AFFIRMATIVE ACTION OR REVERSE
DISCRIMINATION: THE HEAD AND TAIL
OF WEBER
HARRY
T.
EDWARDS*
The hatred of blacks has been so deeply bound up with being an American that it has been one of thefirst things new
Americans learn and one of the last things old Americans
forget. Such feelings have been elevated to a position of
national character,so that individuals now no longerfeel
personal guilt or responsibilityfor the oppression of black
people. The nation has incorporated this oppression into
itself in the form offolkways and storied traditions,leaving the individualfreeto shrug his shoulders and say only.
"That's our way of life. "I
THE TRADITION OF RACE DISCRIMINATION IN AMERICA
The problem of inequality for blacks in the United States is so
familiar to the American scene that "race discrimination" has
nearly achieved clich6 status in the vocabulary of American citizens. For many years in American history, race discrimination
against blacks was not only tolerated, but enforced by legal mandate.2 Near the turn of the twentieth century, race discrimination
against blacks was questioned but still tolerated under the legal
guise of "separate but equal." 3 Finally, in 1954, nearly 100 years
after the Emancipation Proclamation, racial discrimination and
segregation were openly challenged and rejected in the landmark
decision of Brown v. Board of Education.4 In Brown, the Supreme
Court concluded that the forced separation of blacks "from others
of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that
* Professor of Law, University of Michigan. B.S., Cornell University, 1962;
J.D., University of Michigan, 1965. This article was prepared in connection with the
Black American Law School Civil Rights Lecture which was delivered by the author at the Creighton University School of Law on November 8, 1979. [Professor
Edwards wishes to acknowledge and express his gratitude for the research assistance given him by Myra Selby and John Dorsey, both of whom are students at the
University of Michigan Law School.]
1. P. COBBS & W. GRIER, BLACK RAGE 172 (1969).
2. See generally A. HIGGINBOTHAM, JR., IN THE MATTER OF COLOR, RACE AND
THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD (1978).
3.
4.
See Plessy v. Ferguson, 163 U.S. 537, 546 (1896).
347 U.S. 483 (1954).
CREIGHTON LAW REVIEW
[Vol. 13
may affect their hearts and minds in a way unlikely ever to be undone. 15 The Court thus concluded that the doctrine of "separate
but equal" had no place in the field of public education because
"separate educational facilities [were] inherently unequal. '6
Although Brown focused on the constitutionality of racial segregation in public schools, it was nevertheless an unprecedented
and therefore powerful statement against racial bias. The decision
in Brown boldly questioned practices of racial discrimination and
segregation which had been used to preserve a tradition of inequality for blacks in America. Brown thus paved the way for the
passage of sweeping congressional acts against discrimination during the 1960s, in particular Title VII of the Civil Rights Act of 1964,7
covering employment, the Voting Rights Act of 1965,8 and the Civil
Rights Act of 1968, 9 providing protection against interference with
designated federally protected activities' ° and against discrimination in housing."
The passage of these acts set the stage for the first significant
fight against racial discrimination in America. Unfortunately, even
now, a quarter of a century after the decision in Brown, it appears
that racial discrimination against blacks is pervasive and the tradition of inequality persists. As one scholar has noted: "racism survives because it is politically advantageous, economically
12
profitable and psychologically satisfying."'
RACE DISCRIMINATION IN EMPLOYMENT: THE PROBLEM
IN FOCUS
One of the most critical forms of discrimination against blacks
in America has been in the employment market. Blacks in
America have traditionally suffered unequal pay for equal work in
the employment market, limited promotional opportunities, inadequate job training, relegation to the least significant and lowest
paying jobs, and levels of unemployment far in excess of the national average. 13 When Congress passed Title VII of the Civil
5. Id. at 494.
6. Id. at 495.
7. 42 U.S.C. § 2000e-17 (1976).
8. Id. § 1973.
9. 18 U.S.C. §§ 241-44 (1976).
10. Id. § 245.
11. 42 U.S.C. §§ 3601-3631 (1976).
12. Bell, Book Review, 25 EMORY L. REV. 879, 880 (1976).
13. " See generally Bureau of the Census, U.S. Dep't of Commerce, The Social
and Economic Status of the Black Populationin the United States. An Historical
View, 1790-1978, Series P-23, No. 80, CURRENT POPULATION REP. (1979) [hereinafter
cited as Status of the Black Population].
1980]
AFFIRMATIVE ACTION
Rights Act of 1964,14 it plainly recognized that employment discrimination against blacks was a critical problem in the United
States. To emphasize this point, the House Judiciary Report
stated that Title VII "can and will commit our Nation to the elimination of many of the worst manifestations of racial prejudice."' 15
For a time, the legislative ban against race discrimination in
employment was effectively enforced. For example, in 1971, in the
landmark opinion in Griggs v. Duke Power Co., 16 the Supreme
Court stated:
The objective ... of Title VII is ... to... remove barriers
that have operated in the past to favor an identifiable
group of white employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in.
terms of intent, cannot be maintained if they operate to
"freeze" the status
quo of prior discriminatory employ17
ment practices.
The Court also pointed out that 'Congress directed the thrust
of the Act to the consequences of employment practices, not simply
the motivation."' 8 This expansive reading of Title VII enabled the
federal courts to broadly define discrimination against blacks and
other minorities to include both "disparate treatment" and "disparate impact."' 19 Remedial concepts were also developed by the
courts to require employers and unions to modify discriminatory
seniority programs, 20 provide for back pay 2 ' and retroactive seniority 22 for victims of unlawful discrimination and allow for preferential remedies, including quotas, to deal with cases of proven past
discrimination. 23 In addition, Executive Order 11246 was adopted
to prohibit employment discrimination and require "affirmative ac14. 42 U.S.C. §§ 2000e -17 (1976).
15. H.R. REP. No. 914, 88th Cong., 1st Sess., pt. 2, 2 (1963).
16. 401 U.S. 424 (1971).
17. Id. at 429-30.
18. Id. at 432.
19. See, e.g., Gregory v. Litton Syss., Inc., 472 F.2d 631, 632 (9th Cir. 1972). "Disparate treatment" and "disparate impact" were given fuller definition by the
Surpeme Court in International Bhd. of Teamsters v. U.S., 431 U.S. 324, 344-45 (1977)
and Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577-78 (1978).
20. See, e.g., Patterson v. American Tobacco Co., 535 F.2d 257, 267 (4th Cir.
1976), cert. denied, 429 U.S. 920 (1976); United States v. N.L. Indus., Inc., 479 F.2d 354,
380 (8th Cir. 1973); Local 189 United Papermakers & Paperworkers v. United States,
416 F.2d 980, 985 (5th Cir. 1969).
21. Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).
22. Franks v. Bowman Transp. Co., 424 U.S. 747, 766 (1976); Meadows v. Ford
Motor Co., 510 F.2d 939, 949 (6th Cir. 1975).
23. EEOC v. Local 638, Sheet Metal Workers Int'l Ass'n, 532 F.2d 821, 830 (2nd
Cir. 1976). See generally Edwards & Zaretsky, PreferentialRemedies for Employment Discrimination,74 MIcH.L. REV. 1 (1975).
CREIGHTON LAW REVIEW
[Vol. 13
tion" among federal contractors; 24 the federal courts construed the
Civil Rights Act of 186625 to provide remedies for private acts of
employment discrimination apart from those available under Title
VII);26 and the Civil Rights Act of 1871,27 which proscribes any deprivation of constitutional rights under color of state authority, was
construed by the courts to provide a remedy for employment discrimination on account of race, sex, or national origin in the public
28
sector.
These developments reflected a clear understanding on the
part of the executive and judicial branches of government that, in
dealing with employment discrimination cases, the goal of equal
opportunity could not be implemented effectively solely through
neutral employment practices. It became obvious that, due to the
well-established tradition of pervasive race bias in the United
States, even if all employers hired, paid and promoted employees
on a nondiscriminatory basis following the passage of Title VII, it
would still be decades before blacks and other minorities reached
29
a status in the job market comparable to that of white males.
Therefore, judicial and executive remedies were created to require
employers and unions to take positive, affirmative action to overcome the present effects of past discrimination and to ensure equal
opportunity in employment. 30 Even in the cases involving judicially mandated desegregation of public schools, the courts came
to recognize that colorblind remedies could not effectively eliminate racial segregation and that affirmative relief was necessary to
3
overcome the effects of past racial bias. '
Despite these unprecedented legislative and executive reforms designed to proscribe race discrimination, and the sweeping
judicial pronouncements in favor of equal opportunity, the problem of race discrimination in employment persisted. In 1972, just
seven years after Title VII was enacted, Congress amended the law
24. Exec. Order No. 11,246, 3 C.F.R. 169 (1974). For a good discussion of the
history of contract compliance under Presidential executive orders, see W. MURPHY,
G. GETMAN & J. JONES, DIscRIMINATION IN EMPLOYMENT 431-47 (4th ed. 1979).
25. 42 U.S.C. § 1981 (1976).
26. See Johnson v. Railway Express Agency, 421 U.S. 454, 459-60 (1975).
27. 42 U.S.C. § 1983 (1976).
28. See Johnson v. Branch, 364 F.2d 177, 181-82 (4th Cir. 1966).
29. See Edwards, Race Discriminationin Employment: What Price Equality?,
1976 U. IiL. L.F. 572, 573-88 (1976).
30. See generally Belton, Title VII of the Civil Rights Act of 1964: A Decade of
Private Enforcement and JudicialDevelopments, 20 ST. Louis U.L.J. 225 (1976); Edwards & Zaretsky, PreferentialRemedies for Employment Discrimination,74 MICH.
L. REv. 1 (1975).
31. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22-31
(1971); McDaniel v. Barresi, 402 U.S. 39, 41 (1971), Green v. County School Bd., 391
U.S. 430, 439 (1968).
1980]
AFFIRMATIVE ACTION
to broaden its coverage and enhance the authority of the Equal
Employment Opportunity Commission and the courts to deal with
problems of employment discrimination. 32 Prior to the enactment
of the 1972 amendments to Title VII, the report of the Senate Committee of Labor and Public Welfare noted:
Seven years ago, in response to compelling national need
and concern, Congress enacted Title VII. During the six
years since its inception, the EEOC has made an heroic
attempt to reduce the incidence of employment discrimination in the Nation, and to ameliorate the conditions
which have led to the persistence of these practices. During this period, however, it has been demonstrated that
employment discrimination is even more pervasive and tehad assumed it to be at the
nacious than the Congress
33
time it passed the Act.
For a time, the broadened legislative mandate of Title VII, plus
strong judicial enforcement of Title VII and the Civil Rights Acts of
1866 and 1871, especially when coupled with the "affirmative action" obligation imposed upon government contractors under Executive Order 11246, produced some significant improvements in
employment opportunities for blacks and other minorities. 34 However, the gains for blacks were short-lived in part because of
changes in the composition of the Supreme Court, in part because
of changes in the political climate during the Nixon and Ford presidencies from 1968 to 1976, and in part because of increased periods of economic recession beginning in 1973 and continuing
through the present time.
During the 1960s, following the untimely assasinations of President Kennedy and Martin Luther King, the politics of civil rights
became a fashionable business in the United States. It was during
this period that the greatest gains occurred in the civil rights movement in America. However, civil rights faded in significance during
the Nixon-Ford era from 1968 to 1976. Conservative politics were a
factor in this change, but the economic situation probably produced the greatest adverse effect on minority gains in the employment market.
As will be shown below, during the periods of high unemployment which occurred between 1973 and 1979, blacks suffered worst
in the employment market. As the last hired, blacks and other minorities were usually the first laidoff during times of economic recession; therefore, even where affirmative action had worked to
32.
33.
34.
42 U.S.C. § 2000e-5 (1976).
S. REP. No. 92-415, 92d Cong., 1st Sess. 4 (1971).
See notes 30 & 31 and accompanying text supra.
CREIGHTON LAW REVIEW
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secure temporary gains for minority persons in the employment
market, these gains were often lost due to layoffs in periods of high
unemployment. The problem was compounded by the fact that, as
the employment market tightened during periods of unemployment, it became more difficult for black and other minorities to
move into formerly segregated areas of employment; it was also
clear that the competition for jobs in recessionary markets helped
to heighten racial tensions between the minority and nonminority
communities in the United States. Whereas the concept of "affirmative action" was a by-product of the civil rights movement of the
1960s, the notion of "reverse discrimination" was given birth during the 1970s when nonminorities began to perceive that they were
disadvantaged by efforts designed to ensure equal opportunities
for minorities. Affirmative action programs were designed to foster, not inhibit, racial equality; this characteristic distinguished affirmative action programs and other preferential remedies from
the traditional patterns of overt discrimination in favor of nonminority persons in the employment market. Nevertheless, in a tight
labor market, affirmative action was simply viewed by nonminority
persons as arbitrary bias in favor of minorities.
Economic considerations were merely one side of the problem
for minorities seeking equal opportunity in employment during
the 1970s. At about the same time when the employment market
softened during the 1970s, the Supreme Court issued a series of
decisions which appeared to confine and narrow the relief available for employment discrimination under the Civil Rights Acts.
In 1971, in Griggs v. Duke Power Co., 35 the Supreme Court decided
that Title VII was aimed at reaching the effects of past discrimination, whatever the motive. 36 This early Title VII case was encouraging primarily because it was a broad interpretation of the
statutory language which plainly allowed for effective relief to victims of discrimination. At least until 1976, Griggs was the guiding
light for judicial enforcement of the proscription against race discrimination in employment in cases arising under Title VII, section
1981 of the Civil Rights Act of 1866 and section 1983 of the Civil
opinions issued in
Rights Act of 1871. However, several significant
37
1976 signalled a change in judicial thinking.
In General Electric Co. v. Gilbert,38 the majority opinion written by Justice Rehnquist openly questioned the soundness of the
35. 401 U.S. 424 (1971).
36. Id. at 432.
37. Edwards, The Coming of Age of the Burger Court: Labor Law Decisions of
the Supreme Court During the 1976 Term, 19 B.C.L. REV. 1, 4-36 (1977).
38. 429 U.S. 125 (1976).
1980]
AFFIRMATIVE ACTION
"effects test" announced in Griggs.39 Although Griggs survived
Gilbert, because Justices Stewart, Blackmun, Marshall, Brennan
and Stevens apparently refused to "join any inference or suggestion in the Court's opinion.., that effect may never be a controlling
factor in a Title VII case,"40 a different result was reached in Washington v. Davis.41 In Davis, the Supreme Court ruled that a personnel test that excluded a disproportionately large number of
black applicants for police officer positions with the District of Columbia did not violate the due process clause of the fifth amendment by reason solely of its racially disproportionate impact. The
Court ruled further that the court of appeals erred in applying the
legal standards applicable to Title VII cases in resolving constitutional issues arising under section 1983 of the Civil Rights Act of
1871. For a denial of equal protection, the Court ruled that there
42
must be an invidious discriminatory purpose.
In another 1976 opinion, Franks v. Bowman Transportation
Co. ,43 the Supreme Court ruled in favor of retroactive seniority for
identified victims of racially discriminatory hiring practices. However, the Court in Franksindicated that the disputed seniority system, although responsible for locking minorities into lower paid
positions, was not the source of discrimination. Therefore, the victims of past discrimination were limited to an award of retroactive
seniority to the date of their individual employment applications.4
The Court recognized the incompleteness of this remedy, because
"most discriminatees even under an award of retroactive seniority
status will still remain subordinated in the hierarchy to a position
inferior to that of a greater total number of employees than would
have been the case in the absence of discrimination. '45 Nevertheless, the Court was inclined to balance the rights of discriminatees
against the legitimate expectations of nonminority workers who
46
had achieved job status under the existing seniority plan.
In 1977, the Supreme Court, building on the principles established in Franks, ruled in InternationalBrotherhood of Teamsters
v. United States,47 that a "neutral, legitimate seniority system does
not become unlawful under Title VII simply because it may per39.
40.
41.
42.
43.
44.
45.
46.
47.
Id. at 137.
Id. at 146 (Blackmun, J., concurring).
426 U.S. 229 (1976).
Id. at 238-45.
424 U.S. 747 (1976).
Id. at 757-70.
Id. at 776-77.
Id. at 777.
431 U.S. 324 (1977).
CREIGHTON LAW REVIEW
[Vol. 13
petuate pre-Act discrimination. '48 The Court came to its conclusion based upon the legislative history of the Act, 49 although it
recognized that absent this section the seniority system in Teamsters would likely have been found to be invalid under Griggs v.
Duke Power Co. 50 The net effect of Teamsters was to protect
facially neutral seniority systems unless it can be shown that the
systems were adopted with an intent to discriminate. Teamsters
was widely critized because it overturned precedent from eight circuit courts of appeals "that had been relied on for years by wellmeaning union and employer advocates to justify modifications of
'51
discriminatory seniority systems."
Teamsters, like Franks, clearly rejects the possibility of "fictional seniority" for minority persons who are identified victims of
proven discrimination, either to give them some preference for future promotions or some special protection against layoffs. As a
consequence, newly hired minority persons are required to follow
job progression rules established pursuant to existing facially neutral seniority systems. This is so even though it may be shown that
a seniority system operates to perpetuate past discrimination by
favoring nonminority persons who have the most service and thus
are given the first right to bid on higher jobs and the greatest protection against layoffs. Although the concept of "reverse discrimination" is not specifically discussed in Teamsters, the opinion
clearly manifests a concern over what are perceived to be the legitimate expectations of nonminority employees who claim job fights
under facially neutral seniority systems. 52 Teamsters clearly re48. Id. at 353-54.
49. Congressional proponents of Title VII assured critics of the legislation that
it would not destroy existing seniority rights. Senators Clark and Case, the bipartisan captains during the 1963 debates on Title VII, placed an interpretative memorandum in the Congressional Record:
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 non-discriminatory basis.
110 CONG. REC. 723 (1964). The Teamsters Court concluded that section 703(h), part
of a compromise bill, was enacted to make it clear that existing seniority systems
were not unlawful under Title VII. International Bhd. of Teamsters v. United
States, 431 U.S. 324, 353-54 (1977).
50. 431 U.S. at 349.
51. Edwards, PreferentialRemedies and Afirmative Action in Employment in
the Wake of Bakke, 1979 WASH. U.L.Q. 113, 120 (1979).
52. The courts have generally been willing to grant "front pay" as an alternative to displacement of whites by blacks or fictional seniority. In cases where a job
vacancy does not exist for discriminatees, the court grants front pay at the appropriate higher job rate until the discriminatee is placed in the job from which he was
unlawfully excluded. See Patterson v. American Tobacco Co., 535 F.2d 257, 269 (4th
19801
AFFIRMATIVE ACTION
jects remedies that might result in direct displacements of incumbent nonminority employees; it focuses on identified victims of
past discrimination; and it impliedly prohibits "fictional seniority"
for minorities as a way to offset the effects of last-hired first-fired.
Although the Griggs decision cannot be read to mandate any of
these approaches, it is still clear that Teamsters represented a departure from the Court's more expansive approaches to Title VII
enforcement seen in Griggs v. Duke Power Co.,5 3 Moody v. Albemarle Paper Co.,54 and other like decisions.
This restrictive approach to Title VII enforcement was witnessed again in the Supreme Court's 1978 decision in Board of
Trustees of Keene State College v. Sweeney. 55 The 5-4 judgment in
Sweeney reversed a lower court holding that the defendant had
unlawfully failed to promote a faculty member because of her sex.
The rationale of the majority opinion in Sweeney was that the
court of appeals had incorrectly required the college to "prove absence of discriminatorymotive. '56 As the four dissenting Justices
in Sweeney properly point out, the majority opinion is specious be57
cause it reads words from the lower court decision out of context.
In fact, the court of appeals' opinion, when read in its entirety, is
plainly a correct statement of the law and a proper assignment of
the burden of proof. The dissenters in Sweeney also assert that
the "imaginative distinction" 58 in the majority opinion between
having to prove a nondiscriminatory motive and having to "articulate" a legitimate one was illusory.
Sweeney is not troubling merely because it reversed the lower
court's decision on seemingly specious grounds. It is also disturbing because of its possible significance for future employment
discrimination cases in the professions and other higher level occupations. Higher education cases, of which Sweeney was one,
have been among the few, and certainly the most significant, employment discrimination claims involving professional employment arising under Title VII and other civil rights acts. The
plaintiffs in these cases have rarely succeeded, however, because
as one court has noted: "Many [judicial opinions] . . .have [acCir.), cert. denied, 429 U.S. 920 (1976). See generally Edwards, PreferentialRemedies and Affirmative Action in Employment in the Wake of Bakke, 1979 WASH.
U.L.Q. 113 (1979).
53. 401 U.S. 424 (1971).
54. 422 U.S. 405 (1975). See also Jones, Title VII, Seniority, and the Supreme
Court: Clarificationor Retreat?, 26 KAN.L. REV. 1 (1977).
55. 439 U.S. 24 (1978).
56. Id.
57. Id. at 27-28.
58. Id. at 29.
CREIGHTON LAW REVIEW
cepted]
. . . the
[Vol. 13
broad proposition that courts should exercise min-
imal scrutiny of college and university employment practices ...
This antiinterventionist policy has rendered universities virtually
immune to charges of employment bias, at least when that bias is
not expressed overtly."5 9 Sweeney not only does nothing to cure
the problem of judicial deference to employer judgments in cases
involving professional employment, but-even worse-it seems to
lighten the burden of proof on defendants once a prima facie case
has been made out by plaintiffs in these cases.
THE ECONOMIC EFFECTS OF EMPLOYMENT
DISCRIMINATION
These judicial setbacks might have been less troubling if the
status of blacks in the employment market had shown some significant and lasting improvements during the past decade. However,
full equality of employment opportunity surely has not been realized by blacks in the years since the effective date of Title VII.
During the nearly fifteen years since the original enactment of Title VII, the economic gap between blacks and whites has continued
to remain wide. Figures for the last seven years show that blacks
in the United States still experience higher unemployment, lower
income levels, and higher levels of poverty than whites. Although
antidiscrimination legislation, executive orders and court opinions
have plainly had some positive effect on improving the status of
blacks in the job market, "race is still the dominant factor in determining black life chances in America." 60
Unemployment rates are one of the clearest indicators of the
ever-present disparity between blacks and whites in the employment market. Overall unemployment has generally declined since
1975,61 affecting both whites and blacks; however, the racial gap
has grown because the level of unemployment among white workers has declined at a faster rate than among black workers. Black
unemployment was 1.8 times greater than white unemployment in
1975. Between 1975 and 1978, the overall jobless rates went down
from 13.9% to 11.9% for blacks and from 7.8% to 5.2% for whites.
However, the net effect of these declines -produced a black unemployment rate 2.3 times greater than the white unemployment rate
in 1978. This was the widest gap in the unemployment rate be59. Powell v. Syracuse Univ., 580 F.2d 1150, 1153 (2d Cir.), cert. denied, 439 U.S.
984 (1978).
60. N.Y. TIMES, Oct. 14, 1979, § 12, at 61, col. 3.
61. NATIONAL URBAN LEAGUE RESEARCH DEP'T, IE WIDENING ECONOMIC GAP 1
(1979) [hereinafter cited as NATONAL URBAN LEAGUE].
AFFIRMATIVE ACTION
1980]
723
tween whites and blacks since the Labor Department first began
recording employment statistics by race in 1972.62
It is quite commonplace for unemployment to decline during
62. Interview (telephone) with Carol Boyd Leon, Office of Current Employment Analysis, Bureau of Labor Statistics (Nov. 5, 1979). Unemployment rates
were reported for whites and "non-whites" when the Bureau started publishing the
rates in 1954. In 1972, the "non-white" category was elimifiated and replaced with
"blacks" and "other."
UNEMPLOYMENT RATES OF WORKERS BY RACE, SEX
AND AGE STATUS, 1975-1978
1975
1976
1977
1978
8.5
7.7
7.0
6.0
Black
White
B/W Ratio
ADULT MEN
13.9
7.8
1.8
13.1
7.0
1.9
13.1
6.2
2.1
11.9
5.2
2.3
Black
White
B/W Ratio
ADULT WOMEN
11.7
6.2
1.9
10.6
5.4
1.7
10.0
4.6
1.9
8.6
3.7
2.3
Black
White
B/W Ratio
TEENAGERS
11.5
7.5
1.5
11.3
6.8
1.7
11.7
6.2
1.9
10.6
5.2
2.0
Black
White
B/W Ratio
36.9
17.9
2.1
37.1
16.9
2.2
38.3
15.4
2.5
36.3
13.9
2.6
TOTAL
NATIONAL URBAN LEAGUE, supra note 61, at 18. "Blacks" include other non whites.
SEASONALLY ADJUSTED UNEMPLOYMENT RATES
OCTOBER 1979
MEN
BLACK
WHITE
(20 yrs. and older)
WOMEN
9.4
3.7
(20 yrs. and older)
10.8
5.1
39.2
14.4
TEENAGERS
(16-19 yrs.)
Interview (telephone) with Carol Boyd Leon, Office of Current Employment Analysis, Bureau of Labor Statistics (Nov. 5, 1979).
CREIGHTON LAW REVIEW
[Vol. 13
periods of economic recovery and to rise during recessionary periods. However, black unemployment does not respond to this economic cycle as consistently as white unemployment. For example,
during the 1975-77 period of economic recovery, the rate of unemployment for white workers declined while the overall rate for
blacks increased by 2%.63 During this same period, the rate of unemployment for white teenagers dropped by 9%, while the rate for
black teenagers showed an increase of 6%.64
Among blacks, teenagers and adult women are the groups
most seriously affected by the unemployment gap. The unemployment rate for black teenagers has exceeded 20% annually for the
past quarter century. 65 Recent figures indicate that the rate stood
at 35.4% in 1972 and has remained above 30% since that year. The
highest teenage unemployment rate for whites between 1972 and
1978 was 17.8% in 1975; however, this rate did not even approach
the lowest black rate of 32.9% in 1973.66 The seasonally adjusted
figures for 1979 indicate continued disparity along racial lines. A
monthly comparison, beginning in January and ending in September, shows that the jobless rate for black teenagers was at least
twice the rate for whites in each month. The September 1979 rate
67
for white teenagers was 14.6% compared to 35.7% for black youth.
The unemployment problem for black teenagers is com63. NATIONAL URBAN LEAGUE RESEARCH DEP'T, THE ILLUSION OF BLACK PROGRESS 6 (1978) [hereinafter cited as BLACK PROGRESS].
64.
Id.
65.
REPORT OF THE AMERICAN ASSEMBLY, YOUTH UNEMPLOYMENT 4 (August 9-
12, 1979) (unpublished report to be reprinted in YOUTH EMPLOYMENT AND PUBLIC
POLICY, Anderson & Sawhill, ed.).
66. The following table depicts the disparity in teenage unemployment rates:
TEENAGE UNEMPLOYMENT RATES
ANNUAL AVERAGES, 1972 -1978
TEENAGERS
(16-19 YRS.)
1972
1973
1974
1975
1976
1977
1978
BLACK
35.4
32.9
34.9
39.4
39.2
41.1
38.6
WHITE
14.2
12.6
14.0
17.9
16.9
15.4
13.9
Unemployment rate summary sheets furnished by Office of Current Employment
Analysis, Bureau of Labor Statistics [hereinafter cited as Labor Statistics]. The
racial classification of "blacks" does not include other nonwhites.
67. The seasonally adjusted disparity is illustrated below:
AFFIRMATIVE ACTION
1980]
pounded by a high incidence of "structural unemployment."
Structural unemployment has been defined by the U.S. Joint Economic Committee of Congress as "a situation in which certain
groups of workers cannot compete successfully in the labor market
because of a deficiency of skills or education, a depressed regional
economy, or discriminatory hiring practices. Such workers have
difficulty finding satisfactory jobs even during periods of high overall employment. '68 Black teenagers are often the only group for
which unemployment continues to rise during periods of economic
recovery. For example, during the 1954-57 and 1961-69 recovery periods, unemployment for white youth fell by 5% and 1%, respectively; however, the jobless rates for black teenagers increased by
22% or more in each of these periods. 69 The 1975-77 recovery period showed only modest change in the pattern established in earlier periods. White teenage unemployment declined by 9%, while
the rate for black teenagers rose by 6%.70 These persistent failures
to respond to economic recovery indicate that black teenage unemployment is primarily structural.
Among the determinants of structural unemployment, i.e. lack
of education and job skills, discriminatory hiring practices, and a
depressed regional economy, deficiency in educational training is
no longer seen to be the predominant factor among black teenagers. The percentage of blacks completing high school has increased markedly since 1940. High school graduates accounted for
only 11% of the black population in 1940; that percentage jumped
to 33% in 1960 and 69% in 1975.71 By 1976, 70% of the blacks in the
16-24 age group in the labor force had a high school diploma or better.7 2 Despite black progress in educational attainment, the 1976
TEENAGE UNEMPLOYMENT RATES
SEASONALLY ADJUSTED, 1979
TEENAGERS
JAN.
FEB.
MAR.
APR.
MAY
JUNE
JULY
AUG.
SEPT.
BLACK
(16-19 YRS.)
33.6
38.3
33.4
36.8
37.7
37.7
36.7
35.7
35.7
WHITE
13.7
13.6
13.6
13.9
14.3
13.0
13.3
14.9
14.6
Id.
68. BLACK PROGRESS, supra note 63, at 4. For an interesting thesis on the impact of race, see W. WILSON, THE DECLINING SIGNIFICANCE OF RACE (1978).
69. Id. at 5.
70. Id. at 6.
71. Status of the Black Population, supra note 13, at 85. See also BLACK PROGRESS, supra note 63, at 95.
72. BLACK PROGRESS, supra note 63, at 7.
CREIGHTON LAW REVIEW
[Vol. 13
figures show that young blacks with some college education experienced a 27.2% rate of unemployment, more than three times the
73
rate of 8.2% experienced by white persons in the same category.
Even more startling is the fact that young blacks with higher
levels of educational attainment than their white counterparts still
encounter higher rates of unemployment. In 1976, white high
school dropouts had an unemployment rate of 22.3%, compared
with an unemployment rate of 23.6% for black high school graduates and 27.2% for those with college education. 74 These figures
alone indicate that black teenagers continue to suffer what has
been aptly described as the degradation of "learning without earning."' 75 These figures have also prompted researchers at the Urban
unemployLeague to conclude that a significant cause of structural
76
ment for black teenagers is race discrimination.
The problem of unemployment among black women is nearly
as severe as the problem experienced by black teenagers. The occasionally stated belief that adult black women currently enjoy
low unemployment by virtue of affirmative action, or otherwise, is
simply not supported by the data. In the last decade, there has
been an influx of women into the labor force. However, the rise in
the labor force participation rate for black women has not been as
great as the increase for white women.77 Between 1954 and 1977,
the rate increased from 46.1% to 50.9% for black women; for white
women the jump was from 33.3% to 48.1%. Labor force participation has not significantly altered the racial disparity in joblessness
among women. Black women continue to experience unemploy73.
74.
75.
76.
77.
Id.
Id.
Id. at 8.
Id.
The following table points out the difference:
PARTICIPATION RATES IN CIVILIAN LABOR FORCE AMONG WOMEN,
1954-1977
BLACK
WOMEN
WHITE
WOMEN
Id. at 32.
1954
1961
1969
1972
1973
1975
1977
46.1
48.3
49.8
48.7
49.1
49.2
50.9
33.3
36.9
41.8
43.2
44.1
45.9
48.1
1980]
AFFIRMATIVE ACTION
ment at an annual rate of more than twice the rate for white women. 78 The seasonally adjusted figures for September, 1979, for
example, indicate an unemployment rate of 10.4 for black women,
compared to 4.8 for white women. 79 The problem for black women
is compounded by the fact that many more black women than
white work as the sole supporters and "heads of household" in
80
their families.
The unemployment situation for blacks has several serious
side effects. One such effect is "poverty," which has always been a
debilitating condition affecting large segments of the black population in America. 8 ' For example, in 1959 the poverty threshhold for
78. The Black female unemployment rate is set out below:
UNEMPLOYMENT RATES FOR WOMEN
ANNUAL AVERAGES, 1972 - 1978
WOMEN
(20 YRS.
AND OVER)
1972
1973
1974
1975
1976
1977
1978
BLACK
9.0
8.5
8.7
12.1
11.6
12.2
11.1
WHITE
4.9
4.3
5.0
7.5
6.8
6.2
5.2
Labor Statistics, supra note 66.
79. With seasonal adjustment, the disparity is even greater
UNEMPLOYMENT RATES FOR WOMEN
SEASONALLY ADJUSTED, 1979
WOMEN
(20 YRS.
AND OVER)
JAN. FEB. MAR. APR. MAY JUNE JULY AUG. SEPT.
BLACK
11.2
11.1
10.9
11.5
11.0
11.5
10.6
11.2
10.4
WHITE
5.0
5.0
5.0
4.9
5.1
5.0
4.7
5.2
4.8
Labor Statistics, supra note 66.
80. BLACK PROGRESS, supra note 63, at 18. See also Status of the Black Population, supra note 13, at 27-29.
81. Families and unrelated individuals are classified as being above or below
poverty level using the poverty index adopted by the federal government in 1969.
This index reflects the varying consumption requirements of families based upon
their size and composition, sex, and age of the person maintaining the family, and
farm-nonfarm residence. Poverty thresholds are revised each year to reflect
changes in the consumer price index. Status of the Black Population,supra note 13,
at 254-55.
CREIGHTON LAW REVIEW
[Vol. 13
a nonfarm family of four was $2,973.82 In that year the poverty rate
for black persons (55.1%) was three times the rate (18.1%) for
white persons. 83 By 1977 the poverty threshold was $6,19184 and
the poverty rate had declined to 31.3% for blacks and 8.9% for
whites. 85 Although the 1977 figures indicate a decline in the poverty rate, the disparity between whites and blacks widened and
the black rate was more than three times the rate for white persons. Comparing black and white families indicates an even wider
gap in the poverty rates between the two races. In 1977 black families had a 28.2% poverty rate, which was more than four times the
86
7.0% rate for whites.
Another way to measure the economic gap between blacks and
whites is to compare levels of income. Income trends are established according to various measures such as median or mean family income and individual earnings. Comparing the racial
differences in individual earnings is most useful because variations due to changes in family composition are substantially eliminated. On this scale of measure, the ratio of black to white median
income has shown some improvement from 1948 to 1974. The improvement was largely attributable to a rise in the median income
of black women, from $1,008 in 1948 to $2,806 in 1974. Black men
showed a lesser gain during this period, moving from $2,793 to
$5,370.87
82. Status of the Black Population,supra note 13, at 49.
83. Bureau of the Census, U.S. Dep't of Commerce, Money Income and Poverty
Status of Families and Personsin the United States: 1977, Series P-60, No. 116 CURRENT POPULATION REP. 21 (1978) [hereinafter cited as Money Income and Poverty].
84. Id. at 29.
85. Id. at 21.
86. Id. at 20.
87. The median income for black men and women for the years 1948 to 1974 is
setout below:
MEDIAN INCOME OF PERSONS 14 YEARS OLD AND OVER WITH INCOME,
FOR SELECTED YEARS: 1948 to 1974
WOMEN
MEN
YEAR
1948
1953
1959
1964
1969
1974
....
....
....
....
....
....
Black
White
Black
White
$2,793
3,450
3,345
4,447
5,296
5,370
$5,143
6,266
7,120
7,847
9,105
8,794
$1,008
1,395
1,369
1,695
2,476
2,806
$2,322
2,387
2,222
2,405
2,937
3,133
Status of the Black Population,supra note 13, at 46.
1980]
AFFIRMATIVE ACTION
Black men and women continue to earn only a fraction of that
earned by their white counterparts. The ratio of black/white earnings by women has shown a significant increase, from 0.43 in 1948
to 0.90 in 1974. Black men have not fared quite as well in relation to
white men, showing a smaller increase in the ratio, from 0.54 in
1948 to 0.61 in 1974.88 In absolute terms, black women are actually
behind white women as well as white and black men because black
women have historically earned fewer dollars than persons in
these other groups. Despite a narrowing of the black/white earnings gap between women over the quarter century, black women
have remained in the lowest position according to the number of
dollars earned.
Blacks continue to hold fewer high-paying, high-status jobs
than whites. According to 1977 figures, the majority (58%) of black
men held low-paying blue collar jobs and less than one quarter
(23%) of the white collar positions. Black women also lagged behind whites in their proportion of high-status, high-paying positions.89
88. The ratios are depicted by the following table:
MEDIAN INCOME RATIOS OF PERSONS 14 YEARS OLD AND OVER WITH
INCOME,
FOR SELECTED YEARS: 1948 to 1974
YEAR
1948
1953
1959
1964
1969
1974
Black women
to
Black men
White women
to
White men
Black women
to
White women
Black men
to
White men
0.36
0.40
0.41
0.38
0.47
0.52
0.45
0.38
0.31
0.31
0.32
0.36
0.43
0.58
0.62
0.70
0.84
0.90
0.54
0.55
0.47
0.57
0.58
0.61
Id.
89.
The occupational disparities are illustrated by the following:
[Vol. 13
CREIGHTON LAW REVIEW
OCCUPATION OF EMPLOYED MEN AND WOMEN: 1977
(Numbers in thousands - Annual averages)
MEN
WOMEN
Percent
Black of
Black White all races
Percent
Black of
Black White all races
4,496 48,578
8.3
3,887
32,156
10.6
100
100
(X)
100
100
(X)
WHITE-COLLAR WORKERS
23
42
4.6
44
66
7.4
Professional and technical
7
15
4.1
13
16
9.0
Medical and other health
1
2
3.9
3
4
8.4
Teachers, except college
1
2
6.5
5
6
9.8
Other professional and
technical workers
5
12
3.8
5
6
8.7
5
15
3.2
3
6
4.9
Salaried workers
4
12
3.0
2
5
5.0
Self-employed workers
1
3
3.7
1
4.3
Sales workers
2
6
3.4
2
7
3.6
Retail trade
1
2
4.5
2
6
3.9
Other industries
1
4
2.7
-
2
2.6
8
6
10.1
25
36
7.8
10.5
7
13
6.1
OCCUPATION
TOTAL EMPLOYED
Percent
Managers and Administrators,
except farm
Clerical workers
Stenographers, typists,
and secretaries
-
-
-
7
6
10.0
19
23
8.7
BLUE-COLLAR WORKERS
58
45
10.4
18
14
13.4
Craft and kindred workers
16
22
6.3
1
2
8.2
Operatives, except transport
16
11
11.3
16
11
14.7
Transport equipment operatives
10
6
14.4
-
1
7.6
Nonfarm laborers
16
7
17.3
1
1
11.1
SERVICE WORKERS
17
8
15.8
37
19
18.6
Other clerical workers
Private household
-
20.0
10
2
34.9
Other
16
8
15.8
27
17
15.8
3
4
6.4
1
1
7.2
Farmers and farm managers
1
3
2.3
Farm laborers and supervisors
3
2
12.6
FARM WORKERS
Id. at 218.
-
-
2.2
1
1
8.4
AFFIRMATIVE ACTION
1980]
Blacks have traditionally earned less than whites in the same
occupations or job categories. Using white men as the standard
(100%), the data shows that in 1975 black men and women earned
less than the standard in all occupations. 90 Black men as a group
were closer to the standard than women of either race. For example, in the clerical category, black men earned 91% of what white
men earned, while black and white women received 69% and 63%
respectively. Although women did not even attain 80% of the
white male standard in 1975, the racial gap between women virtually closed in the categories of managers and sales. In the crafts,
clerical and service occupations, the ratio for black women exceeded that for white women. Despite substantial improvements
in the median earnings of black women vis-a-vis white women, the
former group continues to lag behind the three other groups in
90. The chart below details 1975 earnings:
MEDIAN EARNINGS OF YEAR-ROUND, FULL-TIME WORKERS
BY RACE, SEX AND OCCUPATION, 1975
MEN
ALL OCCUPATIONS
Managers
Professionals
Sales
Crafts
Clerical
Operatives
Laborers
Services
WOMEN
White
Black
$13,054
16,948
16,487
14,142
13,183
11,711
11,467
9,623
8,188
$ 9,707
12,697
12,919
11,738
10,919
10,623
9,363
7,483
6,759
MEN
(Percent of White Men)
ALL OCCUPATIONS
Managers
Professionals
Sales
Crafts
Clerical
Operatives
Laborers
Service
White
Black
$ 7,513
$ 7,237
8,921
8,977
10,115
9,219
5,501
5,447
7,280
7,927
7,360
8,030
6,342
5,467
7,246
6,670
5,203
5,431
WOMEN
Whites
Black
White
Black
100
100
100
100
100
100
100
100
100
74
75
78
83
83
91
82
78
83
58
53
62
39
55
63
55
75
64
55
53
56
39
60
69
48
69
66
BLACK PROGRESS, supra note 63, at 37. Median earnings in specific occupations are
for private wage and salary workers in nonagricultural industries only. "All occupations" include workers in private agricultural industries and in government. Id.
CREIGHTON LAW REVIEW
[Vol. 13
nearly every occupation. Even more noteworthy is the fact that
black women earned less than half of that earned by white men in
two out of eight occupations.
It is clear from the foregoing data that blacks have made some
important economic gains over the last decade; however, wide racial disparities still exist in income levels, unemployment and poverty levels. Economic deprivation in the labor market is still a fact
of life for a large number of blacks in America.
THE BAKKE CASE
Primarily because the economic indicators have continued to
show only limited gains for blacks and other minorities in the employment market, civil rights advocates have persisted in their
press for "affirmative action" in both employment and education.
At least until very recently, both government regulators and the
courts have recognized the necessity of affirmative action programs and preferential remedies to overcome existing patterns of
racial bias and segregation in employment. For example, Peter
Nash, the former Solicitor at the Department of Labor, argued
forcefully in 1971 that
[nJondiscrimination and affirmative action are not mutually exclusive concepts designed to :impale an employer
upon the horns of a dilemma, but are wholly consistent
and equally obtainable both in theory and in practice. The
theory is best understood by acknowledgement of the fact
that de facto discrimination permeates American society
despite our successes in combatting de jure discrimination. Thus, although an employer may not seek to discriminate, neutral employment policies may have the effect of
discriminating against minorities. For instance, the recruitment policies of an employer determined not to discriminate may in the actual selection of job applicants
have the effect of excluding minority persons unless a conscious effort is made to give the minority community notice of outstanding job vacancies. If this is not done,
minority applicants will not appear to seek employment,
and the employer will have no opportunity to place his
nondiscriminatory selection policy into effect. In this situation, taking affirmative steps to broaden the recruitment
base is wholly consistent with the employer's nondiscrimination obligation. 91
Similarly, in 1973, in an opinion issued by the First Circuit Court of
91.
Nash, Affirmative Action Under Executive Order 11,246, 46 N.Y.U.L
225, 230 (1971).
REV.
1980]
AFFIRMATIVE ACTION
Appeals in Associated General Contractorsof Massachusetts,Inc.
v. Altshuler,92 it was noted:
our society cannot be completely colorblind in the short
term if we are to have a colorblind society in the long term.
After centuries of viewing through colored lenses, eyes do
not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new
opportunities less accessible. Preferential treatment is
one partial prescription to remedy our society's
most in93
transigent and deeply rooted inequalities.
Views such as these, in favor of affirmative action, were
widely, albeit sometimes grudgingly, accepted by many employer
and union officials during the late nineteen sixties and early
nineteen seventies. In the regulations issued by the Office of Federal Contract Compliance (OFCC), 41 C.F.R. § 60-2.10(B) (otherwise known as "Revised Order No. 4"), an "affirmative action
program" was defined as
[a] set of specific and result-oriented procedures to which
a contractor commits himself to apply every good faith effort. The objective of those procedures plus such efforts is
equal employment opportunity. Procedures without effort
to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate. An acceptable affirmative action program must
include an analysis of areas within which the contractor is
deficient in the utilization of minority groups and women,
and further, goals and timetables to which the contractor's
good faith efforts must be directed to correct the deficiencies and, thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his
94
work force where deficiencies exist.
It was pursuant to these regulations that scores of affirmative action programs, designed to increase and improve minority job opportunities, were adopted during the 1960s and early 1970s.
At about the same time when programs for affirmative action
were being developed to cure problems of discrimination in employment, similar programs were being adopted by institutions of
higher education to increase minority enrollment in formerly allwhite universities and colleges.9 5 Minorities, who had-for the entire history of the United States-been systematically excluded
92.
93.
94.
490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957 (1974).
Id. at 16.
41 C.F.R. § 60-2.10(B) (1979).
95. See generally H. Edwards & V. Nordin, HIGHER EDUCATION AND THE LAW
475-535 (1979).
CREIGHTON LAW REVIEW
[Vol. 13
from the most prestigious institutions of higher education, demanded entry in order to enhance their educational training and
facilitate placement in superior jobs. The protests of civil rights
activists, coupled with some "prodding" from the Department of
Health, Education and Welfare, caused a number of major universities (such as Harvard, Columbia, Michigan and Berkeley) to begin to open their doors to minorities during the late 1960s. 96 As
with the affirmative action programs in employment, affirmative
action in higher education received widespread, albeit sometimes
grudging, acceptance in many colleges and universities during the
late 1960s and early 1970s.
Strong resistance to affirmative action began to grow during
the mid-1970s, especially during the increasing periods of economic recession.9 7 As the competition for jobs increased, many
nonminority persons expressed anger and bitterness over the loss
of work that they believed-often erroneously-was being given to
minorities under affirmative action programs. Likewise, a number
of nonminority students, who felt that they were being denied admissions to prestigious professional schools due to the existence of
affirmative action in favor of minorities, viewed their rejections as
"reverse discrimination." These students, not surprisingly, assumed that they would be seriously disadvantaged in the job market because of the loss of a preferred educational opportunity.
The net effect of these clashes-between white workers and
students who felt victimized by "reverse discrimination" and
blacks and other minorities who believed that the oppressive
weight of long-standing patterns of racial discrimination would
never be removed without "affirmative action"-was a pronounced
escalation in hostilities between races. No relief for this problem
could be found in the opinions that were issued by the Supreme
Court during the mid-1970s. The cutbacks in employment discrimination law that came with the decisions in Teamsters v. United
States,98 Franks v. Bowman TransportationCo.,99 Washington v.
Davis,10 0 and General Electric Co. v. Gilbert,'0 ' had no direct bearing on the affirmative action/reverse discrimination debate. Affirmative action under Executive Order 11246 was required of
government contractors without regard to proof of discrimination
96. See, e.g., Harvard College admissions program ("Harvard Plan") (cited in
University of Cal. Regents v. Bakke, 438 U.S. 265, 315-17 (1978)).
97. See generally Edwards, Race Discrimination in Employment: What Price
Equality?, 1976 ILL. L.F. 572.
98. 431 U.S. 324 (1977).
99. 424 U.S. 747 (1976).
100. 426 U.S. 229 (1976).
101. 429 U.S. 125 (1976).
1980]
AFFIRMATIVE ACTION
proscribed under Title VII. A number of lower federal courts had
held that since the federal government had a "vital interest in assuring that the largest possible pool of qualified manpower be
available for the accomplishment of [federal] projects,"' 10 2 the affirmative action obligation under Executive Order 11246 was justified as an exercise of the Executive's procurement powers. 10 3 A
number of decisions had also ruled that Title VII "cannot be construed as limiting Executive authority in defining appropriate affirmative action on the part of a contractor."' 1 4 Since Teamsters,
Franks,Gilbert and Davis did not purport to address these questions, the affirmative action obligation continued to survive even
during the period when the Supreme Court appeared to be cutting
back the substantive sweep of antidiscrimination law under Title
VII and the Civil Rights Act of 1871.
The first significant legal attempt to resolve the affirmative action/reverse discrimination issue came with the case of Regents of
10 5
the University of Californiav. Bakke.
In Bakke the Medical School of the University of California at
Davis developed two admissions programs to fill its 100 openingsa regular admissions program, under which eighty-four students
were admitted, and a special admissions program for economically
or educationally disadvantaged minorities, under which sixteen
students were admitted. A California trial court found that the
special admissions program operated as a racial quota because it
foreclosed whites from competition for the sixteen spaces. Minority applicants considered under the special program were rated
only against one another. The trial court concluded that the consideration of race as a factor in making admissions decisions violated the California Constitution, the equal protection clause of the
fourteenth amendment, which states: "[N] or shall any State...
deny to any person within its jurisdiction the equal protection of
the laws,"'10 6 and Title VI of the Civil Rights Act of 1964,107 which
102. Contractors Ass'n v. Secretary of Labor, 442 F.2d 159, 171 (3rd Cir. 1971).
103. Id. For the text of the "Philadelphia Plan," see [1972] 1 EMPL. PRACT. GUIDE
(CCH) $ 1708.
104. Contractors Ass'n v. Secretary of Labor, 442 F.2d 159, 173 (3rd Cir. 1971). See
also Builder's Ass'n v. Oglivie, 327 F. Supp. 1154, 1158-59 (S.D. Inl. 1971); Joyce v.
McCrane, 320 F. Supp. 1284, 1290-91 (D.N.J. 1970); Ethride v. Rhodes, 268 F. Supp. 88,
88 (S.D. Ohio 1967); Weiner v. Cuyahoga Community College, 15 Ohio Misc. 289,
9
238 N.E.2d 839, 844 (1968), affd mem., 19 Ohio St. 2d 35, 249 N.E.2d 907, cert. denied,
396 U.S. 1004 (1969).
105. 438 U.S. 265 (1978). The summary of Bakke that follows was taken from
Edwards, PreferentialRemedies and Affirmative Action in Employment in the Wake
of Bakke, 16 CORNELL U. INDUS. & LAB. REL. REP. 7-9 (1979).
106. U.S. CONST. amend. XIV.
107. 42 U.S.C. § 2000d (1976).
CREIGHTON LAW REVIEW
[Vol. 13
states: "No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving federal financial assistance."
On review, the California Supreme Court affirmed the determination that the Davis special admissions program violated the
equal protection clause. The Court also ordered Allan Bakke's admission to Davis because the University of California failed to
demonstrate that Bakke, absent the special program, would not
have been admitted to Medical School.
When the case reached the United States Supreme Court, the
principal issue was whether an institution of higher education, using selective admissions criteria, could adjust its admissions program to give explicit preference to qualified members of identified
racial or ethnic groups who would otherwise be denied admission.
In a 5-4 decision, the United States Supreme Court held that the
Davis special admissions program was unlawful. However, the
Court reversed the judgment of the California Supreme Court insofar as it prohibited Davis from taking race into account as a factor in future admissions decisions.
In reaching these results, Justice Powell provided the swing
vote for the Court. Justice Powell sided with Justices Stevens,
Stewart, Rehnquist, and Burger in declaring the Davis special admissions program to be illegal and in upholding the order requiring Davis to admit Mr. Bakke to Medical School. However, Justice
Powell sided with Justices Brennan, Marshall, White, and Blackmun in reversing the California Supreme Court judgment that race
could not be used as a factor in university admissions.
Although the opinion of Justice Powell may have been only
the bottom line and not the final word on questions having to do
with the legality of affirmative action and preferential remedies,
his opinion was viewed by many as highly significant because it
provided the "swing vote" in Bakke. According to Justice Powell,
race-conscious admissions programs were permissible in at least
two circumstances: (1) to ameliorate the effects of identified past
discrimination; or (2) to achieve racial or ethnic diversity on campus. Under the first category of cases, Justice Powell said that a
racial quota, of the type employed by Davis, could only be constitutionally justified if it satisfied a compelling governmental purpose,
such as the eradication of proven discrimination within an institution. However, Justice Powell cautioned that a racial classification
that "aids persons perceived as members of relatively victimized
1980]
AFFIRMATIVE ACTION
groups at the expense of other innocent individuals"'10 8 can be
found to violate the equal protection clause "in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations."' 0 9
However, under the second category of cases, Justice Powell
made it clear that, at least in the academic context, universities
could, in the name of academic freedom, "take race into account in
achieving the educational diversity valued by the First Amendu 0
ment.""
Thus, Justice Powell said that "in . . .an admissions
program, race or ethnic background may be deemed a 'plus' in a
particular applicant's file""' so long as persons who benefit from
race-as-a-plus are not insulated from comparison with all other
candidates.
The four Justices in the Brennan group in Bakke-only one
short of a majority-indicated that racial quotas and voluntary efforts at affirmative action were constitutionally permissible to
eradicate past societal discrimination. Therefore, it became clear
that if even one of the Justices from the Stevens group (which declined to deal with the constitutional questions posed in Bakke)
lined up with the Brennan group in future cases, the bottom line
for affirmative action would move up significantly.
THE WEBER CASE: THE SEMING
In 1977, several months prior to the Supreme Court's judgment
in Bakke, the question of the legality of the affirmative action obligation under Executive Order 11246 was decided by the Fifth Circuit in Weber v. Kaiser Aluminum & Chemical Co." 2 The Weber
case arose under Title VII on a charge of "reverse discrimination,"
and it involved a one-to-one minority/nonminority ratio for selection to an on-the-job training program. Dual seniority lists, one for
whites and one for minorities, were developed to govern the selection process. The plan was contained in the collective bargaining
agreement between Kaiser and the Union. The plan was adopted
by the company and union in an effort to comply with the Executive Order. 113 The Fifth Circuit ruled that the affirmative action
plan violated Title VII since it discriminated against whites and
since Kaiser had not been shown to be guilty of past discrimina108.
109.
110.
111.
112.
113.
438 U.S. at 307.
Id.
Id. at 316.
Id. at 317.
563 F.2d 216 (5th Cir. 1977).
Id. at 218-19.
CREIGHTON LAW REVIEW
[Vol. 13
tion. 114
When the Supreme Court granted certiorari in Weber, the case
took on immense importance. United Steelworkers of America v.
Weber1 15 offered a vehicle for at least a partial resolution of the
affirmative action/reverse discrimination debate that was left in
such a muddled state after Bakke. Since it appeared that the case
would be decided within one year of Bakke, there was also some
hope that the Supreme Court would furnish an opinion that would
help to curb the racial tensions that had grown during the nineteen
seventies.
Weber, like Bakke, was seen as a case of tremendous symbolic
significance. For one thing, blacks had continued to suffer economic deprivation caused by high unemployment, high levels of
poverty and income disparities during the nineteen seventies, despite the promises of gain that had come with the enactments of
civil rights legislation during the nineteen sixties. For another
thing, the Supreme Court had issued several important decisions
which appeared to narrow and limit the substantive reach of Title
VII. In addition, the conservative political climate in the United
States made the civil rights movement much less effective during
the 1970s than it had been during the 1960s. It was against this
background that Weber took on such great significance. "Affirmative action," i.e. an employer's promise of a "good faith effort.., to
achieve prompt and full utilization of minorities ...
at all levels
1 16
and in all segments of his work force where deficiencies exist,"
was seen by many to be one of the last real hopes for equal opportunity in employment.
Realistically, voluntary affirmative action-which was at issue
in Weber-promises very little. Nevertheless, it seemed unimaginable to most blacks and other minorities that the Supreme Court
would accept a proposition forbidding employers and unions from
acting voluntarily and in good faith to achieve prompt and full utilization of minorities in the employment market-especially at a
time when the principle of equal opportunity appeared to be in serious jeopardy. All things considered, at least from the minority
perspective, at the time when the case reached the Supreme
Court, the last thing that the country needed was a victorious
"Great White Hope"1 17 in the form of Brian Weber. In other words,
a strong argument can be made that nonminorities had a lot less to
114. Id. at 224-27.
115. 99 S. Ct. 2721 (1979).
116. 41 C.F.R. § 60-2.10 (1979) (otherwise known as Revised Order No. 4).
117. This title comes from a play of the same name, written by Howard Sackler,
portraying the life of Jack Johnson, who was the first black world heavyweight box-
1980]
AFFIRMATIVE ACTION
win than minorities had to lose if Brian Weber prevailed before the
Supreme Court. 1 8
THE WEBER DECISION: THE REAFFIRMATION OF
AFFIRMATIVE ACTION
THE FACTS IN WEBER
The affirmative action plan in Weber was the product of a 1974
collective bargaining agreement between Kaiser Aluminum and
Chemical Corporation (Kaiser) and the United Steelworkers of
America (USWA). The voluntarily-adopted plan was designed to
alleviate persisting effects of earlier exclusion of blacks from
skilled craft jobs at Kaiser plants. Pursuant to the plan, Kaiser established a craft training program at its Gramercy, Louisiana plant,
with trainees chosen from among unskilled plant workers. Fifty
percent of the openings in the training program were reserved for
minority employees; otherwise, selection was on the basis of plant
seniority. The plan was designed to be temporary, with the 50-50
black/white ratio continuing until the percentage of black skilled
craft workers in the plant was approximately equal to the percentage of blacks in the Gramercy area labor force. 119 The Kaiser plan
did not require or result in the displacement of white employees
by blacks, nor did it alter any existing seniority systems.
It is clear from the judicial opinions in Weber that Kaiser and
the USWA did not negotiate their disputed affirmative action plan
to satisfy some vague sense of social justice. At the time when the
plan was adopted, blacks in the Gramercy area were still adversely
affected by the years of discrimination that preceded the Civil
Rights Act of 1964; the Kaiser plan was an attempt to remedy those
effects.
There is little question that craft unions had long excluded
blacks.' 20 Prior to 1974, the year in which Kaiser adopted its plan,
ing champion. He reigned as champion from 1908 until 1915. The play is published
in H. SACKLER, THE GREAT WHITE HOPE (1968).
118. It is interesting to note that after the Bakke decision several institutions of
higher education announced that they were going out of the business of affirmative
action. However, following the Weber decision, it is noteworthy that there have
been no significant announcements by private employers indicating the adoption of
voluntary affirmative action programs.
119. 99 S. Ct. at 2725.
120. The Court, in a footnote, takes judicial notice of this traditional exclusion.
Id. at 2725, n.1. Black exclusion from craft unions is clearly illustrated by the following table:
CREIGHTON LAW REVIEW
[Vol. 13
the company had hired its craft labor from among the pool of experienced craft workers in the area. Because blacks were underrepresented in the craft unions, there were few qualified to take on
the skilled work at Kaiser. As a consequence, although blacks constituted nearly forty percent of the Gramercy area labor force, less
than two percent of the skilled craft workers at the plant were
program
black. 121 Under these circumstances, no neutral hiring
1 22
could easily undo the effects of past discrimination.
Even a neutral in-plant training program would have been inadequate to cure the problem of past discrimination. Less than
fifteen percent of the workers at the Gramercy plant were memBLACK MEMBERSHIP IN SELECTED CRAFT UNIONS, 1967 and 1972,
AND BLACK EMPLOYMENT IN SELECTED CRAFTS, 1890
International union
(short name)
Carpenters
Painters
Bricklayers
Plasterers
Electricians
Common Laborers
Sheet Metal Workers
All reporting building
trades (including
Laborers)
All reporting referral
unions
(1)
(2)
(3)
Black membership Black membership Black employment
as percentage of
as percentage of
as percentage of
total membership total membership total employment
1890
1967
1972a
3.7
4.9
9.7
16.0
2.6
29.1
1.1
1.6
3.7
9.6
14.0
0.6
30.5
0.2
3.6
2.0
6.1
10.3
0.0
20.0
1.2
8.3
8.4
_d
10.6c
9.7
_d
a. Most statistics are preliminary.
c. 1970 statistics.
d. Not available.
Sources: Col. 1:1972 figures are from U.S., Equal Employment Opportunity
Commission, News Release, June 30, 1974,. . . [excluding figures I for Printing Pressmen. The 1972 figure for Printing Pressmen and the 1970 figures
were supplied directly by EEOC. Col. 2 and 3: Orley Ashenfelter, Racial
Discrimination and Trade Unionism, 80 J. POLITICAL ECON. 444 (1972).
Ashenfelter obtained these figures from an EEOC publication and from the
Bureau of the Census report on the 1980 census.
U.S. COMMISSION ON CrVIL RIGHTS, THE CHALLENGE AHEAD: EQUAL OPPORTUNITY IN
281 (1976).
121. Of 273 workers, 5 (1.8%) were black. 99 S. Ct. at 2725.
122. Indeed, at trial, Kaiser claimed to have "vigorously sought" black
craftsmen from the community. However, their efforts were almost entirely unsuccessful. Weber v. Kaiser Aluminum and Chem. Corp., 415 F. Supp. 761, 764 (E.D. La.
1976).
REFERRAL UNIONS
AFFIRMATIVE ACTION
19801
bers of minority groups. 1 23 Had Kaiser pursued a neutral, in-plant
plan, the craft departments would have reflected the underrepresentation of minorities in the plant, just as they had reflected
underrepresentation in the craft unions. When Weber's case was
tried, Kaiser maintained that it had always hired on a nondiscriminatory basis at the Gramercy plant and the issue of past racial discrimination against blacks was never clearly resolved by the
Weber litigation. This may explain why the Supreme Court chose
to treat the Kaiser plan as if it had been adopted solely to "eliminate manifest racial imbalances in traditionally segregated job categories."' 24
THE HOLDING IN WEBER
The District Court for the Eastern District of Louisiana found
that the Kaiser-USWA plan violated sections 703(a) 125 and
703(d) 126 of the Civil Rights Act of 1964 and, therefore, enjoined
Kaiser and the union from denying Weber and members of his
class access to the on-the-job training programs that had been developed pursuant to the affirmative action plan. 12 7 The Fifth Circuit affirmed, holding that all preferences based on race violated
128
Title VII.
The question before the Supreme Court was whether racial
preferences, adopted voluntarily to "eliminate traditional patterns
of segregation,"'129 were forbidden by Title VII. The Court held, in
a 5-2 decision, that the Kaiser plan was not proscribed by the
act. 130 Justice Brennan, writing for the Court, explained that one
of Congress' clear concerns in enacting Title VII had been the
problem of black unemployment. He reasoned that in light of the
relevant legislative history, it would be incongruous to read sections 703(a) and (d) in Title VII as prohibiting voluntary preferences of the kind found in Weber.' 3 1 Such voluntary programs
were therefore found to be consistent with the statutory goal of
Title VII.
123.
Weber v. Kaiser Aluminum and Chem. Corp., 415 F. Supp. 761, 764 (E.D. La.
1976).
124.
125.
126.
127.
99 S. Ct. at 2725.
42 U.S.C. § 2000e-2(a) (1972).
Id. § 2000e-2(d).
Weber v. Kaiser Aluminum and Chem. Corp., 415 F. Supp. 761, 770 (E.D. La.
1976).
128.
1978).
129.
130.
131.
Weber v. Kaiser Aluminum and Chem. Corp., 563 F.2d 216, 227 (5th Cir.
99 S. Ct. at 2726.
Id. at 2730.
Id. at 2727-30.
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[Vol. 13
. Justices Stewart, White, Marshall, and Blackmun joined in the
Court's opinion, with Justice Blackmun filing a separate concurring opinion. Chief Justice Burger dissented, and Justice Rehnquist issued a dissenting opinion in which the Chief Justice also
joined. Justices Stevens and Powell did not take part in the case.
It should be noted that the analysis employed by the Supreme
Court in Weber to determine the legality of a voluntary affirmative
action plan is quite different from the analysis that would be employed by a court to determine whether affirmative action is necessary to remedy a violation of Title VII. A court must find evidence
of illegal discrimination before it can order preferential hiring
under Title VII; it cannot remedy the lingering effects of pre-Act
discrimination apart from proven discrimination which has occurred since the effective date of Title VII.1 3 2 Thus, an imbalance
between the percentage of minorities in an employer's work force
and the percentage of minorities in the available work force will
usually only make out a prima facie case of discrimination under
Title VII, which an employer may rebut. 133 In Weber the trial court
found no evidence of illegal discrimination, even though there was
134
a clear imbalance in minority versus nonminority employment.
If the issue of race discrimination against blacks had been fully
litigated, Kaiser might have been exonerated and the court would
have been powerless under Title VII to order preferential hiring.
Yet, Kaiser had adopted an affirmative action plan, arguably pursuant to Executive Order 11246, which was subject to a charge of
"reverse discrimination." Weber thus plainly addresses the question whether an employer may act voluntarily to eliminate manifest racial imbalances in traditionally segregated job categories in
situations where a court may be helpless to act because there is no
provable "discrimination" under Title VII.
THE OPINION BY JUSTICE BRENNAN
Those who favor affirmative action will applaud the decision of
the Court in Weber upholding voluntary affirmative action programs. Weber appears to be a sincere attempt by the Court to find
a workable solution to the affirmative action/reverse discrimina132. See generally Hazelwood School Dist. v. United States, 433 U.S. 299 (1977);
International Bhd. of Teamsters v. United States, 431 U.S. 324, 356 (1977); United
States v. Chesapeake and Ohio Ry. Co., 471 F.2d 582, 587 (4th Cir.), cert. denied, 411
U.S. 939 (1973); 42 U.S.C. § 2000e-5(g) (1976).
133. Hazelwood School Dist. v. United States, 433 U.S. 299, 309-13 (1977). See
also Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); International Bhd. of Teamsters
v. United States, 431 U.S. 324, 336-38 (1977).
134. 415 F. Supp. at 764.
1980]
AFFIRMATIVE ACTION
tion dilemma. Whereas Bakke appeared useless as a legal precedent to many scholars, 13 5 Weber at least offers a clear decision on a
difficult issue.
The sensitivity of the Court in Weber to the continuing plight
of minorities in the work force is encouraging; unfortunately, the
rationale underlying the majority opinion is lacking. It is easy
enough for those who favor affirmative action to simply applaud
the result in Weber without regard to how it was achieved. The
problem with this is that Justice Brennan's opinion is sufficiently
lacking in several respects so as to invite attacks from those who
are hostile to affirmative action. 136 In fairness to Justice Brennan,
it should be recognized that, although his sometimes fragile logic
actually serves to enhance the dissenting opinions of Chief Justice
Burger and Justice Rehnquist, it may be that the opinion written
by Justice Brennan was the best that could be done to hold the
votes of the five Justices who made up the majority in Weber. The
one bright spot in Weber is the concurring opinion by Justice
Blackmun. The opinion by Justice Blackmun succeeds in constructing a more palatable rationale for the result in Weber, thus
salvaging for it a certain amount of force and value.
The mistakes in the majority opinion are twofold. First, Justice Brennan's reliance on the legislative history leading to the enactment of Title VII in 1964 is plainly misplaced. The
Congressional debates preceding the original law simply do not
support the conclusion reached by the majority in Weber. Justice
Brennan totally ignores the more favorable legislative history leading to the 1972 amendments to Title VII which shows that several
attempts to outlaw affirmative action programs were voted down in
137
both houses of Congress.
Second, and more important, the majority opinion in Weber
too easily concedes that Kaiser's affirmative action plan was covered by the literal language prohibiting discrimination under Title
VII. It was not at all clear that Kaiser, in preferring blacks over
whites to remedy manifest racial imbalance attributable to traditional patterns of racial segregation, could be seen to be covered by
the proscription against "discrimination" under Title VII.
135. Blasi, Bakke as Precedent: Does Mr. Justice Powell Have a Theory?, 67 CAL.
L. REV. 21, 30-61 (1979).
136. E.g., Buckley, Double Thought, 31 NATIONAL REVIEW 990 (1979); Cohen, Justice Debased. The Weber Decision, COMMENTARY, Sept. 1979, at 43; Matchfor Houdini, FORTUNE, July 30, 1979, at 49. See also Cohen, Why RacialPreference is Illegal
and Immoral, COMMENTARY, June 1979, at 40.
137. See notes 152-70 and accompanying text infra.
CREIGHTON LAW REVIEW
[Vol. 13
JUSTICE BRENNAN'S MISPLACED RELIANCE ON THE LEGISLATIVE
HISTORY OF TITLE VII
In drawing on the legislative history of Title VII, Justice Brennan relies heavily on statements made by Senators Clark,
Humphrey, and Kennedy that the primary purpose of the Act was
to alleviate the problem of black unemployment.138 From this, he
reasons that it would be irrational to read sections 703(a) 13 9 and
703(d) 140 as prohibiting race-conscious remedial action by an employer. 14 1 To reinforce this interpretation, Justice Brennan focuses on section 703(j) of Title VII, 1' which states that nothing in
Title VII "shall be interpreted to require any employer ... to grant
preferential treatment to any individual or to any group because of
...race... on account of an imbalance which may exist with respect to the total number or percentage of persons of any race...
employed by any employer .... ",143 Justice Brennan argues that
this section, by use of the word "require," addresses only
mandatory preferential hiring, and that the absence of the word
"permit" in section 703(j) indicates that Congress did not intend to
prohibit voluntary affirmative action. 144
In spite of Congress' undisputed concern with black unemployment, Justice Brennan's reliance on the cited legislative history, coupled with section 703(j), is clearly misplaced and it makes
his task of writing the majority opinion an almost impossible one.
Justice Rehnquist, drawing upon the same legislative history, con138. 99 S.Ct. at 2727-28.
139. 42 U.S.C. § 2000e-2(a) (1976) reads:
It shall be an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or to otherwise 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 individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color, religion,
sex, or national origin.
Id.
140. 42 U.S.C. § 2000e-2(d) (1976) reads:
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.
Id.
141.
142.
99 S. Ct. at 2728.
42 U.S.C. § 2000e-2(j) (1976).
143.
Id.
144.
99 S. Ct. at 2729.
19801
AFFIRMATIVE ACTION
cludes that Congress intended all preferences based on race, remedial or not, to be illegal. 145 In his dissent, Justice Rehnquist
quotes statements made by Senators Clark and Humphrey to the
effect that Title VII would make race irrelevant,1 46 apparently contradicting the intent that Justice Brennan inferred.
Furthermore, Justice Brennan is clearly side-tracked by his
reference to section 703(j). Sections 703(a) and (d), which prohibit
discrimination in terms and conditions of employment (including
participation in craft training programs), raise the essential issue
to be decided in Weber. Even if it is true that section 703(j) does
not deal with voluntary, private preferences, the Court still had to
decide whether voluntary efforts at affirmative action violated the
proscriptions against discrimination found in sections 703(a) and
703(d). Chief Justice Burger makes this precise point in his dissent. 147 The meaning of sections 703(a) and (d) must therefore
control the validity of the Kaiser plan and others like it.
It is tempting to pursue the legislative history, as was done by
the majority and dissenting opinions; yet such a search must be
fruitless. The 1964 legislative history is plainly silent on the subject of voluntary, private preferential remedies. The issue, quite
simply, was never contemplated in 1964, or before. Indeed, even
Justice Rehnquist virtually concedes this in his dissent when he
observes that "[n]ot once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill
would allow employers voluntarily to prefer racial minorities over
white persons. ' 148 What Justice Rehnquist recognizes is that voluntary affirmative action was not even within the realm of comprehension, much less consideration, during the Congressional
debates leading to the 1964 law. Nevertheless, Justice Rehnquist
concludes that it would be "preposterous" to interpret sections
703(a) and (d) to permit voluntary affirmative action because, in
his view, the 1964 Act was plainly intended to mandate absolute
colorblindness. 149 However, his is not the only, nor even the most
plausible inference that can be drawn from Congress' inattention
to voluntary preferences. 15°
145. Id. at 2752.
146. Id. at 2744-45.
147. Id. at 2735.
148. Id. at 2748.
149. Id. at 2748-49.
150. See also University of Cal. Regents v. Bakke, 438 U.S. 265 (1978). Justice
Powell, discussing Congressional intent and Title VII of the Act, states, "[t]here
simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with
the real and pressing problem of how to guarantee those citizens equal treatment."
CREIGHTON LAW REVIEW
[Vol. 13
It is surely possible that few, if any, members of Congress
imagined in 1964 that it might be necessary someday to resort to
voluntary preferences to undo the effects of earlier discrimination.
It is therefore difficult to attribute an intention of absolute colorblindness to a Congress that could not foresee all possible situations. Indeed, it is not even clear that Congress contemplated the
result in Griggs v. Duke Power Co., l s l where facially neutral employment tests, administered in complete good faith, were found to
be discriminatory because of their disproportionate effects on minority members and unrelatedness to job performance.
If Justice Brennan felt constrained to rely on legislative history, he probably should have made at least a passing reference to
the congressional debates preceding the 1972 amendments to Title
VII. During these debates, several attempts were made to proscribe affirmative action. These proposals were defeated and, although the debates are in many ways inconclusive, they mark
Congress' first significant discussion of affirmative action in connection with the prohibition against employment discrimination
under Title VII. However ambiguous the debates are, they also illustrate that Congress had never before fully dealt with the question of preferential remedies. Furthermore, as will be indicated
below, the vote on each proposed amendment makes it clear that
Congress had no intention of outlawing affirmative action especially as required by Executive Order 11246.
In 1971 an amendment to Title VII, introduced in the House of
Representatives as H.R. 1746, was offered with a purpose to give
the Equal Employment Opportunity Commission (EEOC) the
power to issue "cease and desist" orders upon findings of Title VII
violations. 5 2 The EEOC, created by the 1964 Act, had been originally granted only investigatory and conciliatory powers. The
sponsors of the amendment argued that the agency would be better equipped than the courts to handle the often complex employment discrimination suits. The House Committee on Education
and Labor, in recommending passage of the bill, noted that employment discrimination had turned out to be a "far more complex
and pervasive phenomenon" than the 1964 Congress had under153
stood.
A second major provision of H.R. 1746 would have transferred
Id. at 285. Cf. National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 649-50 (1967)
(point number 5 of the memorandum of Justice Harlan regarding the significance to
be attributed to "an opaque legislative record").
151. 401 U.S. 424 (1971).
152. H.R. 1746, 92d Cong., 1st Sess., 117 CONG. REC. 31960-61 (1971).
153. H.R. REP. No. 238, 92d Cong., 1st Sess., 8 (1971).
19801
AFFIRMATIVE ACTION
to the EEOC all of the powers and duties possessed by the Office
of Federal Contract Compliance (OFCC) under Executive Order
11246. The Executive Order required that all contracts with the
federal government include a provision requiring the contractor to
take affirmative steps toward nondiscriminatory hiring, promotion,
training and pay of employees. 154 The OFCC, through the Secretary of Labor, was charged with the administration of the Executive Order. The sponsors of H.R. 1746 believed that through
consolidation of Title VII and Executive Order enforcement authority, the similar purposes of each could be more easily attained.5l
Upon the introduction of H.R. 1746 to the full House, Representative Dent introduced a number of amendments, one of which
would have prevented the EEOC from ordering or requiring preferential remedies. 56 The proposed amendment was evidently a
response to the Third Circuit's decision in Contractor'sAssociation
of Eastern Pennsylvania v. Secretary of Labor'5 7 upholding an
OFCC requirement of a contract provision establishing minority
hiring goals. 5 8 Much of the debate, therefore, concerned the effect
of the Dent amendment on EEOC authority to design provisions
159
similar to the "Philadelphia Plan" of Contractor'sAssocation.
The Dent amendment produced no debates with respect to the
legality of preferential remedies or quotas issued to remedy violations of Title VII. Such remedies had been ordered by the courts
prior to 1972 but these cases always involved circumstances of
proven violations of Title VII. 1 60 Thus, the members of Congress
who opposed the affirmative action requirement under the Executive Order may have been satisfied that no such requirement could
be imposed under Title VII because of section 703(j). In other
words, the opponents to affirmative action may have believed in
1972 that affirmative action was impermissible under Title VII in
the absence of proven discrimination and, therefore, their primary
154. 41 C.F.R. § 60-2.10 (1979) (otherwise known as Revised Order No. 4).
155. H.R. REP. No. 238, 92d Cong., 1st Sess., 15 (1971).
156. 117 CONG. REC. 31783-84 (1971).
157. 442 F.2d 159 (3d Cir. 1971).
158. Id. at 171.
159. 117 CONG. REC. 31965, 32099-32100 (1971) (remarks of Rep. Erlenborn); id. at
31966 (remarks of Rep. Hawkins); id. at 31970 (191) (remarks of Rep. Steiger); id. at
31975 (remarks of Rep. Pucinski); id. at 31975 (remarks of Rep. Dent); id. at 32091
(remarks of Rep. Ford).
160. See, e.g., United States v. Ironworkers Local 86, 443 F.2d 544, 552-54 (9th Cir.
1971); Carter v. Gallagher, 452 F.2d 315, 330-31 (8th Cir. 1971) (en banc), cert. denied,
406 U.S. 950 (1972); United States v. Electrical Workers Local No. 38,428 F.2d 144, 151
(6th Cir.), cert. denied, 400 U.S. 939 (1970).
CREIGHTON LAW REVIEW
[Vol. 13
focus was on affirmative action required under Executive Order
11246.
Ultimately, the Dent amendment was defeated, 161 despite
warnings that failure to pass it could result in more quotas and
more affirmative action. 6 2 Four months later the issue was addressed in the Senate. 163 Senate bill 2515 was essentially the same
as H.R. 1746, in that it was intended to grant the EEOC authority to
enforce both Title VII and the Executive Order. 164 Senator Ervin
introduced at different times two amendments to the Senate bill,
each designed to prevent any agency from requiring preferences
pursuant to Title VII or to Executive Order 11246.165 The amendments were aimed at the "Philadelphia Plan" established by the
OFCC, upheld in Contractor'sAssociation.16 6 Senator Javits perceived Senator Ervin's first amendment as an attack on "the whole
concept of 'affirmative action' as it has been developed under Ex167
ecutive Order 11246 and as a remedial concept under Title VII."'
The Senate subsequently defeated the amendment. 68
Senator Ervin, undaunted, introduced a narrower amendment
three weeks later, which would have expanded section 703(j) of
Title VII to prohibit preferences required pursuant to executive orders. 169 Although the amendment would have had no effect on Title VII remedies, it was defeated after only a few minutes of
70
debate.
161. 117 CONG. REc. 32111-12 (1971).
162. Id. at 32089-90 (1971) (remarks of Rep. Dent); id. at 32091 (1971) (remarks of
Rep. Green).
The Representatives were not voting simply on the Dent amendment; in voting
it down, they voted in a substitute to the proposed H.R. 1746, the Erlenborn substitute. The substitute bill did not give the EEOC cease and desist powers, nor did it
transfer OFCC power. It simply empowered the EEOC to bring suits against those
whose employment practices violated the Act. H.R. REP. No. 9247, 92d Cong., 1st
Sess., 117 CONG. REc. 20622 (1971), reprinted in SUBCOMMrrrEE ON LABOR, SENATE
COMMIrrEE ON LABOR AND WELFARE, 92D CONG., 1ST SESS., LEGISLATIVE HISTORY OF
1972, 141 (Comm. Print 1972). Subsequent debate tended to center on those basic differences in the proposed amendments, making it clear what exactly the Representatives were voting on. 117 CONG.
REC. 32092 (1971) (remarks of Rep. O'Hara); id. at 32096-97 (remarks of Rep. Abzug);
id. at 3097 (remarks of Rep. McCulloch).
163. S. REP. No. 2515, 92d Cong., Ist Sess. (1972).
164. S. REP. No. 415, 92d Cong., 1st Sess. (1972).
165. 118 CONG. REC. 1493, 1662 (1972); id. at 4817.
166. Id. at 1663 (remarks of Sen. Ervin).
167. Id. at 1664 (remarks of Sen. Javits).
168. Id. at 1676.
169. Id. at 4917. Amendment No. 907 would have expanded section 703(j) of Title VII to prohibit any preferences ordered or required pursuant to Executive Order
11246. It, of course, would have had the effect of undoing a remedy such as the
Philadelphia Plan.
170. Id. at 4918.
THE EQUAL EMPLOYMENT OPPoRTuNrrY ACT OF
1980]
AFFIRMATIVE ACTION
Most of the congressional debates leading to the 1972 amendments to Title VII centered on the meaning of affirmative action
under Executive Order 11246. As Weber is concerned primarily
with the legality of voluntary preferences under Title VII and not
under the Executive Order, little specific support is found for the
majority opinion in the debates over the 1972 amendments. However, the defeat of the amendments left intact the affirmative action obligation under Executive Order 11246. Although Congress
was presented with the clear opportunity to declare Executive Order 11246 preempted by Title VII in 1972, no such action was taken.
Thus, affirmative action, as required without proof of specific discrimination, remained in force under the Executive Order with no
indication that such affirmative action might be seen as violative of
the proscription against "discrimination" under Title VII. If nothing else, this history offers at least some implicit support for the
legality of voluntary affirmative action.
Furthermore, the legislative history preceding the 1972 law
strongly suggests that Congress had never given serious thought to
"affirmative action" prior to the passage of Title VII in 1964. This
reinforces the contention that the 1964 debates are not pertinent to
the question of the legality of remedial preferences, voluntary or
court-ordered, under Title VII.
Although it should have been clear in both Houses that failure
to pass the Dent and Ervin amendments would allow the courts
and OFCC to continue requiring affirmative action, opponents of
preferential remedies might argue that the amendments were superfluous insofar as they sought to forbid voluntary affirmative action under Title VII. Nevertheless, whether or not the 1972 debates
are the most fruitful source of implied support of affirmative action, Justice Brennan could have made more effective use of this
later legislative history. In relying on the 1964 history, Justice
Brennan only legitimates Justice Rehnquist's strained and often
irrelevant interpretations of congressional intent.
It seems clear that Congress has never really contemplated
the legality of voluntary affirmative action plans under Title VII;
thus, the legislative history is mostly irrelevant in Weber. It cannot be concluded from the legislative history that a plan such as
Kaiser's is either protected or prohibited under Title VII. Therefore, the relevant inquiry is the meaning of "discrimination" as
used in sections 703(a) and (d), ascertained without regard to the
1964 legislative history. It is not enough for opponents of affirmative action to argue that the 1964 Act prohibited "discrimination"
against whites; this begs the question.
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THE MEANING OF DISCRIMINATION
Justice Brennan's second mistake, which appears to be much
more significant than his misplaced reliance on legislative history,
is his ready assumption that the Kaiser affirmative action plan falls
within the compass of sections 703(a)1 71 and 703(d)1 72 of Title VII.
As the validity of voluntary preferences depends upon the interpretation of these sections, 73 Justice Brennan should have approached the issue on a firmer foundation. He more appropriately
could have found that Kaiser's giving of redress was not discrimination under the Act.
Chief Justice Burger points out that sections 703(a) and (d)
prohibit discrimination unambiguously 7 4 and, on this score, he is
correct. These sections do not allow discrimination "sometimes"
and Justice Brennan has to go out on a limb to argue that they do.
Justice Brennan overlooks an argument that refutes most objections to Kaiser's plan, and to voluntary preferences in general, i.e.
Kaiser's plan, being remedial, did not involve discrimination as
175
comprehended by Title VII.
The argument may seem counter-intuitive. After all, Kaiser
did prefer blacks over whites in filling its training program. Race
made a difference under the Kaiser plan. That simple fact might
bring Kaiser's plan within a broad definition of discrimination;but
it is not necessarily enough to find that the plan is discriminatory
under Title VII. Despite assertions to the contrary, 17 6 Title VII
does not make race irrelevant. 177 Indeed, in some circumstances
an employer may have to consider race in order to comply with the
Act. The "effects test" of Griggs v. Duke Power Co. 17 8 requires an
employer to consider the disproportionate impact of neutral employment tests on minority applicants. In light of Griggs, an employer using unvalidated employment tests can hardly afford to
ignore race.
The Court went a step further in Albemarle Paper Co. v.
171. 42 U.S.C. § 2000e-2(a) (1972).
172. Id. § 2000e-2(d).
173. See notes 139 & 140 supra; see text accompanying notes 138-46.
174. 99 S. Ct. at 2734-35 (Burger, CJ., dissenting).
175. See Brief for United States of America and the Equal Employment Opportunity Commission at 21-22, United Steelworkers of America v. Weber, 99 S. Ct. 2721
(1979).
176. See, e.g., 99 S. Ct. at 2736 (Rehnquist, J., dissenting); id. at 2735 (Burger,
C.J., dissenting). But see note 182 infra.
177. See generally University of Cal. Regents v. Bakke, 438 U.S. 265, 353 (1978)
(opinion of Brennan, White, Marshall, and Blackmun, JJ.).
178. 401 U.S. 424 (1971).
1980]
AFFIRMATIVE ACTION
Moody, 1 79 holding that because certain test scores might predict
job performance differently for minority than for nonminority
workers, an employer may be required to use "differential validity"
scales for each group. 180 Differential validation ensures that an
employment test will accurately predict job performance for members of each group. 18 1 Under Albemarle, an employer must accord
different treatment, based on race, to comply with Title VII; however, the different treatment is not seen as discrimination.
Mere race awareness does not invalidate Kaiser's plan. But
Kaiser did more; it made determinations based on race, to the detriment of white workers. Yet, even that should not have rendered
Kaiser's actions discriminatory.18 2 It has been often held that pref183
erential hiring is a permissible remedy for a Title VII violation.
Courts of appeals in eight circuits have approved preferences
given to minorities to cure wrongs wrought by illegal discriminatory practices. 184 Such remedial preferences are fully justified.
179. 422 U.S. 401 (1975).
180. Id. at 425-36.
181. Id. at 435. See also University of Cal. Regents v. Bakke, 438 U.S. 265, 364 n.37
(1978) (opinion of Brennan, White, Marshall, and Blackmun, JJ.).
182. Justice Rehnquist turns to language in earlier cases to show that Title VII
is to be applied even-handedly, prohibiting preferences for blacks or whites. 99 S.
Ct. at 2736. There is considerable support for the view that Title VII cuts both ways
in prohibiting discrimination. See, e.g., Furnco Const. Corp. v. Waters, 438 U.S. 567,
579 (1978); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973); Griggs v. Duke Power Co., 401
U.S. 424, 429 (1971). However, Justice Rehnquist fails to distinguish "discrimination" and "remedy." The majority opinion seems to do so, albeit perhaps obscurely.
In McDonald the Court emphasized that it was not considering the permissibility of
affirmative action programs, "judicially required or otherwise prompted," as a footnote to the assertion that Title VII prohibits discrimination against black or white.
427 U.S. at 280-81 n.8.
183. Cf. University of Cal. Regents v. Bakke, 438 U.S. 265, 353-55, n.28 (1978)
(opinion of Brennan, White, Marshall, and Blackmun, JJ.). Courts hold that their
broad equitable powers to remedy Title VII discrimination (granted by § 703(g), 42
U.S.C. § 2000e-5(g) (1972)) are not encumbered by the prohibition against preferences in section 703(j), and that they are therefore empowered to order preferential
remedies. See, e.g., Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 501 F.2d
622, 630-31 (2d Cir. 1974); United States v. Wood, Wire and Metal Lathers Int'l Union
Local 46, 471 F.2d 408, 413 (2d Cir.), cert. denied, 412 U.S. 939 (1973); United States v.
Electrical Workers Local No. 38, 428 F.2d 144, 149-50 (6th Cir.), cert. denied, 400 U.S.
943 (1970).
184. See, e.g., EEOC v. American Tel. & Tel. Co., 556 F.2d 167, 174 (3d Cir. 1977),
cert. denied, 438 U.S. 915 (1978); United States v. City of Chicago, 549 F.2d 415, 436
(7th Cir.), cert. denied, 434 U.S. 875 (1977); Crockett v. Green, 534 F.2d 715, 718 (7th
Cir. 1976); Watkins v. Scott Paper Co., 530 F.2d 1159, 1194 (5th Cir. 1976); Morgan v.
Kerrigan, 509 F.2d 599, 600-01 (1st Cir. 1975); Patterson v. Newspaper Deliverers'
Union, 514 F.2d 767, 772 (2d Cir. 1975); Boston Chapter, N.AA.C.P., Inc. v. Beecher,
504 F.2d 1017, 1026-28 (1st Cir. 1974), cert. denied, 421 U.S. 910 (1975); Morrow v.
Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied, 419 U.S. 895 (1974);
N.A.A.C.P. v. Allen, 493 F.2d 614, 621 (5th Cir. 1974); United States v. Masonry Contractors Ass'n., 497 F.2d 871, 877-78 (6th Cir. 1974); United States v. Electrical Work-
CREIGHTON LAW REVIEW
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They are necessary "to make [the victims] whole for injuries suf185
fered on account of unlawful employment discrimination."'
Such is the function of all remedies-to put the victims where they
would have been but for the unlawful act. Furthermore, preferences are no less remedial in class action suits; the principle remains the same. "[I]t is enough that each recipient is within a
general class of persons likely to have been the victims of discrimination."'
86
Obviously, a court-ordered race-conscious remedy is lawful
not simply because a court orders it; it is lawful because it is remedial. As a remedy, the preference is not discriminatory under the
meaning of sections 703(a) and 703(d). Its remedial nature sets it
apart from Title VII discrimination.
Preferences are no less remedial when adopted by an employer in response to probable Title VII violations. It must follow
that an employer may lawfully seek to right his own wrongs, and in
so doing, an employer, like the court, is not discriminating. There
are, of course, differences between court-ordered and employer-initiated measures. A court, for instance, may retain a certain measure of control over the concededly volatile remedy. But Title VII
does not draw lines based on the wisdom of employers' remedies;
it draws lines based on discrimination, and an act is no more discriminatory simply because it is not pursuant to court order. 187 Title VII cannot distinguish remedies by their sources.
Weber, however, goes beyond the case in which an employer
believes himself guilty of past discrimination. Weber allows an
employer to adopt preferences remedying effects of traditional segregation alone, without the necessity of proof of discrimination
ers Local 212, 472 F.2d 634, 636 (6th Cir. 1973); United States v. N.L. Indus. Inc., 479
F.2d 354, 377 (8th Cir. 1973); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1971) (en
banc), cert. denied, 406 U.S. 950 (1972); United States v. Ironworkers Local 86, 443
F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984 (1971). But see Kirkland v. New
York Dept. of Correctional Servs., 520 F.2d 420, 426-27 (2nd Cir. 1975), reh. en banc
denied, 531 F.2d 5 (2d Cir. 1975), cert. denied, 429 U.S. 823 (1976); Bridgeport Guardians v. Bridgeport Civil Serv. Comm., 482 F.2d 1333, 1340 (2d Cir. 1973), cert. denied,
421 U.S. 991 (1975).
185. University of Cal. Regents v. Bakke, 438 U.S. 265, 301 (1978) (opinion of
Powell, J.) (quoting Franks v. Bowman Trans. Co., 424 U.S. 747, 763 (1978) and Albemarle Paper Co. v. Moody, 422 U.S. 405,418 (1975)). See also International Bhd. of
Teamsters v. United States, 431 U.S. 324, 372 (1977).
186. University of Cal. Regents v. Bakke, 438 U.S. 265, 363 (1978) (opinion of
Brennan, White, Marshall, and Blackmun, JJ.). See also International Bhd. of
Teamsters v. United States, 431 U.S. 324, 357-62 (1977).
187. Courts may confuse the delicacy with which such potent remedies should
be handled, with their lawfulness. See, e.g., Weber v. Kaiser Aluminum and Chem.
Corp., 415 F. Supp. 761, 767-68 (E.D. La. 1976).
19801
AFFIRMATIVE ACTION
under Title VII. 188 Thus, two important distinctions which are
closely related, arise between the rule adopted in Weber and a case
involving an "arguable violation" of Title VII. First, a court could
not have ordered the plan that Kaiser undertook, at least not without a finding of discrimination against blacks; so court-ordered and
employer-adopted remedies may lose symmetry under Weber.
Second, once an employer attempts to eliminate manifest racial
imbalance in traditionally segregated job categories, the focus of
the remedy shifts from the individual to the race. In other words,
an employer under Weber is not constrained to focus on identified
victims of proven past discrimination as a court might be under
Teamsters.189
The measures adopted by an employer pursuant to Weber are
legal not because a court can also order them; they are legal because they are not discriminatory. The principle remains: a remedy is not discrimination. An employer's voluntary preference will
stand or fall on its own strength as a remedy.
Righting traditional segregation is certainly "remedial." Although the employer is no longer remedying an individual wrong,
he is still attempting to repair suffering felt because of past wrongful conduct. The harm resulting from pre-Act discrimination is
often as real and as pervasive as that resulting from more recent
illegal behavior. 190 An employer seeking to remedy such effects is
still giving remedies and is thus not discriminating. Indeed, if the
courts are powerless to deal with the ill effects of "traditional segregation," it is only for lack of statutory authority, not because
preferences would not be remedial. It is possible to argue that Kaiser had been guilty of unlawful segregation of blacks under section
703(a) (2)191 and, therefore, the employer's affirmative action plan
in Weber was merely designed to remedy an "arguable violation"
of Title VII in the same manner as might be done by a court. However, this unlawful segregation theory was never picked up by the
Court in Weber so it must be assumed that the Court's reference to
"traditional patterns of racial segregation" pertains to actions
192
which are not cognizable under Title VII.
Justice Brennan could have disabled his opponents' two principal arguments by approaching discrimination and the legislative
history differently than he did. Had he chosen to argue the scope
of discrimination, reference to the legislative debates would have
188.
189.
190.
191.
192.
99 S. Ct. at 2730 n.8.
International Bhd. of Teamsters v. United States, 431 U.S. 324, 363 (1977).
See text accompanying notes 29-31 & 91-95 supra.
42 U.S.C. § 2000e-2(a) (2) (1976).
99 S. Ct. at 2730.
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followed naturally. He would not have had to strain to reach them.
Second, had he treated the debates as irrelevant to voluntary preferences, he would not have had to rebut assertions that Congress
intended absolute colorblindness-which they clearly did, outside
the remedial context.
THE CONCURRING OPINION BY JUSTICE BLACKMUN
Contrasted with Justice Brennan's opinion, Justice Blackmun's concurring opinion is refreshing. 193 His review of the
Court's decision lends it substance and helps to obscure the fragile
logic of Justice Brennan's opinion.
The majority opinion in Weber applies a "traditional segregation" standard to assess the validity of voluntarily-adopted preferences. Justice Blackmun, however, expresses a preference for an
"arguable violation" standard, which would allow an employer to
adopt preferences whenever it is reasonably feared that employment practices might violate Title VII. Nonetheless, Justice Blackmun is able to reconcile his views with those of the majority and,
in so doing, makes two noteworthy points.
The first is that, in actual application, Justice Blackmun believes that the "arguable violation" standard would approach the
seemingly broader "traditionally segregated" standard. A mere racial imbalance caused by "traditional segregation" often will be inadequate to make out an "arguable violation" of Title VII.
However, Justice Blackmun argues:
While the "arguable violation" standard is conceptually
satisfying, in practice the emphasis would be on "arguable" rather than on "violation." The great difficulty in the
District Court was that no one had any incentive to prove
that Kaiser had violated the Act. Neither Kaiser nor the
Steelworkers wanted to establish a past violation, nor did
Weber. The blacks harmed had never sued and so had no
established representative. The Equal Employment Opportunity Commission declined to intervene, and cannot
be expected to intervene in every case of this nature. To
make the "arguable violation" standard work, it would
have to be set low enough to permit the employer to prove
it without obligating himself to pay a damage award. The
inevitable tendency would be to avoid hairsplitting litigation by simply concluding that a mere [racial] disparity
...
would be an "arguable violation," even though actual
194
liability could not be established on that basis alone.
193.
194.
Id.
Id. at 2733.
AFFIRMATIVE ACTION
1980]
Justice Blackmun's second point is that the "traditional segregation" standard allows an individual to redress the effects of discrimination otherwise beyond remedy. As a court has no power to
order remedies until it finds a violation of Title VII, it usually cannot repair damage done by pre-Act discrimination. The effects of
the pre-Act discrimination can thus linger for years unless steps
are taken to counteract it. 195 Justice Blackmun notes that in
prohibiting employer-adopted remedies, Title VII would "lock in"
segregation. He points out that it would be
unfair for . . . Weber to argue, as he does, that the asserted scarcity of black craftsmen in Louisiana, the product of historic discrimination, makes Kaiser's training
program illegal because it ostensibly absolves Kaiser of all
Title VII liability ....
Such a construction ... would be
1 96
"ironic," given the broad remedial purposes of Title VII.
Justice Blackmun's remarks help explain what Justice Brennan was trying to do. It is unfortunate that majority opinion did
not fill in all the cracks.
THE LIMITS OF PERMISSIBLE AFFIRMATIVE ACTION
UNDER WEBER
Weber does not give blanket approval to voluntary preferences. Although it expands the reach of voluntary programs, the
traditional limits established on the duration and breadth of courtordered preferences are still applicable. The Court refers expressly to these limits; it is clear that the majority does not intend
197
to depart from them.
The Court rejects the "arguable violation" standard, 198 originally proposed by Judge Wisdom in his dissent from the court of
appeals' opinion, 199 and favored by Justice Blackmun. 20 0 As noted
above, the Court instead upholds the Kaiser plan because it was
"designed to break down old patterns of racial segregation and hierarchy." 20 1 Rather than inquiring into the likelihood of a Title VII
violation, which is the test of validity under the "arguable violation" standard, the Court in Weber first notes the "conspicuous racial imbalances in Kaiser's then almost exclusively white craft
195.
196.
197.
198.
199.
1978).
200.
201.
See text accompanying notes 29-31 & 91-95 supra.
99 S: Ct. at 2733.
Id. at 2730.
Id. at 2730 nn.8 & 9.
Weber v. Kaiser Aluminum and Chem. Corp., 563 F.2d 216, 230-32 (5th Cir.
99 S. Ct. at 2732.
Id. at 2730.
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work forces; ' 20 2 the Court then finds a prevailing pattern of segregation by pointing to the wide gap between the percentage of
blacks in the local work force as compared with the percentage of
blacks in craft jobs, to wit:
Until 19,74 Kaiser hired as craft workers ... only persons
who had had prior craft experience. 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% (five out of 273) of the skilled craft workers at
the Gramercy plant were black, even though the work
in the Gramercy area was approximately 39%
force 203
black.
Given this disparity, the Court concludes that the employer could
racial imbalance in
lawfully adopt a plan to "eliminate conspicuous
' '2 °4
traditionally segregated job categories.
What is important to note about this test is that it clearly allows an employer to give a remedy where none is available under
Title VII. Normally, to make out a prima facie case under Title VII,
the plaintiff would have to show a significant statistical disparity
between the number of qualified blacks in the relevant labor pool
and the number of blacks in the work force. 20 5 In Weber, however,
the employer was allowed to demonstrate "racial imbalance in traditionally segregated job categories," by comparing the number of
blacks in the applicable job class with the total number of blacks in
the local work force. 20 6 This is clearly something more than might
be permissible under an "arguable violation" standard.
The Court, in adopting a "traditional segregation" standard
also avoids impossible problems of proof that would have arisen
under the "arguable violation" theory. As shown by Justice Blackmun, the problems of proof arise when the employer's preferential
plan is challenged by a disappointed white worker; neither party in
the resulting suit has any real interest in demonstrating possible
prior violations. The plaintiff above all wants to win, and such a
showing could cripple his case. The defendant employer, though
certainly interested in vindicating the affirmative action plan, will
be exposed to suits by blacks under Title VII if the employer admits to past discrimination. It is therefore obvious that, under an
"arguable violation" standard, there will be no real proponent of
the view that the affirmative action plan is necessary to remedy
202.
203.
204.
205.
206.
Id. at 2725.
Id.
Id. at 2730.
Hazelwood School Dist. v. United States, 433 U.S. 299, 308 n.13 (1977).
99 S. Ct. at 2730.
19801
AFFIRMATIVE ACTION
past discrimination against minorities. However, under the
Court's "traditional segregation" standard, the validity of voluntary affirmative action will rest primarily on statistical evidence
which can be more easily ascertained impartially.
The "traditional segregation" standard is thus a convenient
test, but it is hardly free from ambiguity. For one thing, it is unclear as to how much of a "racial imbalance" is necessary to satisfy
the Weber test. For another thing, the notion of "traditional segregation" is at best an elusive concept. An interesting situation
would arise if an employer had a lesser concentration of blacks in
his work force than was found in the area labor force, but in a job
category that had never been traditionally segregated within society. This might present a prima facie Title VII violation, and a
court could take action to remedy it if the employer could not rebut
the inference of discrimination. 20 7 However, it is not clear from the
language in Weber, which focuses on eliminating imbalances in
traditionallysegregatedjob categories, that this employer would
be permitted to adopt a voluntary affirmative action plan, unless
"traditional segregation" under Weber means segregation within
an employing institution or within the applicable industry. However, even if it may be assumed under Weber that an employer
may voluntarily remedy segregation within a company where none
is present in the industry, it is not likewise clear that an employer
may institute voluntary affirmative action to remedy societal segregation where none exists within the company.
The Court in Weber does little to expand voluntary remedies
in other ways beyond court-ordered remedies. There remain a
number of restrictons on remedial preferences, insuring that they
do not intrude unnecessarily upon the rights of white workers.
Justice Brennan, summarizing the Court's holding, emphasizes
that the Kaiser plan is temporary, and will end as soon as Kaiser
achieves a minority concentration approximately equal to that of
the area work force. This is in keeping with court practice in ordering such remedies; limits on a plan's duration are almost universally set.20 8 Clearly, a plan adopted under Weber must serve to
207. See Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977); International Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977); United
States v. Wood, Wire and Metal Lathers Int'l Union Local No. 46, 471 F.2d 408, 414 n.8
(2d Cir.), cert.denied, 412 U.S. 939 (1973); United States v. Ironworkers Local 86, 443
F.2d 544, 551 (9th Cir. 1971).
208. Courts usually note that the remedy is only temporary. See, e.g.,
N.A.A.C.P. v. Allen, 493 F.2d 614, 621 (5th Cir. 1974); Southern Ill. Builders Ass'n v.
Oglivie, 471 F.2d 680, 686 (7th Cir. 1972); c. Detroit Police Officers' Ass'n v. Young,
No. 78-1163, slip op. at 40 (6th Cir. Oct. 12, 1979) (voluntary affirmative action plan
had no provision for termination; court upheld plans contingent upon adoption of
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attain, not maintain, racial balance. 20 9 Justice Brennan also notes
that there was no direct displacement of white workers under the
Kaiser plan; no whites were fired, laidoff or demoted to make room
for black workers. This is a well-recognized requisite to a valid affirmative action plan. 210 Finally, Justice Brennan points out that
the Kaiser plan did not bar the advancement of whites; workers of
all races were eligible for the training program.
The limitations set forth in Weber are perfectly consistent with
those established in Carter v. Gallagher,21 1 one of the first judicial
opinions upholding minority quotas to remedy past discrimination.
Carter barred absolute preference in favor of minorities; the Kaiser plan which set a 50/50 black-white ratio suffered no such infirmity. The main difference between Weber and Carter is that
Weber allows for voluntary, employer-union initiated action,
whereas in Carter the quota was set by judicial decree pursuant to
a finding of past discrimination.
THE APPLICATION OF WEBER IN THE PUBLIC SECTOR
Although Weber gives some fairly clear rulings with respect to
the legality of voluntary affirmative action plans in the private sector, the opinion offers no guidance whatsoever with respect to the
legality of like plans established by government employers. In
other words, Weber does not deal with equal protection issues arising under the fifth or fourteenth amendments; the Court at the outset makes it clear that the case involves a private employer and
212
that the fourteenth amendment is not in issue.
such a provision). See also Edwards & Zaretsky, PreferentialRemediesfor Employment Discrimination,74 MICH. L. REv. 1, 32 (1976).
209. The legislative history of the 1964 Act indicates clearly that Congress was
opposed to programs designed to maintain racial balance. See, e.g., 110 CONG. REC.
12723 (1964) (remarks of Sen. Humphrey); 110 CONG. REc. 7213 (1964) (memo of
Sens. Clark and Case). Carl Cohen, writing in Commentary, maintains that a distinction between "attaining" and "maintaining" racial balance is specious, that
since the latter is prohibited, so should be the former. He argues that temporary
measures would not satisfy proponents of affirmative action-that if minority representation fell in a work force after the remedial measures had expired, a cry would
go up again for preferences. Cohen, Justice Debased: The Weber Decision, COMMENTARY, Sept. 1979, at 48.
Cohen is half right, proponents would demand, and would have a right to expect remedies if the drop in minority representation reflected violations of the Act.
210. See, e.g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 437 (5th
Cir. 1971), cert. denied, 406 U.S. 906 (1972); Local 189, United Papermakers and
Paperworkers v. United States, 416 F.2d 980, 988 (5th Cir. 1969), cert. denied, 404 U.S.
984 (1971).
211. 452 F.2d 315, 330 (8th Cir.) (en banc), cert. denied, 406 U.S. 950 (1972). See
also United States v. N.L. Indus. Inc., 479 F.2d 354 (8th Cir. 1973).
212. 99 S. Ct. at 2726.
AFFIRMATIVE ACTION
19801
Furthermore, in footnote six in the Weber opinion, the Court
observes:
Title VI of the Civil Rights Act of 1964, considered in University of California Regents v. Bakke, 438 U.S. 265 (1978),
contains no provision comparable to § 703(j). This is because Title VI was an exercise of federal power over a matter in which the Federal Government was already directly
involved: the prohibitions against race-based conduct contained in Title VI governed "program [ s] or activit [ies] receiving Federal financial assistance." 42 U.S.C. § 2000d.
Congress was legislating to assure federal funds would not
be used in an improper manner. Title VII, by contrast, was
enacted pursuant to the Commerce power to regulate
purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and
Fourteenth Amendments. Title VII 213
and Title VI, therefore, cannot be read in pari materia.
This observation makes it clear that the Court is unwilling to apply
a Title VII test of discrimination in a case involving a constitutional
claim of unequal protection. This is hardly surprising in light of
the Court's prior holding in Washington v. Davis.2 14 Still, it is not
entirely clear what to make of the Court's extreme caution in distinguishing the public and private sectors.
In the Bakke decision, Justice Stewart sided with the four Justices who read Title VI to mandate something approaching absolute colorblindness. 2 15 However, this bloc of Justices refused to
determine the legality of the Davis Medical School admissions
plan under the fourteenth amendment. Therefore, Justice Stewart, who switched and joined the majority in Weber, has yet to
clearly indicate his view on racial preferences under the fourteenth amendment. If Justice Stewart believes that Title VI does
in fact incorporate a fourteenth amendment standard, then (according to his view in Bakke) he will likely vote against voluntary
preferences in the public sector. The matter is anything but clear.
In some respects, it is at least arguable that the question concerning voluntary preferences under the fourteenth amendment
may prove to be an easier one for the Court to decide (in favor of
affirmative action) than was the case posed in Weber. Opponents
of voluntary preferences insisted that Title VII mandated absolute
colorblindness. 2 16 No such claim can be made under the four213.
214.
215.
Id. at 2729 n.6.
426 U.S. 229 (1976).
Regents of the University of Cal. v. Bakke, 438 U.S. 265, 408 (1978) (opinion
of Stevens, J.).
216.
See note 182 supra.
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teenth amendment. Although race is a suspect classification under
the fourteenth amendment guarantee of equal protection, and
courts must apply strict scrutiny in order to uphold racial classifications, 217 many cases have held that the Constitution does not
prohibit all classification by race;2 18 indeed, "[tJhe constitution is
both color blind and color conscious. 2 19
Additionally, decisions in recent years support the idea that
racial classifications established for remedial purposes (i.e. "benign" racial classifications) may be constitutionally permissible.
For example, in Swann v. Charlotte-MecklenburgBoard of Education,220 the Supreme Court held that "mathematical ratios" are
"useful starting point[s] in shaping a remedy" for unconstitutional
221
segregation of students and faculty in a public school district.
The Court emphasized, however, that the ratio is only a starting
point and that there is no constitutional right to a fixed racial balance in every school equal to that in the school system as a
whole. 222 The Court also approved the use of ratios in faculty assignments in United States v. Montgomery County Board of Education,223 in which the Court recognized that the ratios would be
necessary in order to assure that faculties would be integrated
with the greatest possible speed.224 While this case did not involve
hiring and firing, it did involve the use of color in the employmentrelated decision concerning where the teachers' work would be
done. It therefore forms a bridge between the school desegregation and employment cases.
Another case of significance is United Jewish Organizationsv.
Carey.225 In Carey the petitioners argued that the New York Leg226
islature, although seeking to comply with the Voting Rights Act
as construed by the Attorney General, had violated the fourteenth
and fifteenth amendments by deliberately revising a reapportionment plan along racial lines. In rejecting this claim, Justice White,
writing for the Court, observed:
217. See, e.g., San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 16 (1973); Loving
v. Virginia, 388 U.S. 1, 11 (1967).
218. See, e.g., North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971); McDaniel v. Barresi, 402 U.S. 39,41 (1971); Korematsu v. United States, 323 U.S. 214,216
(1944).
219. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir.
1966).
220. 402 U.S. 1 (1971).
221. Id. at 25.
222. Id.
223. 395 U.S. 225 (1969).
224. Id. at 235.
225. 430 U.S. 144 (1977).
226. 42 U.S.C. § 1973c (1972).
AFFIRMATIVE ACTION
1980]
[i]t is ... clear that under Section 5 [of the Voting Rights
Act], new or revised reapportionment plans are among
those voting procedures, standards or practices that may
not be adopted by a covered State without the Attorney
General's or a three-judge court's ruling that the plan
"does not have the purpose and will not have the effect of
denying or abridging the right to vote on account of race or
color." .
[Njeither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors
in districting and apportionment ....
The permissible
use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment.
Moreover, in the process drawing black majority districts in order to comply with Section 5, the State must decide how substantial those majorities must be in order to
satisfy the Voting Rights Act.... [A] reapportionment
cannot violate the Fourteenth or Fifteenth Amendment
merely because a State uses specific numerical quotas in
establishing
a certain number of black majority dis27
tricts.
2
Justice White then went on to indicate that, whether or not the
New York plan was authorized by or was in compliance with section five of the Voting Rights Act, the state was nevertheless free to
do what it did as long as it did not violate the Constitution. On this
point, Justice White found that the New York plan
represented no racial slur or stigma with respect to whites
or any other race, and we discern no discrimination violative of the Fourteenth Amendment nor any abridgment of
the right to vote on account of race within the meaning of
the Fifteenth Amendment.
In individual districts where nonwhite majorities were
increased to approximately 65%, it became more likely,
given racial bloc voting that black candidates would be
elected [but] as long as whites in Kings County, as a
group, were provided with fair representation, we cannot
conclude that there was a cognizable discrimination
against whites or an22abridgment
of their right to vote on
8
the grounds of race.
Justice Stewart concurred in Carey. His position is noteworthy because it clearly rejects the suggestion that the fourteenth
amendment requires "colorblindness." The Stewart opinion also
227. United Jewish Organization v. Carey, 430 U.S. 144, 157, 161-62 (1977).
228. Id. at 165-66.
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appears to embrace a position that will allow for race-conscious
remedies for benign purposes:
[Pletitioners' contention is essentially that racial awareness in legislative reapportionment is unconstitutional per
se. Acceptance of their position would mark an egregious
departure from the way this Court has in the past analyzed the constitutionality of claimed discrimination in
dealing with the elective franchise on the basis of race.
Under the Fourteenth Amendment the question is
whether the reapportionment plan represents purposeful
discrimination against white votes. Washington v. Davis.... [But] the record here does not support a finding
that the redistricting plan undervalued the political power
of white voters relative to their numbers in Kings County.
That the legislature was aware of race when it drew the
district lines might also suggest a discriminatory purpose.
[But] the clear purpose with which the New York legislature acted-in response to the position of the United
States Department of Justice under the Voting Rights
Act-forecloses any finding that it acted with the229invidious
purpose of discriminating against white voters.
It is certainly possible to read Justice Stewart's position to suggest
that he might be prepared to uphold the implementation of an affirmative action plan in the public sector where the plan has a legitimate remedial purpose.
230
One final case that is worthy of note here is Porcelli v. Titus.
The Third Circuit used a rational basis test in Porcelli to uphold
the abolition of a promotional list being used by the Newark
School Board that tended to perpetuate the low representation of
blacks among school administrators. In order to increase the
number of blacks who could be selected as principals or vice-principals, the court approved the use of race as one criterion to be
used in the selection process. In fact, the court not only found that
the school board was permitted to prefer minority applicants, but
indicated that the board may have had an affirmative duty to do so
23 1
in order to integrate school faculties.
These cases fall into a "certainty of violation" continuum.
Swann represents a remedy for proven discrimination and allows
race alone to control faculty reassignments. In Carey there was no
statutory violation shown, but the State of New York was nevertheless permitted to use race in a redistricting plan in order to
229.
230.
231.
Id. at 179-80 (Stewart, J., concurring).
431 F.2d 1254 (3d Cir. 1970).
Id. at 1257-58.
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AFFIRMATIVE ACTION
avoid violating the Voting Rights Act. Finally, in Porcelli,the appointments of blacks to principal and vice-principal positions were
wholly voluntary; the Third Circuit indicated that such remedial
actions were constitutionally permissible so long as race was not
the sole factor justifying the employer's action.
Although the Supreme Court is clearly willing to permit raceconscious remedies where there have been findings of statutory or
constitutional violations, Weber is not such a case. Kaiser adopted
its program to offset the effects of traditional segregation; the remedy was not for individual claimants, but for societal discrimination which was seen to be duplicated in the employer's plant.
However, it may be that in the analogue to Weber in the public
sector, affirmative action plans will be upheld under an "arguable
violation" theory, with Carey as the controlling authority. That is,
since Title VII now applies to public employers, it can be argued
that voluntary affirmative action is permissible to remedy potential
statutory violations. If Justice Blackmun is correct in his suggestion that the "arguable violation" and "traditional segregation"
standards will, as a practical matter, be very close in application,
then the Court may be persuaded to follow Weber in the public
sector.
The Porcelli decision is the strongest constitutional precedent
supporting voluntary preferences by public employers; however,
the rationale in Porcelli may be seen to be too permissive by the
232
current Court, especially in light of Bakke.
An answer to the question posed concerning the legality of affirmative action in the public sector may be forthcoming from the
Supreme Court by the end of the 1979-80 term. On May 21, 1979,
the Court granted certiorari in Fullilove v. Kreps23 3 and, although
Fullilove is not the perfect analogue to Weber, it raises a number
of important issues concerning the legality of remedial preferences
under the Constitution.
At issue in Fullilove was the constitutionality of section
234
103(f) (2) of the Public Works Employment Act of 1977 (PWEA).
The statute mandates that "no grant shall be made under this
chapter for any local public works project unless the applicant
gives satisfactory assurance to the Secretary that at least 10 per
centum of the amount of each grant shall be expended for minority
business enterprises. '235 In upholding the constitutionality of this
232. 438 U.S. 265 (1978).
233. 584 F.2d 600 (2d Cir. 1978), cert. granted,99 S. Ct. 2403 (1979).
234. 42 U.S.C. § 6705(f)(2) (1977).
235. Id.
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minority "set-aside," the Second Circuit ruled that the record of
legislative history was adequate to indicate that Congress had
made "findings" of past discrimination before acting to pass the
PWEA. Given this, the court found:
In employment discrimination cases it is well-established
that the government's interest in overcoming the disadvantages resulting from past discrimination in employment on account of race is sufficiently compelling to justify
a remedy which requires the use of racial preferences.
The vitality of the rationale in those cases was not disturbed by the recent decision of the Court in Regents of the
University of California v. Bakke. The Justices did not
disagree with the principle that race-conscious remedies
can be imposed when there have been judicial, legislative
or administrative findings of past discrimination and the
are appropriately drawn to rectify that
remedies fashioned
236
discrimination.
Even if the Second Circuit decision is sustained in Fullilove,it
is not at all clear what this will mean with respect to affirmative
action programs developed by state or local government units. The
Second Circuit opinion itself recognizes that "[tihe rule for ascertaining what the purpose of Congress was in enacting a statute
that is subject to scrutiny under the equal protection clause is
more deferential than the rule which would be applied to test a
state statute. '23 7 Furthermore, if the Second Circuit is correct in
suggesting that "findings" of past discrimination must be made in
order to justify preferential remedies, it is not clear what kind of
findings, and by whom, will be adequate at the state or local government levels.
Although Fullilove is hardly the perfect vehicle to decide a
Weber-type case in the public sector, the Supreme Court's decision may nevertheless answer a number of the questions left open
by Weber.
AFFIRMATIVE ACTION UNDER EXECUTIVE ORDER 11246
Probably the most significant omission in Weber is the
Supreme Court's failure to indicate anything about the legality of
the requirement of affirmative action under Executive Order 11246.
The omission was deliberate. Kaiser argued that it had developed
the disputed affirmative action plan pursuant to Executive Order
11246 and in response to prodding from federal government regula236.
237.
584 F.2d at 606-07.
Id. at 604.
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AFFIRMATIVE ACTION
tors. However, the Supreme Court rather summarily disposed of
this contention, in footnote nine, with the following observation:
Our disposition makes unnecessary consideration of petitioners' argument that their plan was justified because
they feared that black employees would bring suit under
Title VII if they did not adopt an affirmative action plan.
Nor need we consider petitioners' contention that their affirmative action plan represented an attempt to comply
with Executive Order 11246.238
It may be that the Court was wary of using Weber to attempt to
reconcile the affirmative action obligation under Executive Order
11246 with the proscription against discrimination under Title VII.
The evidence in the case was unclear as to whether Kaiser and the
Steelworkers had truly acted pursuant to the urging of federal regulators and whether, indeed, Kaiser was even out of compliance
with Executive Order 11246. In addition, there were clearly no
findings of the sort suggested by Justice Powell in Bakke to justify
the affirmative action plan; the Justices may therefore have preferred to avoid the constitutional issues that would have had to be
decided if the legality of the government mandate of affirmative
action was at issue.
As noted above, Executive Order 11246 has survived constitutional challenge in a number of decisions issued by lower federal
courts. 23 9 It is also clear from the legislative history surrounding
the 1972 amendments to Title VII that Congress has at least implicitly approved the requirement of affirmative- action under Executive Order 11246.2 4 0 This precedent and legislative history would
normally be more than enough to sustain the requirement of affirmative action under the Executive Order, but the issue is now
muddled by some of the rationale that was used by Justice Brennan in his majority opinion in Weber.
Justice Brennan focuses on section 703(j), emphasizing that
affirmative action designed to cure racial imbalances may be permitted, but not required,under Title VII. He goes so far as to suggest that section 703(j) was designed to prevent "Title VII from
being interpreted in such a way as to lead to undue 'Federal Government interference with private businesses because of some
238. 99 S. Ct. at 2730, n.9.
239. Contractors Ass'n of E. Pa. v. Secretary of Labor, 442 F.2d 159, 177 (3d Cir.
1971); Builder's Ass'n v. Oglivie, 327 F. Supp. 1154, 1160-61 (S.D. hi. 1971); Joyce v.
McCrane, 320 F. Supp. 1284, 1290 (D.N.J. 1970); Ethridge v. Rhodes, 268 F. Supp. 83,
89-90 (S.D. Ohio 1967); Weiner v. Cuyahoga Community College, 150 Ohio Misc. 289,
-, 238 N.E.2d 839, 844-45 (1968), affid. mem., 19 Ohio St. 2d 35, 249 N.E.2d 907, cert.
denied, 396 U.S. 1004 (1969).
240. See text accompanying notes 152-71 supra.
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[Vol. 13
Federal employee's ideas about racial balance or imbalance.' "241
It is thus clear that the majority opinion in Weber may be read in
such a way as to forbid affirmative action under Executive Order
11246. This would appear to be a strained construction of "discrimination" under Title VII, especially in light of the 1972 legislative
history, but it is not implausible given the language in Justice
Brennan's opinion.
The problem may not be a serious one if the majority opinion
in Weber was written as it was to capture Justice Stewart's vote.
That is, if Justice Powell ultimately declares in favor of affirmative
action under the Executive Order (as he appeared to do in
Bakke),242 then it will not matter whether Justice Stewart abandons the Brennan majority in future cases. If this does occur then
some of what appears to be limiting language in Weber may be discounted by the Court in a case involving the constitutionality of
preferences in the public sector. On the other hand, if Justice
Powell meant to suggest in Bakke that findings of past discrimination, pursuant to extended and formal hearings, are necessary in
order to justify affirmative action under the Executive Order; and
if Justice Stewart is unwilling to go any further than upholding voluntary, private affirmative action of the sort seen in Weber; and if
Justice Stevens fails to join with the Brennan group; then the mandate of affirmative action under Executive Order 11246 may face
some serious difficulties when the issue reaches the Supreme
Court for judgment.
CONCLUSION
Although Weber is clearly a case of immense symbolic significance, it is still a very limited ruling. At one point in his opinion,
Justice Brennan states: "Congress did not intend to limit traditional business freedom to such a degree as to prohibit all raceconscious affirmative action. We therefore hold that Title VII's
prohibition in §§ 703(a) and (d) against racial discrimination does
not condemn all private, voluntary, race-conscious affirmative action plans." 243 Justice Brennan then indicates that there is no
need in Weber for the Court to "detail the line of demarcation be' 244
tween permissible and impermissible affirmative action plans."
All of these observations are obviously intended to focus on the
241. 99 S. Ct. at 2729 (quoting 110 CONG. REC. 14314 (1964)
Miller)).
242. 438 U.S. at 301.
243. 99 S. Ct. at 2729-30 (emphasis added).
244. Id. at 2730.
(remarks of Sen.
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AFFIRMATIVE ACTION
limited nature of the Court's ruling. It is because of this that the
issue having to do with the legality of the affirmative action requirement under Executive Order 11246 will now take on such significance.
Unless Weber is seen to encourage (or even require) affirmative action, and the perception becomes the reality, the decision
will mean virtually nothing if the requirement of affirmative action
under Executive Order 11246 is struck down. Employers will have
no incentive to act voluntarily-and, if past history is any guide,
there is no reason to believe that they will-absent the federal
"prod" under the Executive Order. Weber is significant because
employers may now easily act, pursuant to the federal prod and
without having to engage in extended formal hearings on a charge
of discrimination, to give temporary, preferential remedies to undo
the lingering effects of past discrimination. The threat of suit
under Title VII plainly does not serve as a similar prod, in part
because of recent changes in the law under Title VII which makes
the burden of proof more difficult for plaintiffs.
Fullilove v. Kreps245 may be too remote on the facts to produce
a decision which will answer some of the many difficult questions
left open by Weber. The case does, however, present the Court
with an early opportunity to give some much needed guidance on
the full meaning of Weber. For now, though, it is probably enough
that the Court has acted approvingly, albeit in a limited factual setting, to give a strong endorsement to remedial preferences. This
endorsement should give some aid to those who are seeking to enforce or to secure equal opportunity in employment.
245.
584 F.2d 600 (2d Cir. 1978), cert. granted, 99 S. Ct. 2403 (1979).