Question: United Steelworkers of America, AFL-CIO v. Weber 443 U.S. 193 (1979)

A white employee sued under Title VII alleging race discrimination, in that the union and employer adopted a voluntary affirmative action plan reserving for African American employees 50 percent of the openings in a training program until the percentage of African American craft workers in the plant approximated the percentage of African-Americans in the local labor force. The Supreme Court held that the program was permissible, in that Title VII did not prohibit voluntary race-conscious affirmative action plans undertaken to eliminate a manifest racial imbalance, the measure is only temporary, and it did not unnecessarily trample the rights of white employees.

Brennan, J.

In 1974, the union and Kaiser entered into a master collective bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's craftwork force, which was almost exclusively white. The plan was to eliminate this racial imbalance by reserving for black employees 50 percent of the openings in in-plant crafttraining programs until the percentage of black craftworkers in a plant is commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at Kaiser's Gramercy plant where, prior to 1974, only 1.83 percent of the skilled craftworkers were black, even though the local workforce was approximately 39 percent black.

Pursuant to the national agreement, rather than continue its practice of hiring trained outsiders, Kaiser established a training program to train its production workers to fill craft openings. Pursuant to the master collective bargaining agreement, trainees were selected on the basis of seniority, with the proviso that at least 50 percent of the trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plant approximated the percentage of blacks in the local labor force. During the first year of the plan, seven black and six white craft trainees were selected, with the most senior black trainee having less seniority than several white production workers whose bids for admission to the program were rejected.

Weber was one of those workers. After being turned down for the training program when blacks with less seniority were admitted, Weber sued, alleging that, because the affirmative action program had resulted in junior black employees receiving training in preference to more senior white employees, Weber, and others similarly situated, had been discriminated against in violation of sections 703(a) and (d) of Title VII of the Civil Rights Act of 1964 which made it unlawful to discriminate on the basis of race in the hiring and selection of apprentices for training programs. The question is whether Congress, in Title VII, left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories.

We hold that Title VII does not prohibit such race-conscious affirmative action plans. Weber argues that since McDonald [see Chapter 5] settled that Title VII forbids discrimination against whites as well as blacks, and since the affirmative action plan here discriminates against whites solely because they are white, the plan therefore violates Title VII. Weber's argument is not without force. But it overlooks the significance of the fact that the plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. In this context, Weber's reliance upon a literal construction of sections 703(a) and (d) and McDonald is misplaced. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.

The prohibition against racial discrimination in sections 703(a) and (d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose. Examination of those sources makes clear that an interpretation of the sections that forbade all race-conscious affirmative action would "bring about an end completely at variance with the purpose of the statute" and must be rejected. Congress's primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with "the plight of the Negro in our economy." Before 1964 blacks were largely relegated to "unskilled and semi-skilled jobs." Because of automation the number of such jobs was rapidly decreasing. As a consequence, "the relative position of the Negro worker [was] steadily worsening.

In 1947 the nonwhite employment rate was only 64 percent higher than the white race; in 1962 it was 124 percent." Congress considered this a serious social problem and feared that the goal of the Civil Rights Act-the integration of blacks into the mainstream of society-could not be achieved unless the trend were reversed. It further recognized that this would not be possible unless blacks were able to secure jobs "which have a future." Accordingly, it was clear to Congress that "[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them," and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed.

It plainly appears from the House Report accompanying the Civil Rights Act that Congress did not intend wholly to prohibit private and voluntary affirmative action efforts as one method of solving this problem. The Report provides: "No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." H.R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963); U.S. Code Cong. & Admin. News 1964, pp. 2355, 2393. (Emphasis supplied.)

Given this legislative history, we cannot agree with Weber that Congress intended to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words intended as a spur or catalyst to cause "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history," cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. It would be ironic if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long," constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to them." At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximates the percentage of blacks in the local labor force. Weconclude, therefore, that the adoption of the Kaiser- USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories. Accordingly, the judgment of the Fifth Circuit is REVERSED.

1. Does this decision make sense to you? Why? Why not?

2. If, because of discrimination, African-Americans were not in a workplace for as long as whites and, therefore, did not have as much seniority as whites, does it seem reasonable to allow African-Americans with less seniority than whites to join the training program? If not, can you think of an alternative?

3. As a manager in a firm that is thinking of instituting a voluntary affirmative action plan, what factors would you consider?