UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC v. WEBER ET AL.
No. 78-432
Supreme Court of the United States
Argued March 28, 1979—Decided June 27, 1979
443 U.S. 193
*Together with No. 78-435, Kaiser Aluminum & Chemical Corp. v. Weber et al., and No. 78-436, United States et al. v. Weber et al., also on certiorari to the same court.
Michael H. Gottesman argued the cause for petitioner in No. 78-432. With him on the briefs were Robert M. Weinberg, Elliot Bredhoff, Bernard Kleiman, Carl Frankel, Jerome
Michael R. Fontham argued the cause and filed a brief for respondent Weber in all cases.†
†Briefs of amici curiae urging reversal in all cases were filed by Arthur Kinoy and Doris Peterson for the Affirmative Action Coordinating Center et al.; by E. Richard Larson, Burt Neuborne, and Frank Askin for the American Civil Liberties Union et al.; by Richard B. Sobol, Jerome Cohen, Harrison Combs, John Fillion, Winn Newman, Carole W. Wilson, David Rubin, John Tadlock, James E. Youngdahl, A. L. Zwerdling, and Janet Kohn for the American Federation of State, County and Municipal Employees, AFL-CIO, et al.; by Samuel Yee, Charles Stephen Ralston, and Bill Lann Lee for the Asian American Legal Defense and Education Fund et al.; by James F. Miller and Stephen V. Bomse for the California Fair Employment Practice Commission et al.; by Charles A. Bane, Thomas D. Barr, Norman Redlich, Robert A. Murphy, Richard T. Seymour, Norman J. Chachkin, and Richard S. Kohn for the Lawyers’ Committee for Civil Rights Under Law; by Nathaniel R. Jones for the National Association for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Eric Schnapper, Lowell Johnston, Barry L. Goldstein, Vernon E. Jordan, Jr., and Wiley A. Branton for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., et al.; by Herbert O. Reid and John W. Davis for the National Medical Association, Inc., et al.; by Robert Hermann and Evan A. Davis for the National Puerto Rican Coalition et al.; by Jerome Tauber for the National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO; and by Eileen M. Stein and Pat Eames for Patricia Schroeder et al. Sybille C. Fritzsche filed a brief for the Women‘s Caucus, District 31 of the United Steelworkers of America, as amicus curiae in No. 78-432 urging reversal.
Briefs of amici curiae urging affirmance in all cases were filed by J. D. Burdick and Ronald E. Yank for the California Correctional Officers Association; by Gerard C. Smetana for the Government Contract Employers Association; by Ronald A. Zumbrun and John H. Findley for the Pacific
Briefs of amici curiae in all cases were filed by Vilma S. Martinez, Morris J. Baller, and Joel G. Contreras for the American G. I. Forum et al.; by Philip B. Kurland, Larry M. Lavinsky, Arnold Forster, Harry J. Keaton, Meyer Eisenberg, Justin J. Finger, Jeffrey P. Sinensky, Richard A. Weisz, Themis N. Anastos, Dennis Rapps, and Julian E. Kulas for the Anti-Defamation League of B‘nai B‘rith et al.; by John W. Finley, Jr., Michael Blinick, Deyan R. Brashich, and Eugene V. Rostow for the Committee on Academic Nondiscrimination and Integrity; by Kenneth C. McGuiness, Robert E. Williams, and Douglas S. McDowell for the Equal Employment Advisory Council; by Mark B. Bigelow for the National Coordinating Committee for Trade Union Action and Democracy; by Philips B. Patton for the Pacific Civil Liberties League; by Frank J. Donner for the United Electrical, Radio and Machine Workers of America; by Paul D. Kamenar for the Washington Legal Foundation; and by Gloria R. Allred for the Women‘s Equal Rights Legal Defense and Education Fund. Burt Pines and Cecil W. Marr filed a brief for the city of Los Angeles as amicus curiae in No. 78-435.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Challenged here is the legality of an affirmative action plan—collectively bargained by an employer and a union—that reserves for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craftworkers in the plant is commensurate with the percentage of blacks in the local labor force. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended,
I
In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser)
This case arose from the operation of the plan at Kaiser‘s plant in Gramercy, La. Until 1974, Kaiser hired as craftworkers for that plant only persons who had had prior craft experience. Because blacks had long been excluded from craft unions,1 few were able to present such credentials. As a consequence, prior to 1974 only 1.83% (5 out of 273) of the skilled craftworkers at the Gramercy plant were black,
Pursuant to the national agreement Kaiser altered its craft-hiring practice in the Gramercy plant. Rather than hiring already trained outsiders, Kaiser established a training program to train its production workers to fill craft openings. Selection of craft trainees was made on the basis of seniority, with the proviso that at least 50% of the new trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plant approximated the percentage of blacks in the local labor force. See 415 F. Supp. 761, 764.
During 1974, the first year of the operation of the Kaiser-USWA affirmative action plan, 13 craft trainees were selected from Gramercy‘s production work force. Of these, seven were black and six white. The most senior black selected into the program had less seniority than several white production workers whose bids for admission were, rejected. Thereafter one of those white production workers, respondent Brian Weber (hereafter respondent), instituted this class action in the United States District Court for the Eastern District of Louisiana.
The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to the affirmative action program had resulted in junior black employees’ receiving training in preference to senior white employees, thus discriminating against respondent and other similarly situated white employees in violation of §§ 703 (a)2 and
II
We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment. Further, since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires or with what a court might order to remedy a past proved violation of the Act. The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan. That question was
Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent‘s argument rests upon a literal interpretation of §§ 703 (a) and (d) of the Act. Those sections make it unlawful to “discriminate . . . because of . . . race” in hiring and in the selection of apprentices for training programs. Since, the argument runs, McDonald v. Santa Fe Trail Transp. Co., supra, settled that Title VII forbids discrimination against whites as well as blacks, and since the Kaiser-USWA affirmative action plan operates to discriminate against white employees solely because they are white, it follows that the Kaiser-USWA plan violates Title VII.
Respondent‘s argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. In this context respondent‘s reliance upon a literal construction of §§ 703 (a) and (d) and upon McDonald is misplaced. See McDonald v. Santa Fe Trail Transp. Co., supra, at 281 n. 8. It is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 459 (1892). The prohibition against racial discrimination in §§ 703 (a) and (d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose. See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976); National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 620 (1967); United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940). Examination of those sources makes
Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with “the plight of the Negro in our economy.” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey). Before 1964, blacks were largely relegated to “unskilled and semi-skilled jobs.” Ibid. (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379-7380 (remarks of Sen. Kennedy). Because of automation the number of such jobs was rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark). As a consequence, “the relative position of the Negro worker [was] steadily worsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white rate; in 1962 it was 124 percent higher.” Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks of Sen. Clark). Congress considered this a serious social problem. As Senator Clark told the Senate:
“The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass.” Id., at 7220.
Congress feared that the goals of the Civil Rights Act—the integration of blacks into the mainstream of American society—could not be achieved unless this trend were reversed. And Congress recognized that that would not be possible
“What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where he can use that education?” Id., at 6547.
“Without a job, one cannot afford public convenience and accommodations. Income from employment may be necessary to further a man‘s education, or that of his children. If his children have no hope of getting a good job, what will motivate them to take advantage of educational opportunities?” Id., at 6552.
These remarks echoed President Kennedy‘s original message to Congress upon the introduction of the Civil Rights Act in 1963.
“There is little value in a Negro‘s obtaining the right to be admitted to hotels and restaurants if he has no cash in his pocket and no job.” 109 Cong. Rec. 11159.
Accordingly, it was clear to Congress that “[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey), and it was to this problem that Title VII‘s prohibition against racial discrimination in employment was primarily addressed.
It plainly appears from the House Report accompanying the Civil Rights Act that Congress did not intend wholly to prohibit private and voluntary affirmative action efforts as one method of solving this problem. The Report provides:
“No bill can or should lay claim to eliminating all of
the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963). (Emphasis supplied.)
Given this legislative history, we cannot agree with respondent that Congress intended to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words intended as a spur or catalyst to cause “employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country‘s history,” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges.4 It 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,” 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
Our conclusion is further reinforced by examination of the
The reasons for this choice are evident from the legislative record. Title VII could not have been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business. Those legislators demanded as a price for their support that “management prerogatives, and union freedoms . . . be left undisturbed to the greatest extent possible.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703 (j) was proposed by Senator Dirksen to allay any fears that the Act might be interpreted in such a way as to upset this compromise. The section was designed to prevent § 703 of Title VII from being interpreted in such a way as to lead to undue “Federal Government interference with private businesses because of some Federal employee‘s ideas about racial balance or racial imbalance.” 110 Cong. Rec. 14314 (1964) (remarks of Sen. Miller).6 See also id., at 9881 (remarks of
III
We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. 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 structured to “open employment opportunities for Negroes in occupations which have been traditionally closed to them.” 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).8
At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended 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 craftworkers in the Gramercy plant approximates the
We conclude, therefore, that the adoption of the Kaiser-USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.9 Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is
Reversed.
MR. JUSTICE POWELL and MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
MR. JUSTICE BLACKMUN, concurring.
While I share some of the misgivings expressed in MR. JUSTICE REHNQUIST‘s dissent, post, p. 219, concerning the extent to which the legislative history of Title VII clearly supports the result the Court reaches today, I believe that additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support the conclusion reached by the Court today, and I therefore join its opinion as well as its judgment.
I
In his dissent from the decision of the United States Court of Appeals for the Fifth Circuit, Judge Wisdom pointed out that this litigation arises from a practical problem in the administration of Title VII. The broad prohibition against discrimination places the employer and the union on what he ac-
In this litigation, Kaiser denies prior discrimination but concedes that its past hiring practices may be subject to question. Although the labor force in the Gramercy area was approximately 39% black, Kaiser‘s work force was less than 15% black, and its craftwork force was less than 2% black. Kaiser had made some effort to recruit black painters, carpenters, insulators, and other craftsmen, but it continued to insist that those hired have five years’ prior industrial experience, a requirement that arguably was not sufficiently job related to justify under Title VII any discriminatory impact it may have had. See Parson v. Kaiser Aluminum & Chemical Corp., 575 F. 2d 1374, 1389 (CA5 1978), cert. denied sub nom. Steelworkers v. Parson, 441 U. S. 968 (1979). The parties dispute the extent to which black craftsmen were available in the local labor market. They agree, however, that after critical reviews from the Office of Federal Contract Compliance, Kaiser and the Steelworkers established the training program in question here and modeled it along the lines of a Title VII consent decree later entered for the steel industry. See United States v. Allegheny-Ludlum Industries, Inc., 517 F. 2d 826 (CA5 1975). Yet when they did this, respondent Weber sued, alleging that Title VII prohibited the program because it discriminated against him as a white person and it was not supported by a prior judicial finding of discrimination against blacks.
Respondent Weber‘s reading of Title VII, endorsed by the Court of Appeals, places voluntary compliance with Title VII in profound jeopardy. The only way for the employer and the union to keep their footing on the “tightrope” it creates would be to eschew all forms of voluntary affirmative action. Even
The “arguable violation” theory has a number of advantages. It responds to a practical problem in the administration of Title VII not anticipated by Congress. It draws predictability from the outline of present law and closely effectuates the purpose of the Act. Both Kaiser and the United States urge its adoption here. Because I agree that it is the soundest way to approach this case, my preference would be to resolve this litigation by applying it and holding that Kaiser‘s craft training program meets the requirement that voluntary affirmative action be a reasonable response to an “arguable violation” of Title VII.
The Court, however, declines to consider the narrow “arguable violation” approach and adheres instead to an interpretation of Title VII that permits affirmative action by an employer whenever the job category in question is “traditionally segregated.” Ante, at 209, and n. 9. The sources cited suggest that the Court considers a job category to be “traditionally segregated” when there has been a societal history of purposeful exclusion of blacks from the job category, resulting in a persistent disparity between the proportion of blacks in the labor force and the proportion of blacks among those who hold jobs within the category.*
“Traditionally segregated job categories,” where they exist, sweep far more broadly than the class of “arguable violations” of Title VII. The Court‘s expansive approach is somewhat
A closer look at the problem, however, reveals that in each of the principal ways in which the Court‘s “traditionally segregated job categories” approach expands on the “arguable violations” theory, still other considerations point in favor of the broad standard adopted by the Court, and make it possible for me to conclude that the Court‘s reading of the statute is an acceptable one.
A. The first point at which the Court departs from the “arguable violations” approach is that it measures an individual employer‘s capacity for affirmative action solely in terms of a statistical disparity. The individual employer need not have engaged in discriminatory practices in the past. While, under
B. The Court also departs from the “arguable violation” approach by permitting an employer to redress discrimination that lies wholly outside the bounds of
Strong considerations of equity support an interpretation of
MR. JUSTICE REHNQUIST‘S dissent, while it focuses more on what
III
I also think it significant that, while the Court‘s opinion does not foreclose other forms of affirmative action, the Kaiser
MR. CHIEF JUSTICE BURGER, dissenting.
The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of
When Congress enacted
“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or
retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.” 42 U.S.C. § 2000e-2 (d) .
Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collective-bargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of
Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a “literal construction” would defeat the “purpose” of the statute—at least the congressional “purpose” as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute‘s evolution? One need not even resort to the legislative history to recognize what is apparent from the face of
Arguably, Congress may not have gone far enough in correcting the effects of past discrimination when it enacted
Until today, I had thought the Court was of the unanimous view that “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed” in
It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the “hard” cases always tempt judges to exceed the limits of their authority, as the Court does today by totally rewriting a crucial part of
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” The Nature of the Judicial Process 141 (1921).
What Cardozo tells us is beware the “good result,” achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at “good ends.”
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
In a very real sense, the Court‘s opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court‘s opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official of Oceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd:
“It was almost impossible to listen to him without being first convinced and then maddened. . . . The speech had been proceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was slipped into the speaker‘s hand. He unrolled and read it without pausing in his speech. Nothing altered in his voice or manner, or in the content of what he was saying, but suddenly the names were different. Without words
said, a wave of understanding rippled through the crowd. Oceania was at war with Eastasia! . . . The banners and posters with which the square was decorated were all wrong! . . . “[T]he speaker had switched from one line to the other actually in mid-sentence, not only without a pause, but without even breaking the syntax.” G. Orwell, Nineteen Eighty-Four 181-182 (1949).
Today‘s decision represents an equally dramatic and equally unremarked switch in this Court‘s interpretation of
The operative sections of
We have never wavered in our understanding that
Today, however, the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that
As if this were not enough to make a reasonable observer question this Court‘s adherence to the oft-stated principle that our duty is to construe rather than rewrite legislation, United States v. Rutherford, 442 U.S. 544, 555 (1979), the Court also seizes upon
Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, “uncontradicted” legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions. It may be that one or more of the principal sponsors of
I
Kaiser opened its Gramercy, La., plant in 1958. Because the Gramercy facility had no apprenticeship or in-plant craft training program, Kaiser hired as craftworkers only persons with prior craft experience. Despite Kaiser‘s efforts to locate and hire trained black craftsmen, few were available in the Gramercy area, and as a consequence, Kaiser‘s craft positions were manned almost exclusively by whites. In February 1974, under pressure from the Office of Federal Contract Compliance to increase minority representation in craft positions
Brian Weber is white. He was hired at Kaiser‘s Gramercy plant in 1968. In April 1974, Kaiser announced that it was offering a total of nine positions in three on-the-job training programs for skilled craft jobs. Weber applied for all three programs, but was not selected. The successful candidates—five black and four white applicants—were chosen in accord3
II
Were Congress to act today specifically to prohibit the type of racial discrimination suffered by Weber, it would be hard pressed to draft language better tailored to the task than that found in
“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.” 78 Stat. 256,
42 U.S.C. § 2000e-2 (d) .
Equally suited to the task would be
Entirely consistent with these two express prohibitions is the language of
Quite simply, Kaiser‘s racially discriminatory admission quota is flatly prohibited by the plain language of
III
In undertaking to review the legislative history of
A
Introduced on the floor of the House of Representatives on June 20, 1963, the bill—H. R. 7152—that ultimately became the
After noting that “[t]he purpose of [
When H. R. 7152 reached the House floor, the opening speech in support of its passage was delivered by Representative Celler, Chairman of the House Judiciary Committee and the Congressman responsible for introducing the legislation. A portion of that speech responded to criticism “seriously mis-
“[T]he charge has been made that the Equal Employment Opportunity Commission to be established by title VII of the bill would have the power to prevent a business from employing and promoting the people it wished, and that a ‘Federal inspector’ could then order the hiring and promotion only of employees of certain races or religious groups. This description of the bill is entirely wrong. . . .
“Even [a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous.
“. . . The Bill would do no more than prevent . . . employers from discriminating against or in favor of workers because of their race, religion, or national origin.
“It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing ‘racial or religious imbalance’ in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped.”
110 Cong. Rec. 1518 (1964) (emphasis added).
Representative Celler‘s construction of
Thus, the battle lines were drawn early in the legislative struggle over
The Senate debate was broken into three phases: the debate on sending the bill to Committee, the general debate on the bill prior to invocation of cloture, and the debate following cloture.
1
When debate on the motion to refer the bill to Committee opened, opponents of
“Mr. ERVIN. I invite attention to . . . Section [703 (a)] . . . .
“I ask the Senator from Alabama if the Commission could not tell an employer that he had too few employees, that he had limited his employment, and enter an order, under [Section 703 (a)], requiring him to hire more persons, not because the employer thought he needed more persons, but because the Commission wanted to compel him to employ persons of a particular race.
“Mr. HILL. The Senator is correct. That power is written into the bill. The employer could be forced to hire additional persons . . . .”
110 Cong. Rec. 4764 (1964) .15
Senator Humphrey, perhaps the primary moving force behind H. R. 7152 in the Senate, was the first to state the proponents’ understanding of
After 17 days of debate, the Senate voted to take up the bill directly, without referring it to a committee.
2
Formal debate on the merits of H. R. 7152 began on March 30, 1964. Supporters of the bill in the Senate had made elaborate preparations for this second round. Senator Humphrey, the majority whip, and Senator Kuchel, the minority whip, were selected as the bipartisan floor managers on the entire civil rights bill. Responsibility for explaining and defending each important title of the bill was placed on bipartisan “captains.” Senators Clark and Case were selected as the bipartisan captains responsible for
In the opening speech of the formal Senate debate on the
“Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance.
“That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing.
Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion.”Ibid. (emphasis added).
At the close of his speech, Senator Humphrey returned briefly to the subject of employment quotas: “It is claimed that the bill would require racial quotas for all hiring, when in fact it provides that race shall not be a basis for making personnel decisions.”
Senator Kuchel delivered the second major speech in support of H. R. 7152. In addressing the concerns of the opposition, he observed that “[n]othing could be further from the truth” than the charge that “Federal inspectors” would be empowered under
“There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual.”
Id. , at 7213.18
Of particular relevance to the instant litigation were their observations regarding seniority rights. As if directing their comments at Brian Weber, the Senators said:
“Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer‘s obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged—or indeed permitted—to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier.”
Ibid. (emphasis added).19
Despite these clear statements from the bill‘s leading and most knowledgeable proponents, the fears of the opponents
“Those opposed to H. R. 7152 should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a ‘white only’ employment policy. Both forms of discrimination are prohibited by title VII of this bill. The language of that title simply states that race is not a qualification for employment. . . . Some people charge that H. R. 7152 favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense.”
Id. , at 8921.
“The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices.”
Id. , at 11848 (emphasis added).
While the debate in the Senate raged, a bipartisan coalition under the leadership of Senators Dirksen, Mansfield, Humphrey, and Kuchel was working with House leaders and representatives of the Johnson administration on a number of amendments to H. R. 7152 designed to enhance its prospects of passage. The so-called “Dirksen-Mansfield” amendment was introduced on May 26 by Senator Dirksen as a substitute for the entire House-passed bill. The substitute bill, which ultimately became law, left unchanged the basic prohibitory language of
The Court draws from the language of
Contrary to the Court‘s analysis, the language of
In light of the background and purpose of
Senator Saltonstall, Chairman of the Republican Conference of Senators participating in the drafting of the Dirksen-Mansfield amendment, spoke at length on the substitute bill. He advised the Senate that the Dirksen-Mansfield substitute, which included
On June 9, Senator Ervin offered an amendment that would entirely delete
“The bill does not make anyone higher than anyone else. It establishes no quotas. It leaves an employer free to select whomever he wishes to employ. . . .
“All this is subject to one qualification, and that qualification, is to state: ‘In your activity as an employer . . . you must not discriminate because of the color of a man‘s skin. . . .’
“That is all this provision does. . . .
“It merely says, ‘When you deal in interstate commerce, you must not discriminate on the basis of race . . . .‘”
Id. , at 13080.
The Ervin amendment was defeated, and the Senate turned its attention to an amendment proposed by Senator Cotton to limit application of
“Mr. CURTIS. Is it not the opinion of the Senator that any individuals who provide jobs for a class of people who have perhaps not had sufficient opportunity for jobs should be commended rather than outlawed?
Thus, in the only exchange on the Senate floor raising the possibility that an employer might wish to reserve jobs for minorities in order to assist them in overcoming their employment disadvantage, both speakers concluded that
3
On June 10, the Senate, for the second time in its history, imposed cloture on its Members. The limited debate that followed centered on proposed amendments to the Dirksen-Mansfield substitute. Of some 24 proposed amendments, only 5 were adopted.
As the civil rights bill approached its final vote, several supporters rose to urge its passage. Senator Muskie adverted briefly to the issue of preferential treatment: “It has been said that the bill discriminates in favor of the Negro at the expense of the rest of us. It seeks to do nothing more than to lift the Negro from the status of inequality to one of equality of treatment.”
“The bill does not accord to any citizen advantage or preference—it does not fix quotas of employment or school population—it does not force personal association. What it does is to prohibit public officials and those who invite the public generally to patronize their businesses or to apply for employment, to utilize the offensive, humiliating, and cruel practice of discrimination on the basis of race. In short, the bill does not accord special consideration; it establishes equality.”
Id. , at 14484 (emphasis added).
Later that day, June 19, the issue was put to a vote, and the Dirksen-Mansfield substitute bill was passed.
The Act‘s return engagement in the House was brief. The House Committee on Rules reported the Senate version without amendments on June 30, 1964. By a vote of 289 to 126, the House adopted H. Res. 789, thus agreeing to the Senate‘s amendments of H. R. 7152.30 Later that same day, July 2, the President signed the bill and the
IV
Reading the language of
To put an end to the dispute, supporters of the civil rights bill drafted and introduced
“Nothing contained in [
Title VII ] shall apply to any business or enterprise on or near an Indian reservation, with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.” 78 Stat. 257,42 U. S. C. § 2000e-2 (i) .
V
Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent of Congress. To divine that intent, we traditionally look first to the
“. . . [T]oday we come to grips finally with a bill that advances the enjoyment of living; but, more than that, it advances the equality of opportunity.
“I do not emphasize the word ‘equality’ standing by itself. It means equality of opportunity in the field of education. It means equality of opportunity in the field of employment. It means equality of opportunity in the field of participation in the affairs of government . . . .
“That is it. . . .
“Equality of opportunity, if we are going to talk about conscience, is the mass conscience of mankind that speaks in every generation, and it will continue to speak long after we are dead and gone.”
110 Cong. Rec. 14510 (1964) .
There is perhaps no device more destructive to the notion of equality than the numerus clausus—the quota. Whether described as “benign discrimination” or “affirmative action,” the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing
Notes
“(a) . . . It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individ-
The Office of Federal Contract Compliance (OFCC), subsequently renamed the Office of Federal Contract Compliance Programs (OFCCP), is an arm of the Department of Labor responsible for ensuring compliance by Government contractors with the equal employment opportunity requirements established by“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”
The pertinent portions of the collective-bargaining agreement provide: “It is further agreed that the Joint Committee will specifically review the minority representation in the existing Trade, Craft and Assigned Main- tenance classifications, in the plants set forth below, and, where necessary, establish certain goals and time tables in order to achieve a desired minority ratio: “[Gramercy Works listed, among others] “As apprentice and craft jobs are to be filled, the contractual selection criteria shall be applied in reaching such goals; at a minimum, not less than one minority employee will enter for every non-minority employee entering until the goal is reached unless at a particular time there are insufficient available qualified minority candidates. . . . “The term ‘minority’ as used herein shall be as defined in EEOC Reporting Requirements.” 415 F. Supp. 761, 763 (ED La. 1976). The “Joint Committee” subsequently entered into a “Memorandum of Understanding” establishing a goal of 39% as the percentage of blacks that must be represented in each “craft family” at Kaiser‘s Gramercy plant. Id., at 764. The goal of 39% minority representation was based on the percentage of minority workers available in the Gramercy area. Contrary to the Court‘s assertion, it is not at all clear that Kaiser‘s admission quota is a “temporary measure . . . not intended to maintain racial balance.” Ante, at 208. Dennis E. English, industrial relations superintendent at the Gramercy plant, testified at trial: “Once the goal is reached of 39 percent, or whatever the figure will be down the road, I think it‘s subject to change, once the goal is reached in each of the craft families, at that time, we will then revert to a ratio of what that percentage is, if it remains at 39 percent and we attain 39 percent someday, we will then continue placing trainees in the program at that percentage. The idea, again, being to have a minority representation in the plant that is equal to that representation in the community work force population.” App. 69.“Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”
Section 703 (j) speaks to substantive liability under Title VII, but it does not preclude courts from considering racial imbalance as evidence of a Title VII violation. See Teamsters v. United States, 431 U. S. 324, 339-340, n. 20 (1977). Remedies for substantive violations are governed by § 706 (g),
“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.
“Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People com-
plain about . . . preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level closer to the American people and by communities and individuals themselves.” 110 Cong. Rec. 15893 (1964). Section 703 (a) (1) provides the third express prohibition inRepresentative Lindsay had this to say:
“This legislation . . . does not, as has been suggested heretofore both on and off the floor, force acceptance of people in jobs . . . because they are Negro. It does not impose quotas or any special privileges of seniority
“What the bill does do is prohibit discrimination because of race . . . .”
Representative Minish added: “Under title VII, employment will be on the basis of merit, not of race. This means that no quota system will be set up, no one will be forced to hire incompetent help because of race or religion, and no one will be given a vested right to demand employment for a certain job.”
Continuing with their exchange, Senators Hill and Ervin broached the subject of racial balance:
“Mr. ERVIN. So if the Commissioner . . . should be joined by another member of the Commission in the finding that the employer had too high a percentage, in the Commission‘s judgment, of persons of the Caucasian race working in his business, they could make the employer either hire, in addition to his present employees, an extra number of Negro employees, or compel him to fire employees of the Caucasian race in order to make a place for Negro employees?
“Mr. HILL. The Senator is correct, although the employer might not
This view was reiterated by Senator Robertson:
“It is contemplated by this title that the percentage of colored and white population in a community shall be in similar percentages in every business establishment that employs over 25 persons. Thus, if there were 10,000 colored persons in a city and 15,000 whites, an employer with 25 employees would, in order to overcome racial imbalance, be required to have 10 colored personnel and 15 white. And if by chance that employer had 20 colored employees, he would have to fire 10 of them in order to rectify the situation. Of course, this works the other way around where whites would be fired.”
Senator Humphrey interrupted Senator Robertson‘s discussion, responding: “The bill does not require that at all. If it did, I would vote against it. . . . There is no percentage quota.” Ibid.
This view was reiterated two days later in the “Bipartisan Civil Rights Newsletter” distributed to the Senate on March 19 by supporters of H. R. 7152:
“3. Defining discrimination: Critics of the civil rights bill have charged that the word ‘discrimination’ is left undefined in the bill and therefore the door is open for interpretation of this term according to ‘whim or caprice.’ . . .”
“There is no sound basis for uncertainty about the meaning of discrimination in the context of the civil rights bill. It means a distinction in treatment given to different individuals because of their different race, religion, or national origin.”
Earlier in the debate, Senator Humphrey had introduced a newspaper article quoting the answers of a Justice Department “expert” to the “10 most commonly expressed objections to [
“Objection: The law would empower Federal ‘inspectors’ to require employers to hire by race. White people would be fired to make room for Negroes. Seniority rights would be destroyed. . . .”
“Reply: The bill requires no such thing. The five-member Equal Employment Opportunity Commission that would be created would have no powers to order anything. . . .”
“. . . The bill would not authorize anyone to order hiring or firing to achieve racial or religious balance. An employer will remain wholly free to hire on the basis of his needs and of the job candidate‘s qualifications. What is prohibited is the refusal to hire someone because of his race or religion. Similarly, the law will have no effect on union seniority rights.”
In obvious reference to the charge that the word “discrimination” in
“[Section 703] prohibits discrimination in employment because of race, color, religion, sex, or national origin. It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [Section 703] are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin.”
Earlier in his speech, Senator Clark introduced a memorandum prepared at his request by the Justice Department with the purpose of responding to criticisms of
“Finally, it has been asserted that title VII would impose a requirement for ‘racial balance.’ This is incorrect. There is no provision in title VII . . . that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. . . . No employer is required to maintain any ratio of Negroes to whites . . . . On the contrary,
A Justice Department memorandum earlier introduced by Senator Clark, see n. 18, supra, expressed the same view regarding
“Title VII would have no effect on seniority rights existing at the time it takes effect. . . . This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. . . . [A]ssuming that seniority rights were built up over a period of time during which Negroes were not hired, these rights would not be set aside by the taking effect of title VII. Employers and labor organizations would simply be under a duty not to discriminate against Negroes because of their race.”
The interpretation of
The maintain-achieve distinction is analytically indefensible in any event.
Senator Robertson‘s observations prompted Senator Humphrey to make the following offer: “If the Senator can find in title VII . . . any language which provides that an employer will have to hire on the basis of percentage or quota related to color . . . I will start eating the pages one after another, because it is not in there.”
Referring to the EEOC, Senator Smathers argued that
The Court cites the remarks of Senator Sparkman in support of its suggestion that opponents had argued that employers would take it upon themselves to balance their work forces by granting preferential treatment to racial minorities. In fact, Senator Sparkman‘s comments accurately reflected the opposition‘s “party line.” He argued that while the language of
“Mr. SPARKMAN. At any rate, when the Government agent came to interview an employer who had 100 persons in his employ, the first question would be, ‘How many Negroes are you employing?’ Suppose the population of that area was 20 percent Negro. Immediately the agent would say, ‘You should have at least 20 Negroes in your employ, and they should be distributed among your supervisory personnel and in all the other categories‘; and the agent would insist that that be done immediately.
“Mr. STENNIS. . . .
“The Senator from Alabama has made very clear his point about employment on the quota basis. Would not the same basis be applied to promotions?
“Mr. SPARKMAN. Certainly it would. As I have said, when the Federal agents came to check on the situation in a small business which had 100 employees, and when the agents said to the employer, ‘You must hire 20 Negroes, and some of them must be employed in supervisory capacities,’ and so forth, and so on, the agent would also say, ‘And you must promote the Negroes, too, in order to distribute them evenly among the various ranks of your employees.‘”
Later in his remarks, Senator Sparkman stated: “Certainly the suggestion will be made to a small business that may have a small Government contract . . . that if it does not carry out the suggestion that has been made to the company by an inspector, its Government contract will not be renewed.” Ibid. Except for the size of the business, Senator Sparkman has seen his prophecy fulfilled in this case.
Senator Muskie also addressed the charge that federal agencies would equate “discrimination,” as that word is used in
“[S]ome of the opposition to this title has been based upon its alleged vagueness [and] its failure to define just what is meant by discrimination . . . . I submit that, on either count, the opposition is not well taken. Discrimination in this bill means just what it means anywhere: a distinction in treatment given to different individuals because of their race . . . [a]nd, as a practical matter, we all know what constitutes racial discrimination.”
Senator Muskie then reviewed the various provisions of
The complete exchange between Senators Cotton and Curtis, insofar as is pertinent here, is as follows:
“Mr. COTTON. . . .
“I would assume that anyone who will administer the laws in future years will not discriminate between the races. If I were a Negro, and by dint of education, training, and hard work I had amassed enough property as a Negro so that I had a business of my own—and there are many of them in this country—and I felt that, having made a success of it myself, I wanted to help people of my own race to step up as I had stepped up, I think I should have the right to do so. I think I should have the right to employ Negroes in my own establishment and put out a helping hand to them if I so desired. I do not believe that anyone in Washington should be permitted to come in and say, ‘You cannot employ all Negroes. You must have some Poles. You must have some Yankees.’ . . .”
“Mr. CURTIS. . . .
“The Senator made reference to the fact that a member of a minority race might become an employer and should have a right to employ members of his race in order to give them opportunity. Would not the same thing follow, that a member of a majority race might wish to employ almost entirely, or entirely, members of a minority race in order to enhance their opportunity? And is it not true that under title VII as written, that would constitute discrimination?
“Mr. COTTON. It certainly would, if someone complained about it and felt that he had been deprived of a job, and that it had been given to a member of a minority race because of his race and not because of some other reason.”
This colloquy refutes the Court‘s statement that “[t]here was no suggestion after the adoption of
Only three Congressmen spoke to the issue of racial quotas during the House‘s debate on the Senate amendments. Representative Lindsay stated: “[W]e wish to emphasize also that this bill does not require quotas, racial balance, or any of the other things that the opponents have been saying about it.”