinion in Weber, expressed a willingness to adopt that

theory, the Court in Weber declined to do so. P. 11-12,

supra. The Court instead sustained the Kaiser plan be-

cause that plan furthered the aims of the statute by

opening opportunities previously closed to women and

minorities, and not because the plan was a method of

safeguarding against potential Title VII liabilities.’

Furthermore, in Weber, any showing of an “argu-

able” or prima facie Title VII violation required proof

of a significant disproportion between the percentage of

black craftsmen in the Gramercy area and the percentage

of black craftsmen employed by Kaiser. As this Court

has explained, where “special qualifications are required

to fill particular jobs,” statistical evidence, to be proba-

tive, must be limited to “individuals who possess the

necessary qualifications.” Hazelwood School District v.

no such action would be permitted absent antecedent findings of )

wrongdoing. Not even the Solicitor General is prepared to go

that far.

For this and other reasons, an essential point of Weber and of

last Term’s decision in Firefighters is to underscore the difference,

for Title VII purposes, between compelled and voluntary affirmative

action. As the Court concluded in Firefighters:

[Whatever the extent of the limits § 706(g) places on the

power of the federal courts ,to compel employers and unions

to take certain actions that the employers or unions oppose

and would not otherwise take, § 706(g) does not restrict the

ability of employers or unions to enter into voluntary agree-

ments providing for race-conscious remedial action. [54 L.W.

at 5010.)

TIndeed an employer’s voluntary affirmative action plan is most

unlikely. to “resol[ve] charges of discrimination,” Br. for the

U.S. at 22, unless the program fortuitously reaches all of the actual

victims of the employer’s discrimination, and unless the employer

» also provides make-whole relief to those victims.

|

15

United States, 483 U.S. 299, 308 n.18 (1977). Yet no

such evidence was offered in Weber; indeed, as noted, it

was all but conceded that there were as few black crafts-

men in the Gramercy area as in the Kaiser plant. Thus,

the record in Weber plainly did not contain “a strong

basis in evidence” for believing that Kaiser was guilty

of past discrimination, Wygant, 54 L.W. at 4482 (plural-

ity opinion).

(c) We recognize, of course, that in light of the les-

sons we contend are compelled by Weber, there will be

circumstances, at least with respect to race-conscious

affirmative action, see n. 2, supra, in which Title VII

will not proscribe conduct which the Fourteenth Amend-

ment (as interpreted in Wygant) would condemn if en-

gaged in by a state actor. There is nothing anomalous

or unsettling about that conclusion.

In Wygont—as we understand the opinions in that

case—the Court determined “that a governmental agen-

cy’s interest in remedying ‘societal’ discrimination, that

is discrimination not traceable to its own actions, can-

not be deemed sufficiently compelling to pass constitu-

tional muster under strict scrutiny.” 54 L.W. at 4485

(O’Connor, J., concurring) ; see id. at 4481 (plurality

opinion) ; see ‘also id. at 4487 (White, J., concurring).

But the question whether an affirmative action plan is

supported by a “compelling interest” simply is not rele-

vant in determining whether that plan violates Title

VII; in the latter situation, the sole question for decision

is how far Congress intended the Act to reach. And

what Weber teaches is that in enacting rules initially

designed to govern only private employers and later ex-

tended to apply to public employers as well, Congress

was concerned with limiting the degree of federal intru-

sion into managerial decisions and did not go so far as

to outlaw every affirmative action program which, if

engaged in by a public employer on a race-conscious

basis, would fail the “compelling interest” test.*

* Of course, the Court has not yet determined whether redressing

societal discrimination is a sufficiently important governmental inter-

16

(2) There remains the task of identifying what is

required by way of justification for an affirmative action

plan to meet Title VII’s requirements. As to * is ques-

tion, Weber again is instructive.

In framing the “question for decision” in Weber, the

Court placed a limit on the scope of its inquiry by ask-

ing whether employers are “free to eliminate manifest

racial imbalance in traditionally segregated job cate-

gories.” 443 U.S. at 197 (emphasis added). Similarly,

in explaining why the Kaiser plan “falls on the permissible

side of the line,” the Court stressed that the plan was

“designed to break down old patterns of racial segrega-

tion and hierarchy.” Id. at 208 (emphasis added). And

in the final sentence of its opinion, the Court stated its

“eonclu[sion] as follows: the Kaiser plan “falls within

the discretion left by Title VII to adopt affirmative aci -»

plans designed to eliminate conspicuous racial imbalance

in traditionally segregated job categories.” Id. at 209

(emphasis added).

Plainly, then, Weber provides only that under Title

VII, affirmative action to redress “conspicuous imbal-

ance” that has “traditionally” existed is lawful. Title

VII, the Court was at pains to add, does “not allow estab-

lishment of systems ‘to maintain racial balance in em-

ployment.’” 443 U.S. at 207, n. 7 (emphasis added by

Court). See also Sheet Metal Workers, 54 L.W. at 4999

(plurality opinion) ; id. at 5001 (Powell, J., concurring) ;

id. at 5004 (O’Connor, J., dissenting). Thus, affirmative

action violates Title VII if designed merely to restore

a previously-achieved balance, to correct a short-term

est to satisfy the lesser burden of justification generally required for

gender-based classifications. See n.2, supra. Thus, it may well be

that the Constitution permits gender-based affirmative action to

remedy societal discrimination and that a decision in this case that

Title VII permits such affirmative action will be determinative of

whether the plan at issue here is lawful. In any event, the decision

here is important in that further elaboration of Weber will apply

to private employers as well who are not subject to constitutional

constraints. See 443 U.S. at 200.

17

imbalance, and a fortiori, where there is no imbalance

to redress.°

What is less clear from Weber is whether proof of a

“conspicuous” and “traditional” racial imbalance estab-

lishes a sufficient predicate to sustain some form of af-

firmative action under Title VII, or whether an addi-

tional showing is required. In Weber the Court traced

the imbalance in Kaiser’s craft workforce to what the

Court viewed as the purposeful discriminatory exclusion

of blacks from the crafts; the Court stated that “[j]udi-

cial findings of exclusion from crafts en racial grounds

are sO numerous as to make such exclusion a proper sub-

ject for judicial notice.” 443 U.S. at 198 n.1. Thus

Weber could be read to limit the freedom to engage in

affirmative action to instances in which the imbalance to

be remedied is not only traditional but also attributable

to identifiable actors who have committed identifiable

acts of discrimination.

Although the matter is not entirely free from doubt,

we submit that Weber should not be read to be so iim-

ited. The theory of that decision is that Congress left

an “area of discretion” for voluntary affirmative action

which is “designed to break down old patterns of racial

segregation and hierarchy” and which therefore “mir-

rors|s]” the purposes of Title VII. It is not necessary that

the particular culprits responsible for the “old pattern”

be identified before a plan that seeks to address that pat-

tern can be said to advance the statutory goals and thus

fall within that “area of discretion.” To the contrary,

a plan that furthers “the integration of blacks [or

women] into the mainstream of American society” by

redressing an “old pattern” of imbalance furthers the

nee Hibs

* The term “imbalance” must be understood in light of the facts

of Weber. Kaiser’s workforce was “imbalanced” in the sense that

in an area of the country which was almost 40% black, Kaiser em-

ployed few black craftsmen. But as previously noted, Kaiser's

craft workforce was not necessarily imbalanced in comparison to

the craft workforce in the Gramercy area. Weber thus does not

require imbalance in the latter sense as a precondition for affirma-

tive action.

18

purposes of the Act, whether or not the causes of the

present situation can be neatly identified.

Moreover, requiring that the past wrongdoers be iden-

tified as a prerequisite to validating affirmative action

under Title VII runs contrary to other important prin-

ciples that lie at the heart of the Act. Title VII imposes

responsibility for employment discrimination as of the

effective date of the Act or, as of the start of the limita-

tions period in a particular case, whichever is later.

A discriminatory act predating that date is “merely an

- unfortunate event in history which has no present legal

consequences.” Evans v. United Air Lines, 431 U.S. 553,

558 (1977). Thus, judges and lawyers are not required

by Title VII to delve into the past and attempt to allocate

responsibility for “ignominous page[s] in this country’s

history,” Albemarle Paper Co. v. Moody, 422 U.S. 405,

418 (1975); such questions (which in any event are not

easy to resolve through the litigation process) remain

the province of historians and sociologists, and not jurists.

Yet if Weber were read to require proof of past dis-

crimination by an identifiable actor before affirmative

action is deemed lawful, an employer wishing to eliminate

a long-standing imbalance in its workforce would first

have to trace the cause of that “traditional” imbalance

back to its origins and, if the employer’s affirmative ac-

tion plan were challenged, the employer then would have

to prove to the satisfaction of the court the historic guilt

of some third party or parties.

In sum, Weber is best read to hold that at least some

forms of affirmative action aimed at redressing a con-

spicuous and long-standing exclusion of blacks or women ~

from a particular job category are lawful under Title

VIL.

D. Measured against this test, there is no doubt that a

sufficient predicate has been established in the instant case

to permit some form of affirmative action by Respond-

ents Santa Clara County and the Union. The record

shows that as of 1973, when the County’s Transporta-

19

tion Agency first developed an affirmative action plan,

see J.A. 37, only 8% of the Agency’s employees were

female, id. 45, far short of the representation of women

in the area workforce (36.4%), id. Using categories de-

veloped by the EEOC for grouping jobs, id. 47, 49, 125-

26, the Agency did a workforce analysis which showed

that as of 1978 no women had yet succeeded in securing

a “skilled craft” job, and few women had secured tech-

nical or professional jobs, J.A. 49. Accordingly, the Agen-

cy’s affirmative action plan, to which the Union agreed,

see Br. of Resp. SEIU Local 715 at 27-28, provided that:

[A] priority objective of the Agency EEO Affirr>: .

tive Action Plan will be to provide women the mé.71-

mum possible opportunity to obtain equitable employ-

ment and career progression in the Agency’s pro-

fessional, technical and skilled job classifications

where women have not been traditionally employed

and where they are presently underrepresented.

[J.A. 34; emphasis added].

See also id. at 51. No more is required to establish a

proper predicate for some proper form of affirmative

action under Title VII.

II. THE MEANS USED TO ACHIEVE AFFIRMATIVE

ACTION

Title VII limits not only the ends which may be pur-

sued through affirmative action, but also the means chosen

to pursue such ends. Weber states two such limits: an

affirmative action plan must not “unnecessarily trammel

the interests of [nonminority] employees” and it must be

a “temporary measure.” 443 U.S. at 208.1° Petitioner,

Tt is not entirely clear whether “temporariness” is an inde-

pendent requirement for an affirmative action plan under Weber,

or whether the Court’s reference to the fact that the Kaiser plan

was “temporary” was simply another way of stating that Kaiser

was not seeking to maintain racial balance. If the latter is the

correct reading of Weber, then the application of the affirmative

action plan in this case to redress a gross imbalance would be

lawful without regard to Respondent Santa Clara County’s intent

on how the County would proceed once the imbalance was redressed.

20

supported by the Solicitor General, suggests that the

plan agreed to by the County’s Transportation Agency

and the Union runs afoul of both of these principles; as

we proceed to show, the supporting arguments advanced

cannot withstand analysis.

A. The “Trammeling” Issue

(1) In explaining its conclusion that the affirmative

action plan in Weber did not “unnecessarily trammel the

interests of the white employees,” the Court stated:

The plan does not require the discharge of white

workers and their replacement with new black hirees.

Nor does the plan create an absolute bar to the ad-

vancement of white employees; half of those trained

in the program will be white. [443 U.S. at 208].

Precisely the same is true here.

The affirmative action plan here does not compel the

discharge or layoff of any nonminority employee; indeed

the plan expressly recognizes that it will be “difficult to

attain the Agency’s employment goals,” because, inter alia,

the employee “turnover rate .. . is very low, greatly

limiting the opportunities available to hire minorities

[and] women ... in the job classifications where they

are most under represented.” J.A. 55-56 (emphasis

added). Nor does the plan “create an absolute bar to

the advancement of nonminority employees”; the plan

does not set aside any positions for minorities or females

and the plan expressly provides that any annual goals

that are established “should not be construed as ‘quotas’

that must be met” but rather are to “be seen as realistic

desired levels of achievement.” J.A. 64.

Indeed, in this regard, the instant case is a far easier

one than Weber. Kaiser’s affirmative action plan was far

more rigid and had a far greater adverse “ ‘effect .. .

upon innocent third parties,’” Sheet Metal Workers, 54

L.W. at 5001 (Powell, J., concurring), than does the

plan in the instant case. Under Kaiser’s plan, a quota

was established: nonminorities could not compete for

50% of all apprenticeship vacancies.‘ In contrast, the

21

affirmative action plan here, like the Harvard admis-

sions plan discussed in Bakke, provides that gender “may

be deemed a ‘plus’ in a particular applicant’s file, yet it

does not insulate the individual from comparison with

all other candidates for the available [vacancy].” 438

U.S. at 317 (opinion of Powell, J.). While gender, like

any other factor, may be determinative in a particular

case, that will occur only where, as was true here, man-

agement concludes that the alternative candidates for a

job are both competent and possess comparable quali-

fications.

There is a further, and related respect, in which the

affirmative action plan at issue here has a less pro-

nounced impact on nonminorities than the plan at issue

in Weber. Under the prevailing personnel practices, in

filling vacancies, management is free to choose which-

ever of the seven top-ranked applicants management de-

cides will best further the County Transportation

Agency’s mission. Accordingly, no employee has any en-

titlement, or any expectation based upon law or contract,

to a particular opening. Cf., Bishop v. Wood, 426 U.S.

341 (1976). Thus, considering gender as a “plus” factor

in making employment decisions cannot “disrupt .. .

settled seniority expectations.” Wygant, 54 L.W. at 4483

(plurality opinion). In contrast, in Weber, the affirma-

tive action plan was superimposed upon a seniority-based

selection process, albeit with respect to a newly-created

apprenticeship program, and therefore the Kaiser plan

was more disruptive of security-based expectations.

(2) In arguing to the contrary, Petitioner and the

Solicitor General stress two points: the “burden” of the

affirmative action plan in this instance, it is said, is

focused on one individual, Petitioner Johnson, see Pet.

11 Petitioner here is wrong in suggesting that in Weber, non-

minorities were guaranteed 50% of all apprenticeships. See Pet.

Br. at 43. The Kaiser affirmative action plan provided that “not

less than” 50% of apprenticeships would go to minorities, and re-

quired the application of seniority principles except where neces-

sary to meet the 50% ratio.

22

Br. at 33-34, Br. for U.S. at 28-29; and, it is added, Pe-

titioner has been denied a promotion rather than an

entry-level job, see Pet. App. Br. 36; Br. for U.S. at

28-29. Neither point serves to distinguish Weber and

neither provides a sound basis in principle to overturn

the affirmative action plan in this case.

(a) Although management was legally free to select

any of the top seven applicants for the road dispatcher

job, it is reasonably clear that Petitioner and Diane

Joyce, the successful (female) applicant, were the two

finalists, and that the job would have gone to Petitioner

had it not gone to Ms. Joyce. But whenever an affirma-

tive action program is applied to a particular opening

that is being filled through a selection process that com-

pares the qualifications of applicants—be it an entry-

level position for which persons off-the-street have ap-

plied or an opportunity for advancement which incum-

bent employees are seeking—the selection of a black or

female pursuant to that program will necessarily dis-

advantage the identifiable nonminority applicant who

otherwise would have been selected. That was true in

Weber, itself; Brian Weber lost out on an apprenticeship

position to a black with less seniority than Weber. Yet

the Weber Court did not view that fact as one that in-

validated the affirmative action plan there.

Indeed, the only way to completely avoid disadvantag-

ing identifiable individuals in the pursuit of affirmative

action would be to create rigid quota systems in which

certain positions are reserved for blacks or women and

for which no others may apply. Such an approach

would, of course, assure that affirmative action has an

equal adverse effect on all nonminority applicants as a

group rather than an effect felt by one of those appli-

cants in particular. But it would be most ironic if the

rule against “unnecessarily trammeling the interests” of

nonminorities were to require employers who desire to

adopt an affirmative action plan to provide for a rigid

quota system thereby precluding the adoption of plans

AF ebat P ne asians nn sth

23

providing that race or gender is a “plus factor” in a

decision-making process in which nonminority applicants

are not foreclosed from consideration for any avai™ ble

position.

This is not to deny the relevance of the “diffuseness of

the burden impose[d] on innocent nonminorities,” Sheet

Metal Workers, 54 L.W. at 5002 n.3 (Powell, J., con-

curring), in assessing the lawfulness under Title VII of

a particular affirmative action plan. Our point is rather

that the “diffuseness” inquiry cannot end with a determi-

nation that in the end the affirmative action disadvan-

tages an identifiable individual, lest employers be pushed

into adopting needlessly rigid plans.

In this regard we note that what sets apart the plan

struck down in Wygant (on Fourteenth Amendment

grounds) from the plan at issue here is not that iden-

tifiable nonminorities were adversely affected but the na-

ture of that effect. Notwithstanding their seniority

rights, these nonminorities were subject to the indefinite

loss of their jobs. The Wygant plurality explained:

In cases involving valid hiring goals, the burden to

be borne by innocent individuals is diffused to a con-

siderable extent among society generally. Though

hiring goals may burden some innocent individuals,

they simply do not impose the same kind of injury

that layoffs impose. Denial of a future employment

opportunity is not as intrusive as loss of an existing

job [54 L.W. at 4484; emphasis added].

The Wygant plurality also noted that “ ‘the rights and

expectations surrounding seniority make up what is

probably the most valuable capital asset that the worker

“owns,”’” and therefore “(layoffs disrupt these settled

expectations in a way that general hiring goals do not.”

Id. (emphasis added). The plurality concluded:

While hiring goals impose a diffuse burden, often

foreclosing any one of several opportunities, layoffs

impose the entire burden of achieving racial equality

on particular individuals, often resulting in serious

24

disruption of their lives. That burden is too intru-

sive. [Jd.]

Thus in concluding in Wygant that the “burden” placed

on “particular individuals” by layoff quotas is “too in-

trusive,” the plurality placed great weight on the “kind

of injury that layoffs’—as distinguished from non-hiring

decisions—impose. And while we do not doubt that the

lesson taught by Wygant with regard to the type of

affirmative action plans that are permissible under the

Constitution applies as well to Title VII—Justice Powell's

opinion in Sheet Metal Workers makes that much clear

—that lesson is not implicated here for the reasons previ-

ously explained.

(b) The County Transportation Agency-Union affirm-

ative action plan likewise cannot be struck down here on

the ground that the injury Petitioner suffered related to a

promotional opportunity rather than an entry-level posi-

tion. That was equally true in Weber, as that case in-

volved apprenticeship positions which were to be filled

from among those already working for Kaiser.

Moreover, it would be anomalous in the extreme to hold

that an employer may engage in affirmative action in

order to fill entry-level positions—positions which are

typically the lowest paid, least desirable jobs in a work-

place—but that thereafter affirmative action must end.

Such a rule would fail to further one of Weber’s critical

aims: “to break down old patterns of racial segrega-

tion and hierarchy.” 443 U.S. at 208 (emphasis added).

And such a rule would delay, rather than hasten, the day

when “no [employment] decision will be-based upon im-

mutable characteristics.” Fullilove, 448 U.S. at 516

(Powell, J., concurring). Nothing recommends such a

rule and nothing in this Court’s precedents lends any

support to such a rule.

(3) Petitioner, again supported by the Solicitor Gen-

eral, advances a further, broader critique of the affirma-

tive action plan at issue here. Proceeding from the prem-

aaa

25

ise that a voluntary affirmative action plan is invalid

under Title VII if the plan is not, in a court’s view,

“narrowly tailored to achieve its remedial objectives

while at the same time intruding to the least extent

practicable upon the expectations and interests of in-

nocent third parties,” Br. for U.S. at 17, Petitioner and

the Solicitor General attack the plan here as overbroad

in various of its particulars. See Pet. Br. at 38-42; Br.

for U.S. at 25-26 & ns.14-17. This line of analysis is

doubly flawed.

First, the premise of the analysis is unsound. Weber

does not adopt any variant of the least-drastic-means

approach that Petitioner champions. Indeed, it is doubt-

ful that the Weber plan could have survived such an

analysis. Who is to say that the 50% quota involved in

Weber was necessary to “achieve its remedial objectives”?

Surely, a lower quota—with a lesser impact on non-

minorities—might in some sense have sufficed. Indeed,

Kaiser arguably did enough by creating an apprentice-

ship program in lieu of hiring only already-trained

craftsmen; if, as the lower courts in Weber had found,

Kaiser had never discriminated in hiring, Kaiser could

have filled its apprenticeships on a pure seniority basis

and still eventually train a significant number of black

craftsmen. Yet the Weber Court did not even discuss

whether an apprenticeship program filled by seniority

would have been “adequate” to achieve Kaiser’s aims.

The reason that Weber did not engage in such analysis

is plain from the opinion. The Weber Court relied in

substantial measure on Congress’ intent in enacting Title

VII that “ ‘management prerogatives, and union freedoms

.. . be left undisturbed to the greatest extent possible.’ ”

See p. 9 supra. The rule that an affirmative action

plan may not “unnecessarily trammel the interests” of

nonminorities states an outer limit to a broad managerial

discretion and is not intended to provide the basis for

close judicial oversight of all details of the plan. Peti-

tioner and the Solicitor General thus miss an essential

26

lesson of Weber. Cf. Fullilove, 448 U.S. at 508 (Powell,

J., concurring) (“this Court has not required remedial

plans to be limited to the least restrictive means of im-

plementation”’).

Second, even assuming arguendo the validity of the

type of analysis upon which Petitioner and the Solicitor

General embark, both misconstrue the affirmative action

plan at issue here. Reduced to its essentials, what that

plan does is: first, adopt a “long-range goal” of at-

tain{ing] a work force which includes in all occupational

fields and at all employment levels, minorities, women,

and handicapped persons in numbers consistent with the

ratio of these groups in the area work force,” J.A. 54,

31; second, provide for annual workforce analyses to

ascertain where the County Transportation Agency stands

in relation to the goal, see J.A. 61-64; and third, to the

extent the long-term goal has not been met, establish

“yearly employment goals for women, minorities and

handicapped persons in each EEOC job category and

major job classification” in which there is significant

underrepresentation. J.A. 64.

The long-term goal the plan adopts is identical to the

goal Kaiser adopted in Weber with respect to craft po-

sitions. The annual workforce review that is performed

to determine whether there has been progress toward

the goal is in keeping with the fundamental spirit of

Title VII which is intended to act as a “spur or cata-

lyst to cause ‘employers and unions to self-examine and

to self-evaluate their employment practices.” Weber, 443

U.S. at 204, quoting Albemarle Paper Co. v. Moody, su-

pra, 442 U.S. at 418. And finally, the adoption of annual

goals and the concomitant consideration of race or gender

as a “plus” factor where underrepresentation persists, is,

as we already have seen, a modest form of affirmative

action of the type Weber permits.

Thus, the attempts by Petitioner and the United States

to portray the affirmative action plan as heavyhanded

and excessive simply do not withstand analysis.

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27

B. The “Temporariness” Issue

(1) In Weber the collective bargaining agreement be-

tween Kaiser and the Steelworkers provided for continu-

ing affirmative action “until the goal [of proportional

representation] is reached.” P. 7 supra. The agree-

ment did not state what would happen after that point

or whether the goal would be deemed a continuing one,

authorizing affirmative action should minority repre-

sentation fall below “the goal.” * Nonetheless, given the

terms of the agreement, the Court assumed its temporari-

ness:

[T]he plan is a temporary measure; it is not in-

tended to maintain racial balance, but simply to

eliminate a manifest racial imbalance. Preferential

selection of craft trainees at the Gramercy plant will

end as soon as the percentage of black skilled crafts-

workers in the Gramercy plant approximates the per-

centage of blacks in the local labor force. [443 U.S.

at 208-09]

Cf., also, Fullilove, 448 U.S. at 518 (Powell, J., concur-

ring) (minority set-aside temporary because the author-

ization measure of which the set-aside was a part was

time-limited and thus “[i]t will be necessary for Con-

gress to reexamine the need for a race-conscious remedy

before it extends or reenacts (the set-aside] )”.

(2) The affirmative action plan in the instant case is

temporary in precisely the same way as was the plan at

issue in Weber. Although the plan here does not, in terms,

contain a terminal date, it is framed in terms of achiev-

ing certain goals rather than maintaining fixed percent-

ages. As the court below stated, “|i]mplicit in the plan

2 Kaiser’s industrial Relations Manager at Gramercy testified

that affirmative action would continue to assure that the goal

continued to be met, see J.A. 69 in No. 78-482, but he was not a

participant in the collective bargaining negotiations that had

produced the affirmative action program, id. 64-66, 83-84, and before

this Court the Steelworkers represented that it was that Union’s

understanding that the plan was temporary, Steelworkers Reply Br.

in No. 78-482 at 5 & n.4.

28

is the intent to stop taking sex into account once the

long-range percentage goals are attained.” 748 F.2d at

1318. And the absence of an express termination provi-

sion is not fatal for the validity of an affirmative action

plan should not “depend on technicalities in drafting.”

Id. at 1312.

The foregoing conclusion is buttressed by the general

rule of construction, developed in contract cases but

equally applicable here, that “ambiguously worded con-

tracts should not be interpreted to render them illegal

and unenforceable when the wording lends itself to a

logically acceptable construction that renders them legal

and enforceable.” Walsh v. Schlecht, 429 U.S. 401, 408

(1977). Absent something in the affirmative action plan

that precludes reading the plan as time-limited, such an

intent should be implied so that the lawfulness of the

plan is preserved.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202/637-5390)