Washington Law Review


It is well known to those involved in the world of employment-discrimination law that in 1974 the United Steelworkers of America and Kaiser Aluminum & Chemical Corporation entered into a collective-bargaining agreement which provided for a new on-the-job training program designed solely to correct the virtually total absence of blacks in Kaiser's craft workforce. Fifty percent of the trainees were to be black. Brian Weber, a white production worker who failed to obtain a position in the program, instituted a class action suit alleging that the affirmative action plan discriminated against him and his white colleagues in violation of Title VII of the Civil Rights Act of 1964. When the case reached the Supreme Court, a five-to-two majority in United Steelworkers of America, AFL-CIO-CLC v. Weber upheld the affirmative action plan. Writing for the Court, Justice Brennan conceded that, under some circumstances, discrimination against whites may be outlawed by Title VII, but it did not follow that affirmative action plans fell under that prohibition. Although the language of the statute might appear to outlaw the Kaiser plan, the Court reminded us 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 Court then observed that the statute had to be "read against the background of the legislative history of Title VII and the historical context from which the Act arose. The Court's approach was a reminder for me of what one of my own law professors had claimed, sarcastically, had become the mode for statutory interpretation: if the legislative history is not clear, look to the words of the statute. Having decided that the answer to the question was to be found in the legislative history, Justice Brennan quoted many of the congressional supporters of Title VII. The general impact of all the quotes was that blacks in our society had had very bad employment opportunities due to long traditions of discrimination; this state of affairs had resulted in their having fewer of the necessities of life than were available to members of society in general. The Court recognized Congress had expressly made it clear that the Act did not require racial balancing; however, Congress had not similarly addressed the question whether racial balancing was permitted. Somehow, this fortified the Court's conclusion "that Congress did not intend to limit traditional business freedom to such a degree as to prohibit voluntary, race-conscious affirmative action." [This article was originally delivered as a speech to the Pacific Coast Labor Law Conference on May 8, 1980.]

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