In The

Supreme Court of the United States




Decided July 2, 1986

Justice O’Connor, Concurring in part and dissenting in part

Topic: Civil Rights*Court vote: 5–4
Note: No other Justices joined this opinion.
Citation: 478 U.S. 421 Docket: 84–1656Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in part and dissenting in part.

I join Parts II-A, III, and VI of the Court's opinion. I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership "goal" and the Fund order are concerned, and I would not reach petitioners' constitutional claims. I agree with JUSTICE WHITE, however, that the membership "goal" in this case operates as a rigid racial quota that cannot feasibly be met through good faith efforts by Local 28. In my view, § 703(j), 42 U.S.C. § 2000e-2(j), and § 706(g), 42 U.S.C. § 2000e-5(g), read together, preclude courts from ordering racial quotas such as this. I therefore dissent from the Court's judgment insofar as it affirms the use of these mandatory quotas.

In Firefighters v. Stotts, 467 U. S. 561 (1984), the Court interpreted § 706(g) as embodying a policy against court-ordered remedies under Title VII that award racial preferences in employment to individuals who have not been subjected to unlawful discrimination. See id. at 467 U. S. 579 -583. The dissenting opinion in Stotts urged precisely the position advanced by JUSTICE BRENNAN's plurality opinion today -that any such policy extends only to awarding make-whole relief to particular nonvictims of discrimination, and does not bar class-wide racial preferences in certain cases. Id. at 467 U. S. 612 -614 (BLACKMUN, J., dissenting). The Court unquestionably rejected that view in Stotts. Although technically dicta, the discussion of § 706(g) in Stotts was an important part of the Court's rationale for the result it reached, and accordingly is entitled to greater weight than the Court gives it today. See id. at 467 U. S. 582 -583.

It is now clear, however, that a majority of the Court believes that the last sentence of § 706(g) does not, in all circumstances, prohibit a court in a Title VII employment discrimination case from ordering relief that may confer some racial preferences with regard to employment in favor of nonvictims of discrimination. See ante at 478 U. S. 444 -475 (opinion of BRENNAN, J.); ante at 478 U. S. 483 -484 (opinion of POWELL, J.); post at 478 U. S. 499 (opinion of WHITE, J.). Even assuming that some forms of race-conscious affirmative relief, such as racial hiring goals, are permissible as remedies for egregious and pervasive violations of Title VII, in my view, the membership "goal" and Fund order in this case were impermissible, because they operate not as goals, but as racial quotas. Such quotas run counter to § 703(j) of Title VII, and are thus impermissible under § 706(g) when that section is read in light of § 703(j), as I believe it should be.

The plurality asserts that § 703(j) in no way

qualifies or proscribes a court's authority to order relief otherwise appropriate under § 706(g) in circumstances where an illegal discriminatory act or practice is established.

Ante at 478 U. S. 464, n. 37. According to the plurality, § 703(j) merely provides that an employer or union does not engage in unlawful discrimination simply on account of a racial imbalance in its workforce or membership, and thus is not required to institute preferential quotas to avoid Title VII liability. Thus, the plurality concedes that § 703(j) is aimed at racial quotas, but interprets it as limiting only the substantive liability of employers and unions, not the remedial powers of courts.

This interpretation of § 703(j) is unduly narrow. Section 703(j) provides:

Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available workforce in any community, State, section, or other area.

78 Stat. 257 (emphasis added).

In Steelworkers v. Weber, 443 U. S. 193, 443 U. S. 205, n. 5 (1979), the Court stated that "Section 703(j) speaks to substantive liability under Title VII." While this is one purpose of § 703(j), the Court in Weber had no occasion to consider whether it was the exclusive purpose. In my view, the words "Nothing contained in this title shall be interpreted to require" plainly make § 703(j) applicable to the interpretation of any provision of Title VII, including § 706(g). Therefore, when a court interprets § 706(g) as authorizing it to require an employer to adopt a racial quota, that court contravenes § 703(j) to the extent that the relief imposed as a purported remedy for a violation of Title VII's substantive provisions in fact operates to require racial preferences "on account of [a racial] imbalance." In addition, since § 703(j), by its terms, limits the circumstances in which an employer or union may be required to extend "preferential treatment to any individual or to any group because of... race," the plurality's distinction between make-whole and class-wide relief is plainly ruled out insofar as § 703(j) is concerned.

The plurality's restrictive reading of § 703(j) rests largely on its view of the legislative history, which the plurality claims establishes that Congress simply did not consider the use of racial preferences to remedy past discrimination when it enacted Title VII. According to the plurality, the sole focus of concern over racial quotas involved the scope of substantive liability under Title VII: the fear was that employers or unions would be found liable for violating Title VII merely on account of a racial imbalance. This reading of the legislative history ignores authoritative statements -relied on by the Court in Stotts, 467 U.S. at 467 U. S. 580 -582 -addressing the relief courts could order, and making plain that racial quotas, at least, were not among the permissible remedies for past discrimination. See, e.g., 110 Cong.Rec. 6549 (1964) ("Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial quota' or to achieve a certain racial balance") (Sen. Humphrey); id. at 6566 ("[T]itle VII does not permit the ordering of racial quotas in businesses or unions....") (memorandum of Republican House sponsors); id. at 14665 ("Under title VII, not even a court, much less the Commission, could order racial quotas or the hiring, reinstatement, admission to membership or payment of back pay for anyone who is not discriminated against in violation of this title") (statement of Senate sponsors in a bipartisan newsletter delivered to Senators supporting the bill during an attempted filibuster).

The plurality's reading of the legislative history also defies common sense. Legislators who objected to racial quotas obviously did so because of the harm that such quotas would impose on innocent nonminority workers, as well as because of the restriction on employer freedom that would follow from an across-the-board requirement of racial balance in every workplace. Racial quotas would inflict such harms on nonminority workers whether such quotas were imposed directly by federal law in the form of a requirement that every workforce be racially balanced, or imposed as part of a court-ordered remedy for an employer's violations of Title VII. The legislative history, fairly read, indicates that such racial quotas are impermissible as a means of enforcing Title VII, and that even racial preferences short of quotas should be used only where clearly necessary if these preferences would benefit nonvictims at the expense of innocent nonminority workers.

At bottom, the plurality recognizes that this is so, although it prefers to cut the congressional rejection of racial quotas loose from any statutory moorings and make this policy simply another factor that should inform the remedial discretion of district courts. Indeed, notwithstanding its claim that § 703(j) is irrelevant to interpretation of § 706(g), the plurality tacitly concedes that racial quotas are improper, and that they are improper by virtue of § 703(j). The plurality says that, in considering whether to grant race-conscious affirmative relief,

the court should exercise its discretion with an eye towards Congress' concern that race-conscious affirmative measures not be invoked simply to create a racially balanced workforce.

Ante at 478 U. S. 475. Since this is precisely the congressional concern that the plurality locates in § 703(j), the plurality appears to recognize that § 703(j) is relevant, after all, to the choice of remedies under § 706(g). Moreover, the plurality indicates that a hiring or membership goal must be applied flexibly in order that the goal not be

used simply to achieve and maintain racial balance, but rather as a benchmark against which the court [can] gauge [an employer's or union's] efforts to remedy past discrimination.

Ante at 478 U. S. 478. It is fair to infer that the plurality approves the use of the membership goal in this case only because, in its view, that goal can be characterized as "a means by which [the court] can measure petitioners' compliance with its orders, rather than as a strict racial quota." Ibid.

The plurality correctly indicates that, as to any racial goal ordered by a court as a remedy for past discrimination, the employer always has a potential defense by virtue of § 706(g) against a claim that it was required to hire a particular employee, to-wit, that the employee was not hired for "reasons unrelated to discrimination." Ante at 478 U. S. 474, n. 45. Although the plurality gives no clues as to the scope of this defense, it is clear that an employer would remain free to refuse to hire unqualified minority applicants, even if as a result the employer failed to meet a racial hiring goal. Thus, an employer's undoubted freedom to refuse to hire unqualified minority applicants, even in the face of a court-ordered racial hiring goal, operates as one important limitation on the extent of any racially preferential treatment that can result from such a goal.

The plurality offers little guidance as to what separates an impermissible quota from a permissible goal. Reference to benchmarks such as the percentage of minority workers in the relevant labor pool will often be entirely proper in order to estimate how an employer's workforce would be composed absent past discrimination. But it is completely unrealistic to assume that individuals of each race will gravitate with mathematical exactitude to each employer or union absent unlawful discrimination. That, of course, is why there must be a substantial statistical disparity between the composition of an employer's workforce and the relevant labor pool, or the general population, before an intent to discriminate may be inferred from such a disparity. Teamsters v. United States, 431 U. S. 324, 431 U. S. 339 -340, and n. 20 (1977). Thus, the use of a rigid quota turns a sensible rule of thumb into an unjustified conclusion about the precise extent to which past discrimination has lingering effects, or into an unjustified prediction about what would happen in the future in the absence of continuing discrimination. The imposition of a quota is therefore not truly remedial, but rather amounts to a requirement of racial balance, in contravention of § 703(j)'s clear policy against such requirements.

To be consistent with § 703(j), a racial hiring or membership goal must be intended to serve merely as a benchmark for measuring compliance with Title VII and eliminating the lingering effects of past discrimination, rather than as a rigid numerical requirement that must unconditionally be met on pain of sanctions. To hold an employer or union to achievement of a particular percentage of minority employment or membership, and to do so regardless of circumstances such as economic conditions or the number of available qualified minority applicants, is to impose an impermissible quota. By contrast, a permissible goal should require only a good faith effort on the employer's or union's part to come within a range demarcated by the goal itself.

This understanding of the difference between goals and quotas essentially comports with the definitions jointly adopted by the EEOC and the Departments of Justice and Labor in a 1973 memorandum, and reaffirmed on several occasions since then by the EEOC and the Department of Labor. Memorandum -Permissible Goals and Timetables in State and Local Government Employment Practices (Mar. 23, 1973), reprinted in 2 CCH Employment Practices 3776 (1985) (hereinafter Memorandum); see 41 Fed.Reg. 38815 (1976) (EEOC Policy Statement on Affirmative Action Programs for State and Local Government Agencies); Office of Federal Contract Compliance Programs v. Priester Construction Co., No. 78-0FCCP-11 (Feb. 22, 1983), summarized in OFCCP Order No. 970a3, reprinted in 2 BNA AACM D:9121 (1983). In the view of these federal agencies, which are charged with responsibility for enforcing equal employment opportunity laws, a quota "would impose a fixed number or percentage which must be attained, or which cannot be exceeded," and would do so "regardless of the number of potential applicants who meet necessary qualifications." Memorandum, 2 CCH Employment Practices, at 3856. By contrast, a goal is

a numerical objective, fixed realistically in terms of the number of vacancies expected, and the number of qualified applicants available in the relevant job market.

Ibid. An employer's failure to meet a goal despite good faith efforts

is not subject to sanction, because [the employer] is not expected to displace existing employees or to hire unneeded employees to meet [the] goal.

Ibid. This understanding of the difference between goals and quotas seems to me workable, and far more consistent with the policy underlying § 703(j) and § 706(g) than the plurality's forced distinction between make-whole relief and class-wide relief. If, then, some racial preferences may be ordered by a court as a remedy for past discrimination even though the beneficiaries may be nonvictims, I would employ a distinction such as this between quotas and goals in setting standards to inform use by district courts of their remedial powers under § 706(g) to fashion such relief.

If, as the Court holds, Title VII sometimes allows district courts to employ race-conscious remedies that may result in racially preferential treatment for nonvictims, it does so only where such remedies are truly necessary. In fashioning any such remedy, including racial hiring goals, the court should exercise caution and "take care to tailor its orders to fit the nature of the violation it seeks to correct." Ante at 478 U. S. 476. As the plurality suggests, goals should generally be temporary measures, rather than efforts to maintain a previously achieved racial balance, and should not unnecessarily trammel the interests of nonminority employees. Furthermore, the use of goals is least likely to be consistent with § 703(j) where the adverse effects of any racially preferential treatment attributable to the goals will be "concentrated upon a relatively small, ascertainable group of nonminority persons." EEOC v. Local 638, 753 F.2d 1172, 1186 (CA2 1985). In sum, the creation of racial preferences by courts, even in the more limited form of goals, rather than quotas, must be done sparingly, and only where manifestly necessary to remedy violations of Title VII, if the policy underlying § 703(j) and § 706(g) is to be honored.

In this case, I agree with JUSTICE WHITE that the membership "goal" established by the District Court's successive orders in this case has been administered and will continue to operate "not just [as] a minority membership goal, but also [as] a strict racial quota that the union was required to attain." Post at 478 U. S. 499 (dissenting). It is important to realize that the membership "goal" ordered by the District Court goes well beyond a requirement, such as the ones the plurality discusses approvingly, that a union "admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce." Ante at 478 U. S. 449. The "goal" here requires that the racial composition of Local 28's entire membership mirror that of the relevant labor pool by August 31, 1987, without regard to variables such as the number of qualified minority applicants available or the number of new apprentices needed. The District Court plainly stated that, "[i]f the goal is not attained by that date, defendants will face fines that will threaten their very existence." App. to Pet. for Cert. A-123.

I see no reason not to take the District Court's mandatory language at face value, and certainly none is supplied by the plurality's conclusory assertion that "the District Court has been willing to accommodate legitimate reasons for petitioners' failure to comply with court orders." Ante at 478 U. S. 478 -479, n. 49. As Judge Winter persuasively argued in dissent below, the District Court was clearly not willing to take due account of the economic conditions that led to a sharp decline in the demand for the union skills involved in this case. Indeed, notwithstanding that petitioners have "voluntarily indentured 45% nonwhites in the apprenticeship classes since January, 1981," the District Court ordered the JAC to indenture one nonwhite apprentice for every white apprentice. 753 F.2d at 1189. The Court of Appeals set this portion of the District Court's order aside as an abuse of discretion, ibid., but the District Court's willingness to impose such a rigid hiring quota certainly suggests that the District Court intended the membership "goal" to be equally absolute.

It is no answer to these observations that the District Court on two previous occasions postponed the final date for full compliance with the membership goal. At the time of the Court of Appeals' decision, Local 28's membership was approximately 10.8% nonwhite, id. at 1187, and, at oral argument, counsel for petitioners represented that Local 28's membership of about 3,100 workers is now approximately 15.5% nonwhite. See Tr. of Oral Arg. 13. Absent an enormous expansion in the size of the apprentice program -which would be feasible only if the demand for the services of Local 28's members were dramatically to increase -it is beyond cavil that neither the "voluntary" 45% minority ratio now employed for apprenticeship classes nor the District Court's 1-to-1 order could achieve the 29.23% membership goal by Aug. 31, 1987. Indeed, at oral argument, counsel for respondents conceded as much. See id. 31-32.

I do not question that petitioners' past violations of Title VII were egregious, or that, in some respects, they exhibited inexcusable recalcitrance in the face of the District Court's earlier remedial orders. But the timetable with which petitioners were ordered to comply was quite unrealistic, and clearly could not be met by good faith efforts on petitioners' part. In sum, the membership goal operates as a rigid membership quota, which will in turn spawn a sharp curtailment in the opportunities of nonminorities to be admitted to the apprenticeship program. Indeed, in order for the District Court's timetable to be met, this fixed quota would appear to require "the replacement of journeymen by apprentices on a strictly racial basis." 753 F.2d at 1195 (Winter, J., dissenting).

Whether the unequivocal rejection of racial quotas by the Congress that enacted Title VII is said to be expressed in § 706(g), in § 703(j), or in both, a "remedy" such as this membership quota cannot stand. For similar reasons, I believe that the Fund order, which created benefits for minority apprentices that nonminority apprentices were precluded from enjoying, operated as a form of racial quota. Accordingly, I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership "goal" and Fund order are concerned, without reaching petitioners' constitutional claims.

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