Weber v. Kaiser Aluminum & Chemical Corp.

Decision Date17 November 1977
Docket NumberD,No. 76-3266,AFL-CI,76-3266
Citation563 F.2d 216
Parties16 Fair Empl.Prac.Cas. 1, 15 Empl. Prac. Dec. P 7935 Brian F. WEBER, Individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees, v. KAISER ALUMINUM & CHEMICAL CORPORATION and United Steelworkers of America,efendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Robert J. Allen, Jr., Legal Dept. Kaiser Aluminum & Chemical Corp., Oakland, Cal., F. W. Middleton, Jr., Baton Rouge, La., for Kaiser Aluminum, etc.

John C. Falkenberry, Birmingham, Ala., Michael H. Gottesman, Washington, D. C., Jerry L. Gardner, Jr., New Orleans, La., for United Steelworkers of America.

Kenneth B. Peterson, Cloyd R. Mellot, Pittsburgh, Pa., for ALCOA, amicus curiae.

Burt A. Braverman, Washington, D. C., for Reynolds Metal, amicus curiae.

Michael R. Fontham, New Orleans, La., for Weber.

John W. Finley, Jr., Brashick and Finley, New York City, Michael Blinick, Ben B. Blackburn, of counsel for Southeastern Legal Foundation, amicus curiae.

Richard S. Ugelow, Robert T. Moore, James P. Turner, Attys., U. S. Dept. of Justice, Washington, D. C., for USA & E.E.O.C.

Arnold Forster, New York City, for Anti-Defamation League of B'Nai B'rith.

Christopher S. Bond, Gene E. Voigts, Kansas City, Mo., for Great Plains Legal Foundation.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

In February 1974, Kaiser Aluminum & Chemical Corporation entered into a collective bargaining agreement with United Steelworkers of America, AFL-CIO (USWA), that significantly altered eligibility for on-the-job training to enter craft positions in all Kaiser plants. In an effort to increase the number of minority workers in the craft families, the 1974 Labor Agreement removed the requirement of prior craft experience for on-the-job training and established an entrance ratio of one minority worker to one white worker until the percentage of minority craft workers roughly approximated the percentage of minority population in the area surrounding each plant. Eligibility for training still rested on plant seniority, but to implement their affirmative action goal it was necessary to establish dual seniority lists: for each two training vacancies, one black and one white employee would be selected on the basis of seniority within their respective racial groups. 1 As predictable, black employees have been admitted to Kaiser's on-the-job training program with less seniority than their white competitors. One unsuccessful white bidder working at Kaiser's Gramercy, Louisiana, plant brought this class action on behalf of all persons employed by Kaiser at its Gramercy works who are members of the USWA Local 5702, who are not members of a minority group and who have applied for or were eligible to apply for on-the-job training programs since February 1, 1974. Mr. Weber alleged that by preferring black employees with less seniority for admission to on-the-job training, Kaiser and USWA were guilty of unlawful discrimination in violation of Title VII, 42 U.S.C. §§ 2000e-2 et seq. (1970). The district court agreed and granted a permanent injunction against further use of the 1974 training eligibility quota. Although the 1974 Labor Agreement applies to all Kaiser plants and similar agreements were enacted through the aluminum industry, these facts pertain only to Kaiser's plant in Gramercy, Louisiana, and this action enjoined the use of the quota at that plant only. Kaiser and USWA, supported by numerous amici curiae, 2 bring this appeal asking us to hold that their training quota, which they say is mandated by valid executive action, does not violate Title VII and is justified by past societal discrimination even in the absence of past employment discrimination here.

Affirmative Relief or Reverse Discrimination?

The case before this court today is unique in that the affirmative action complained of was not imposed by the judiciary; rather, this collective bargaining agreement was entered into to avoid future litigation and to comply with the threats of the Office of Federal Contract Compliance Programs (OFCC) conditioning federal contracts on appropriate affirmative action. 3 The case is also unique in that it presents a conflict between affirmative action dictated by the OFCC under Executive Order 11246 and preferential treatment prohibited by Title VII. In United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), Title VII and Executive Order 11246 dictated the same response to massive discriminatory practices throughout the steel industry, but the training quota adopted by Kaiser in response to Executive Order 11246 is flatly and literally prohibited by Title VII, § 703(d), which makes it unlawful to limit access to on-the-job training on the basis of race:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

42 U.S.C. § 2000e-2(d) (1970). Additionally, section 703(a) prohibits racial classifications in general, 4 and section 703(j) specifies that the Act shall not require preferential treatment. 5 But, of course, the issue here is not whether preferential treatment is required but whether it is forbidden.

When does preferential treatment become illegal reverse discrimination? The answer depends on the law involved, the nature of the affirmative action, and the factual circumstances of the prior discrimination. 6 Federal courts have agreed that the "make whole" objective of Title VII 7 permits and even requires affirmative relief when necessary to correct continuing inequalities created by past discriminatory employment practices. 8 In Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Court seems to have adopted this circuit's "rightful-place" doctrine, 9 authorizing fictional seniority in order to place the victims of discrimination in as good a place as they would have enjoyed absent discriminatory hiring practices.

Obviously merely to require (respondent) to hire the class three victim of discrimination falls far short of a "make whole" remedy. A concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary in the absence of justification for denying that relief. Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual who applies for and obtains employment as an OTR driver pursuant to the District Court's order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits his inferiors. (footnotes omitted).

Id., 424 U.S. at 767-68, 96 S.Ct. at 1265-1266. The Court made it clear that an award of artificial seniority may not be denied on the ground that it conflicts with the economic interests of other employees.

(I)t is apparent that denial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central "make-whole" objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy. But, as we have said, there is nothing in the language of Title VII, or its legislative history, to show that Congress intended generally to bar this form of relief to victims of illegal discrimination . . . .

Id. at 774, 96 S.Ct. at 1269.

The Supreme Court has never approved the use of a quota remedy to overcome employment discrimination, but circuit courts have repeatedly sanctioned judicially imposed quotas in certain factual circumstances. Prior to the 1972 amendments to Title VII, our circuit approved such a quota. Local 53, International Ass'n of Heat & Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969). Accord, United States v. International Brotherhood of Electrical Workers, Local 38, 428 F.2d 144, 149-59 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); United States v. Sheetmetal Workers Local 36, 416 F.2d 123 (8th Cir. 1969). In 1972, a Senate amendment to overturn this case law and forbid the use of quota remedies was rejected two-to-one. Legislative History of Equal Employment Opportunity Act of 1972 at 1017, 1042-74, 1081, 1714-17 (1972). The bill amending Title VII in 1972 provided:

In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.

Subcom. on Labor of the Senate Com. on Labor and Public Welfare, Legislative History, supra at 1844. Since 1972, judicially imposed quota remedies have been widely approved. United States v. International Union of Elevator Constructors Local 5, 538 F.2d 1012 (3d Cir. 1976); EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976); Boston NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974)...

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