1 Northwestern University Law Review Vol. 64, No. 3 Copyright 1969 by Northwestern University School of Law Printed in U.SA. THE EMERGING LAW AGAINST RACIALt DISCRIMINATION IN EMPLOYMENT William B. Gould* EVER since the civil rights demonstrations of and the subsequently enacted prohibitions against racial discrimination in employment contained in Title VII of the Civil Rights Act of 1964, the problems encountered by black workers (as well as other minorities such as Mexican-Americans and Puerto Ricans) have been a matter of public discussion.' Has the plight of the minority group worker 2 improved during this time? What is being done by the administrative agencies and courts to effectuate the principles of equal employment opportunity which have been articulated by Congress?" t This article is an expanded version of a speech delivered by the author to the Labor Law Section of the State Bar of Michigan in Detroit on April 11, * Professor of Law, Wayne State University Law School; Labor Arbitrator, Assistant General Counsel, United Automobile Workers, AFL-CIO, ; Attorney, National Labor Relations Board, ; Associated with the New York law firm of Battle, Fowler, Stokes, & Kheel, Public Member of ABA Committee on Equal Employment Opportunity Law; Chairman of Subcommittee on Employment, Committee on Equal Protection of the Law, ABA Section on Individual Rights and Responsibilities. A.B. University of Rhode Island, 1958; LL.B. Cornell University Law School, 1961; Graduate Study, London School of Economics, See generally F. MARsnALL, THE NEGRO AND ORGANIZED LABOR (1965); F. MARSHALL AND. BRIGGS, EQUAL APPRENTICESHIP OPPORTUNrrIEs--THE NATURE OF Tr IssuE AND T=E NEW YORK EXPERIENCE (1969); F. MARSHALL AND. BRIGGS, THE NEGRO AND APPRENTICESHIP (1967); NATIONAL ADVISORY COMMISSION ON CiviL DISORDERS, (1968); M. SOVERN, LEGAL RESTRAINTS ON RACIAL DISCRIMINA- TION IN EMPLOYMENT (1966); THE NEGRO AND THE AMERICAN LABOR MOVEMENT (. Jacobsen ed. 1968). 2 While many of the problems of racial discrimination in employment affect other racial minorities such as Mexican-Americans and Puerto Ricans, it must be understood that the central problem of racial discrimination in the United States continues to involve the rights of the American Negro. Cf. Kinoy, The Constitutional Right of Negro Freedom, 21 RUTGERS L. Rnv. 287 (1967); Comment, The "New" Thirteenth Amendment-A Preliminary Analysis, 82 HARv. L. REv (1969). 3 Civil Rights Act of , 42 U.S.C. 2000e-2 (1964). A thorough answer to this question is provided in a statement by Herbert Hill, Labor Director, National Association for the Advancement of Colored People, to the Daily Report, No. 237, Dec. 5, 1968, at E-1. See also U.S. CoMMISSION ON CIvIL RIGHTS, JOBS AND CIVm RiGirrs (Prepared for the Commission by the Brookings Institute) (1969). 359
2 NORTHWESTERN UNIVERSITY LAW REVIEW Two recent studies indicate that there are no easy answers to the question of whether the Negro worker is obtaining better employment opportunities and upward job mobility. The Bureau of Labor Statistics (BLS) has noted that there is a decline in long-term unemployment among black workers. 4 In 1962, 300,000 or 1/3 of the Negro workers unemployed were out of work for 15 weeks or more. This compares favorably with the 100,000 or 1/6 of black workers unemployed in the same category in Perhaps more significant is the employment increase for black workers in full time jobs and in industries where there is better pay, advancement opportunity, security and status. During the period, Negro employment in education, public administration, and durable goods increased 60% while, at the same time, there was a decline for Negro workers in agricultural and private household work. However, this is only part of the situation. As the BLS study itself noted, the bulk of Negro workers are to be found in lower level jobs regardless of industry. And even though the number of Negro workers in private household work is now declining, the fact of the matter is that they are still disproportionately congregated in less desirable jobs. 30% or more of chambermaids, janitors and sextons are black. The picture becomes even more dreary when one takes into account the ever increasing skill requirements in our economy and the elemental truth that both the educational and skill level of blacks must grow faster than those of whites so that the former group will be competitive with the latter. And, of course, a slowdown in the economy could obliterate and diminish the small gains which have been made to date. The Equal Employment Opportunity Report No. 1' has highlighted the fact that even if the educational level of the races are equal, job discrimination itself holds down a large number of black workers. 8 Moreover, the Report stated that the occupational status of Negroes in relation to the majority group tends to be lower in industries which have a large proportion of good paying jobs. As wages increase, so does the gap between Negro and white workers. Hopefully, this will not be the trend in "growth" industries like education, public administration and durable goods where the hiring 4 See Hodge, The Negro Job Situation-Has It Improved?, 92 MoNTmy L A. REv. 20 (1967). 5 EQUAL EMPLOYMENT OPPORTUNITY REPORT No. 1 (1969). 6 The REPORT states that only one-third of the racial discrimination in employment is attributable to educational deficiencies. Id. at
3 Racial Discrimination in Employment gains have been made. Finally, the Report came to this alarming conclusion: discrimination increases as the number of Negro workers in the enterprise increases. The gap between black and white workers is wider in the South than in the North and West. Indeed, the cases discussed below illustrate the point that discrimination in the South is more often between blacks and whites who are employed, whereas in the North, the principal struggle has been to provide job access for minority groups. The most bothersome offenders in the latter regard seem to be the craft unions who have all too often hoarded lucrative and more satisfying work for their friends and family who usually happen to be white. 7 Title VII of the Civil Rights Act of 1964 has provided the judiciary with a fairly broad mandate to remedy employment discrimination. But the greatest uncertainty in the interpretation of the statute surrounds the extent to which the courts may correct the evils of past discrimination which are embodied in present practices. It is becoming clear that unless the courts have the authority to reach back and deal with the past, institutional discrimination reflected in seniority and referral systems, as well as apprenticeship and journeyman examinations, cannot be remedied effectively. I. SENIORITY DISPUTES A. Industrial Union Seniority Of the cases that have been decided thus far, Quarles v. Phillip Morris' contains some of the more interesting language and has been the object of most of the discussion to date. Quarles presented the question of whether Title VII applies prospectively so as to preclude 7 See F. MARSHALL AND BRIGGS, THE NEGRO AND APPRENTICESIP (1967); O'Hanlon, A Case Against the Unions, FORTUNE, Jan., 1968, at 170. See also Address by George Romney, Secretary of Housing and Urban Development, Fourteenth National Legislation Conference, AFL-CIO Building and Construction Trades, May 12, F. Supp. 505 (E.D. Va. 1968); see Cooper and Sopol, Seniority and Testing Under Fair Employment Laws-A General Approach to Objective Criteria of Hiring and Promotion, 82 HARV. L. Rlv (1969); Gould, Seniority and the Black Worker-Reflections on Quarles and its Implications, 47 TEXAS L. REv (1969); cf. Gould, The Negro Revolution and Trade Unionism, 114 CONG. REC (daily ed. Aug. 1, 1968); United States v. Medical Soc. of South Carolina, 71 L.R.R.M (D.S.C. 1969). Contra St. Antoine, Litigation and Mediation Under Title VII of the Civil Rights Act of 1964, PREocEEINGS OF THE INSTITUTE ON EQUAL EMPLOYMENT OPPORTUNITY LAW (1969) (to be published).
4 NORTHWESTERN UNIVERSITY LAW REVIEW the judiciary from devising remedies which root out past discrimination in seniority and promotion (prior to the effective date of the Civil Rights Act, July 2, 1965) embodied in present practices of unions and employers. The issue of seniority is particularly troublesome because Congress specifically preserved a "bona fide seniority system" from attack under Title VII unless it was the product of an "intention to discriminate." ' Does then a segregated seniority system negotiated prior to Title VII taint present practices when unions and employers are willing to promote Negro workers into the better paying and more desirable jobs and departments from which they have been previously excluded but, at the same time, refuse to recognize seniority credits accumulated by the black worker in his segregated department? While a seniority arrangement which requires workers to relinquish seniority credits upon transferring out of their department or job is perfectly proper, the black worker contends that discriminatory transfer prohibitions of the past deny him seniority credits which would have been accumulated in the "white" job but for the discrimination. The denial of seniority credits which would have been accumulated exposes the black worker to immediate lay-off and disadvantage in the competition for promotion. The Quarles court was partially attracted to this argument. In considering the argument that the Title VII bona fide seniority proviso protected a seniority arrangement involving semi-skilled jobs in a cigarette plant, the court stated the following: Obviously one characteristic of a bona fide seniority system must be lack of discrimination. Nothing in 703(h), or in its legislative history, suggests that a racially discriminatory seniority system established before the act is a bona fide seniority system under the act.... The Court holds that a departmental seniority system that has its genesis in racial discrimination is not a bona fide seniority system. 10 The remedy in Quarles provides the class discriminated against, i.e., Negro workers employed, with date of hire or employment date seniority. But the breadth of the court's ruling is not as yet clear. In Quarles discrimination was found by the court to have been practiced subsequent to the operative date of Title VII. Would the result be different if discrimination had not occurred subsequent to July 2, 1965? The most confusing aspect of this issue is that the court focused upon hiring discrimination and stated that Title VII liability 9 Civil Rights Act of (h), 42 U.S.C (h) (1964) F. Supp. at
5 Racial Discrimination in Employment ceased when Negroes were hired into formerly all-white jobs. Initially, this may seem to be useful in ascertaining the class discriminated against. That is to say, all black workers hired subsequent to the cut-off date when discrimination ceased are not entitled to a remedy. However, more careful analysis than Quarles provided makes it clear that if the transfer prohibition as between black and white jobs remained intact even though the discriminatory hiring practices were stopped, black workers hired subsequent to this time are nevertheless injured. The court seemed to assume, sub silentio, that more than hiring was involved. After all, the Quarles opinion gave black workers a seniority credit remedy which does not expire at the time that hiring discrimination ceased. But what the court missed completely is the logical relationship between promotions and transfers into white jobs (not hiring) and the seniority system. While hiring is the first step in the discriminatory scheme, transfer discrimination is the sine qua non to the fashioning of a seniority remedy. The plaintiffs must be found to have been discriminated against in this aspect of the employment relationship if the seniority remedy is to be an appropriate one. Usually one will have to infer discrimination from segregated departments or jobs, and it is my position that the inference is not difficult to draw unless the skills required for each job contrast to an extreme degree thereby making the possibility of promotion unlikely. 11 Despite such deficiencies, the Quarles opinion is clearly at odds with some of the assumptions underlying the Fifth Circuit's pronouncements in Whitfield v. United Steelworkers.1 2 Dealing with an allegation by black workers that a union had violated its duty of fair representation under the National Labor Relations Act through a seniority arrangement, the court stated that past discrimination could not be remedied. "This is a product of the past. We cannot turn back the clock."' 3 But Whitfield arose in the steel industry where separate lines of progression divided Negroes from whites and where the skills required for each line differed substantially. In Whitfield, although black workers in the segregated line could 11 Gould, Seniority and the Black Worker-Reflections on Quarles and its Implications, supra note 8, at See generally Gould, Employment Security, Seniority and Race-The Role of Title VII of the Civil Rights Act of 1964, 13 How. L.J. 1 (1967) F.2d 546 (5th Cir.), cert. denied, 360 U.S. 962 (1959). IS Id. at
6 NORTHWESTERN UNIVERSITY LAW REVIEW bid into the white jobs before the employer hired whites from the street as had been done in the past, the negotiated union-employer plan qualified this right in two important respects: (1) a new qualifications test was imposed upon black workers which the white incumbents had not been required to take; (2) black workers were entitled to fill only the bottom job on the formerly white line of progression and, as a consequence, would have to take a pay cut in order to transfer. Thus, past seniority credits accumulated in the segregated line were not recognized. The Fifth Circuit rejected the contention of Negro workers that the plan was inequitable, noting that the line of progression structure was "conceived out of business, not out of racial discrimination."' 4 Although the cigarette plant departmental structure in Quarles served "... many legitimate management functions.... [in that it] promotes efficiency, encourages union employees to remain within the company because of prospects of advancement and limits the amount of retraining that would be necessary without departmental organization,"' 15 the court distinguished Whitfield. Said the Quarles opinion: "Present discrimination was allowed in Whitfield only because it was rooted in the Negro employees' lack of ability and training to take skilled jobs on the same basis as white employees."' 16 Therefore, in the view of the Quarles court it was the business necessity in Whitfield which "dictated the limited transfer of privileges under the contract."' 7 This characterization of the Whitfield holding and the implied tolerance of the Fifth Circuit's conclusions constitute the most severe limitations of the Quarles opinion and pose obstacles which will surely haunt the judiciary until the Supreme Court resolves these problems. Quarles has said in fairly unmistakable language that its pronouncements about the evils of past discrimination and the present consequences that are involved in its toleration are not applicable to jobs other than those of the type involved in Quarles where on-the-job training necessary for the Negro discriminatee has previously been provided to whites who moved into the same jobs. In other words, Quarles seems to say that wherever the difference in the jobs involved would require a costly training remedy to be imposed for the discriminatee class, the court's hostility towards past discrimination is 14 Id. at F. Supp. at Id. at Id.
7 Racial Discrimination in Employment inapplicable. Unfortunately, this approach is reflected in the Fifth Circuit's recent decision in Local 189, United Papermakers v. United States, ra where Quarles was relied upon to support a holding that a "job" seniority system was unlawful where it carried ".. forward the effects of former discriminatory practices [and] the system [resulted]...in present and future discrimination." 17 b Speaking for a unanimous court, Judge Wisdom-who also wrote the court's opinion in Whitfield-emphasized the fact that Negro workers involved in Local 189 were presently qualified to perform the white jobs from which they were previously excluded. Said the court: Not all "but-for" consequences of pre-act racial classification warrant relief under Title VII. For example, unquestionably Negroes, as a class, educated at all-negro schools in certain communities have been denied skills available to their white contemporaries. That fact would not, however, prevent employers from requiring that applicants for secretarial positions know how to type, even though this requirement might prevent Negroes from becoming secretaries....secretaries must be able to type. There is no way around that necessity.1c But Judge Wisdom's opinion did not directly address itself to the situation in which the employer becomes implicated in the discriminatory pattern by hiring the ill-prepared segregated graduate in an unskilled non-promotable job. However, the court's attempt to distinguish Whitfield as a case involving business necessityl 7 d, makes it clear that Local 189, like Quarles, declares relief in the form of a training remedy unavailable in the above-noted type of case.1re 17a 71 L.R.R.M (5th Cir. 1969). 17b Id. at C Id. at The Business necessity rationale has not always constituted an effective defense under the National Labor Relations Act. See NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). 17d In Whitfield, unlike the present case, the two lines [of progression] were not so functionally related that experience at the top of the formerly black line could provide adequate training for the bottom jobs in the white line. Id. at Additionally, however, the court quite properly noted that Whitfield did not involve "... the measure of promotion from one job to another" within the previously all-white sector. Id. ie Curiously, the Court cites Gaston County v. United States, 37 U.S.L.W (1969), where the Court refused to uphold a voter literacy test under the Voting Rights Act of 1965 where it was based upon the inferior education inherent in segregated schooling, for the proposition that past discrimination need not have been unlawful at the time at which it occurred in order to be recognized as unlawful when embodied in a contemporary system. However, Gaston County also stands for the proposition that voting plans which are perfectly proper in vacuo become im- 365
8 NORTHWESTERN UNIVERSITY LAW REVIEW 1. Remembrance of Things Past The weight of lower court authority thus far seems to hold that it is impractical and perhaps unlawful for courts hearing Title VII seniority cases to look too far back into the past to discover discrimination and fashion remedies. In Culpepper v. Reynolds Metals Co. 8 involving a seniority dispute in an aluminum plant, two approaches were put forward. First, the court, in rejecting what was essentially a claim for plant-wide seniority by black workers previously segregated into all black departments, dismissed the complaint because the defendant was mending its ways "well before the effective date of the Act."' 9 More specifically, in regard to the effective date of the statute, the court said that segregation which is a "holdover from older days far antedating the Civil Rights Act of 1964 ' ' 20 was not to be relied upon in finding discrimination or fashioning a remedy. Culpepper-which relied upon the Clark-Case memorandum and its hostility toward the possibility that new hires would take away future seniority rights from an all-white work force 21 -can be seen to be a shade more ambitious than the approach taken by the court in United States v. H.K. Porter, 22 a steel plant controversy. There the court avoided the question of whether the statute was strictly prospective so as to preclude reliance upon past discrimination and dismissed most of the complaint on the theory that elimination of inter-departmental transfer prohibitions in 1962 and the negotiation of bump-back rights for black transferees blocked out prior discrimination. The upward mobility of black workers in both H.K. Porter and Culpepper prior to the statute appears to have been a bit more wide-spread than was the case in Quarles. Only in the United States v. United Papermakers, Local permissable where tied to racial inequities in the past. This is a proposition which Judge Wisdom refuses to accept in toto in the employment context L.R.R.M (N.D. Ga. 1968). 19 Id. at Id CONG. REc (1964). For a lengthy discussion of this memorandum which was written by the Department of Justice to explain the statute's impact on seniority, see Cooper and Sopol, supra note 8. See also Blumrosen, The Duty of Fair Recruitment Under the Civil Rights Act of 1964, 22 RUTGERS L. Rnv. 465 (1968) L.R.R.M (N.D. Ala. 1968) L.R.R.M (5th Cir. 1969); cf. Hicks v. Crown-Zellerbach Corp. 69 L.R.R.M (E.D. La. 1968). 366
9 Racial Discrimination in Employment does the court seem to follow the lead on past discrimination given in Quarles. In United Papermakers the challenge of dealing with past discrimination was met head on. The court stated that it has an obligation to deal with the present consequences of past discriminatory practices. Culpepper and H.K. Porter, on the other hand, have lined up with the Whitfield rationale that the past cannot be undone. Much of the Whitfield approach as carried over into the Title VII cases stems from two arguments: (1) that past discrimination was not unlawful at the time that it was practiced by the parties and therefore a remedy to deal with it is inappropriate; (2) white incumbent workers have expectations that are predicated upon collective bargaining agreements that have been negotiated for them and it is improper to disturb such expectations. This is what the Culpepper opinion probably had in mind when it said that rejection of a departmental seniority system would create "untoward confusion and serious labor management problems. 24 It seems that the basic answer to the second problem is that such expectations have been predicated upon segregation which cannot be sanctioned by government. In dealing with the fears of white incumbents, one must remember that black workers are generally not requesting a remedy that will oust the white worker from his present job. What is at issue is the competition for vacancies that will occur and here the basis upon which seniority is computed becomes all important. Also, the obligation on the part of the unions to represent all employees fairly would appear to make a substantial portion of racial discrimination practiced prior to Title VII unlawful, at least where a union and collective bargaining agreements are involved. 25 Very often that is the case where one is talking about seniority and promotion disputes. Moreover, as we shall see below, it is possible that the L.R.R.M. at See Steele v. Louisville & N.R.R., 323 U.S. 192 (1944). For discussions of this decision and its progeny, see SovERN, RACE DISCRIMINATION AND THE NATIONAL LABOR RELATIONS AcTr-THE BRAVE NEw WORLD OF MmANDA (1963); Aaron, Some Aspects of the Union's Duty of Fair Representation, 22 OmIo ST. L.. 39 (1961); Cox, The Duty of Fair Representation, 2 VILL. L. REv. 151 (1957); Gould, The Negro Revolution and the Law of Collective Bargaining, 34 FoRIHA_ L. REv. 207 (1965); Murphy, The Duty of Fair Representation Under the Taft- Hartley, 30 Mo. L. REv. 373 (1965); Rosen, The Law and Racial Discrimination in Employment, 53 CAL. L. REv. 726 (1965); Sherman, Union's Duty of Fair Representation and the Civil Rights Act of 1964, 49 MINN. L. REV. 771 (1964); Sovern, The National Labor Relations Act and Racial Discrimination, 62 COLUM. L. Rav. 563 (1962). 367
10 NORTHWESTERN UNIVERSITY LAW REVIEW Supreme Court's decision in Jones v. Mayer 28 which held that the 1866 Civil Rights Act outlaws racial discrimination in housing can be applied to the employment field as well. If this is so, job discrimination on account of race has been unlawful for more than one hundred years and the argument against looking to the past fails entirely. 2. The Employer's Interest in Business Efficiency As noted above, Quarles and Local 189 purport to agree with the Whitfield decision because "business necessity" was involved in the latter case, whereas "business justification" for the departmental seniority structure was involved in the former. Presumably, this difference in language has significance for the Quarles and Local 189 courts and is bottomed upon its assessment of the skills required in the Whitfield situation. A fear of tampering with the seniority system and the consequences that such revisions may have for plant efficiency coupled with excessive solicitude for white incumbents is a theme which permeates both Whitfield and H.K. Porter. In H.K. Porter the court concluded that: (1) "[slignificant differences in the skills and abilities required between the [previously white and black] departments" and the prevalence of departmental seniority systems in other plants where the racial discrimination issue was not involved, undercut the argument that plant-wide seniority should be used for promotion, layoff and bump-back purposes, and (2) a finding in favor of the Negro employees would be unfair to "white employees who, having worked their way up to their positions in the lines of progression, would be subject to being in effect frozen there while employees from other departments bid in for the jobs above them in the progression lines." 2 The problem with this approach is that it ignores the possibility that a training remedy may be devised for the discriminatee class which will improve the basic skills thus qualifying black workers previously segregated for trial periods in new jobs. Moreover, H.K. Porter failed to point out that a remedy can, on the one hand, recognize the black workers' statutory right to past seniority credits and, on the other hand, make sure that such credits are not invoked until it is certain that plant efficiency can be properly safeguarded. Thus, U.S. 409 (1968) L.R.R.M. at
11 Racial Discrimination in Employment the court may use the "residency" concept in formulating seniority decrees. The theory involved in "residency" is that when an employee has resided in a particular job or department for a period of time after which it can be presumed that he has learned the job and, in the case of a line of progression, has sufficient knowledge to proceed to the next job in the line, he may invoke his full seniority credit. At such time, the concept of "residency" would permit the employee to invoke past seniority since the reason for denial at the outset of his employment in the new job or department was the unfamiliarity with the operation and lack of skills and that deficiency has been remedied. As I have already indicated, where training is required to help overcome this unfamiliarity, it is an appropriate remedy under the "affirmative action" remedial provisions of Title VII. Certainly an order requiring some form of training for the discriminatee class would seem to be in order in both Whitfield and H.K. Porter. I am of the view that Quarles and Local 189 have done a great deal of damage to the goal of equal employment opportunity by distinguishing Whitfield and indicating that that decision still has validity today. In my judgment, the Whitfield decision was an erroneous one under the duty of fair representation provisions of the National Labor Relations Act. I am persuaded that the same conclusion is accurate in the case of Title VII of the Civil Rights Act of It is likely that the Fifth Circuit is having some second thoughts about Whitfield and, perhaps, is skeptical about the narrowness of the Quarles opinion. Recently, in Local 53, International Association of Heat and Frost Insulators v. Vogler, 28 the court, citing seniority cases, 29 has stated the following: [n formulating relief from such practices [discriminatory referrals systems] the courts are not limited to simply parroting the Act's prohibitions but are permitted, if not required, to "order such affirmative action as may be appropriate"... Where necessary to insure compliance with the Act, the District Court was fully empowered to eliminate the present effects of past discrimination. s0 Although the Vogler decision does not directly involve seniority systems, it is perhaps significant that the court did not cite Whitfield at any point in its opinion L.R.R.M (5th Cir. 1969). 29 Id. at Id. 369
12 NORTHWESTERN UNIVERSITY LAW REVIEW Perhaps even more important is the recent statement by Judge Tuttle, writing for the Fifth Circuit in United States v. Hayes International Corp.Sa0--another industrial union seniority case. Said the court: Whitfield was not a Title VII case and therefore not controlling. Furthermore, to the extent that it can be read as limiting the power of courts to order "such affirmative action as may be necessary," [citation] to simply barring any further application of discriminatory practices, Whitfield is inconsistent with the words of the statute, its purposes and thrust of recent cases in this circuit...[citing Vogler, and Local ].30b B. Craft Union Referral Seniority The first of the Title VII craft union seniority cases is United States v. Sheet Metal Workers International Association. 3 ' In Sheet Metal Workers the Attorney General brought suit against two craft unions under the Civil Rights Act, both unions having an all-white membership and an extremely small percentage of Negro apprentices. Although the Attorney General alleged failure to admit Negroes into the apprenticeship program and to use their hiring referral systems on a nondiscriminatory basis, the court dismissed the complaint on the evidence submitted and stated the following:... [M]ere absence of Negroes in a particular group [cannot] constitute proof of a pattern of discrimination in the absence of some showing that the group could represent a cross-section of the community in which there is a substantial proportion of Negroes, such as was with the situation in the jury discrimination cases which established the so-called "exclusion principle. '32 While the court acknowledged that the evidence showed that the unions had excluded Negro workers prior to the effective date of Title VII, it noted that both unions were making a determined effort to recruit minority group employees since that date. On the question of whether Title VII cannot be used to remedy past discrimination, Sheet Metal Workers was quite clear: "The Civil Rights Act of 1964 was not intended to penalize unions or others for their sins prior to the effective date of the Act. It is prospective only. Neither was it passed to destroy seniority rights in unions or in business." 33 soa 2 F.E.P. Cases 67 (5th Cir. 1969). SOb Id. at 69, n F. Supp. 719 (E.D. Mo. 1968); cf. United States v. IBEW, Local 38, 71 L.R.R.M (N.D. Ohio 1969) F. Supp. 719, Id. at