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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

13 Racial Discrimination in Employment However, the Eighth Circuit has recently reversed the district court's decision. 3 3a The Eighth Circuit took sharp difference with the lower court with regard to both its findings in the record and the conclusions of law articulated. While the court recognized that there was no evidence of discrimination against particular minority group members subsequent to the passage of the Civil Rights Act, it neverless held that there was evidence of post-act discrimination: The record does show that qualified Negro tradesmen have been and continue to be residents of the area. It further shows that they were acutely aware of the Local's policies toward minority groups. It is also clear that they knew that even if they were permitted to use the referral system and become members of the union, they would have to work for at least a year before they could move into a priority group which would assure them a reasonably full employment. In the light of this knowledge, it is unreasonable to expect that any Negro tradesman working for a Negro contractor or nonconstruction white employer would seek to use the referral systems or to join either Local. 3b The court, having found discrimination to exist, required the unions to modify their employment referral systems and to conduct its journeyman's examination in a more objective and thus non-discriminatory manner. Also, the court required that the defendent Locals be obligated to undertake "... an effective public information program designed to make it clear that Negroes now have equal opportunities for union membership and related benefits. "33c A second case in the craft union referral seniority line is Dobbins v. Local 212, IBEW. 3 4 Of all the lengthy and rambling opinions which have been handed down in the seniority area, Dobbins probably exceeds them all for both verbosity and confusion. On the one hand, the Dobbins opinion seemed to side with the district court's opinion in Sheet Metal Workers on the issue of past discrimination. At the same time, however, the court stated that past discrimination could be used to remedy the consequences of the past incorporated in the present system and stated that the remedy preventing discrimination might compensate individuals who had been prevented from accumulating seniority or "time credit for work in the trade". 35 Perhaps Dobbins can be read to say that past discrimina- 33a Daily Labor Report No. 182, Sept. 19, 1969 (8th Cir. 1969). 33b id. 83c Id L.R.R.M (S.D. Ohio 1968). 35 Id. at 2328, 2341.

14 NORTHWESTERN UNIVERSITY LAW REVIEW tions can be remedied where one has separate post-act conduct which is itself unlawful. It is to be recalled that this problem is posed in Quarles. But neither Quarles nor Dobbins is especially clear about providing the answer to this question. The Dobbins opinion, however, is relatively clear about application of the jury "exclusion principle" to the craft union cases. In Dobbins, unlike Sheet Metal Workers, one finds plaintiff-applicants who were in fact discriminated against. The court in Dobbins stated: It is one thing to presume or assume prima facie-wise, or otherwise, that a significant number of a group have the qualifications for the schooling or voting or jury service. It is another thing to assume prima facie-wise or otherwise, that because of a certain number of people, be they W [white] or N [Negro], that any significant number of them are lawyers, or doctors, or merchants, or chiefs, or to be concrete, competent plumbers or electricians, or carpenters... To make out a prima facie case for class purposes, as distinguished from individual purposes, the plaintiff has the burden of showing the existence of a significant number of members of the class who are skilled and who have applied, and as to those, it has established a case. We cannot assume and do not assume from that, that there are other members of the group similarly situateda 6 Thus, although the court clearly indicated that it could strike down the Union's referral system completely, the court was reluctant to enter this area for the above-stated reasons. More recently, allegations of a pattern and practice of discrimination by a craft union have been both sustained and rejected in United States v. IBEW, Local In that case, the court found a "consensus" in all the decided Title VII industrial union and craft referral seniority cases: *. * It further appears from these authorities [the seniority cases] that pre-act practices may be considered on the question of intent in determining whether the post-act practices are discriminatory. Another point which appears to be agreed upon by the decisions in which it has been considered, is that the simple absence of Negroes from a given group is not conclusive evidence of discrimination [citing Dobbins and Sheet Metal Workers]. On the other hand, such a statistical demonstration coupled with a showing of specific acts of discrimination may 86 Id. at L.R.R.M (N.D. Ohio 1969). 372

15 Racial Discrimination in Employment be sufficient to make out a prima facie case. 88 In Local 38 the court held that the evidence relating to past discrimination was not sufficient to require a decree altering the referral system and the work experience credits given to workers who go through it. Holding that the effects of past discrimination, to the extent that the court found them to exist, had been "rather effectively... dissipated by the policies of the present union leadership," 89 the court refused to strike down the seniority arrangement. To do so, said the court, would be to violate the prohibition against preferential treatment to correct an existing racial imbalance which is contained in Title VI 4 O It is fair to say that courts have been even more reluctant to revise craft union referral seniority than they have been to tamper with the industrial union variety involved in Quarles, Local 189, and Whitfield. Two principal distinctions between industrial union and craft referral cases are, in part, responsible for this attitude. The first is that there is a relatively less objective substitute for the union practices engaged in. It is to be recalled that even in Quarles the seniority system was not abolished. Black workers discriminated against were given sufficient seniority credits so as to compete with the existing system. In the craft union cases it is necessary to devise a new system and necessarily deprive the white workers of work credits. 40 a A second problem that the courts seem to have with the craft union cases is that one does not have a clearly identifiable class about whom certain assumptions concerning skill and abilities can be made. In the industrial union seniority cases, the assumption can be engaged in because one can compare the skills required for the formerly all- 88 Id. at Id. at The court stated: Each of the Negroes who was the subject of discrimination has advanced within the referral system to the point where the effects of the prior practice no longer affects his employment opportunities. As to other Negro electricians, as to whom specific discrimination has not been shown, the union's present referral policies coupled with actual economic conditions in the home building industry, make priority within the referral system an abstract consideration in relation to an individual's ability to obtain employment. Id. at Civil Rights Act of (c), 42 U.S.C. 2000e-2(c) (1964). 40a However, as the Eighth Circuit has recently noted in United States v. Sheetmetal Workers International Ass'n., supra note 17a, the statutes concern with the protection of white incumbent workers from the loss of employment status which they now possess, does not preserve waiting lists where discrimination has been practiced while they were compiled.

16 NORTHWESTERN UNIVERSITY LAW REVIEW Negro jobs as compared with the formerly all-white jobs. In the case of the craft union seniority disputes, unless there are a substantial number of applying plaintiffs, as was the case in Dobbins, one must necessarily engage in the speculation concerning general skills available in the Negro community, an assessment covering both the unskilled and unemployed. 4 b But there is no obstacle to a court decree which would vary seniority credits depending upon skill and experience. In some trades, there are many black workers employed in the industry but, as was the case with the plaintiffs in Dobbins, outside of the union. Just as the benefit accruing to industrial Negro employees will depend upon their ability to make use of the training remedy, so also the black tradesmen's referral status depends upon experience derived from contact with the industry. One of the more pernicious themes which runs through the craft union cases is the notion that where the defendant's conduct can be shown to arise out of an "economic purpose," statutory discrimination cannot be evidenced. As the court said, in Dobbins, with regard to the size of the union or apprenticeship membership: The limitation of either union or apprenticeship membership to a number far below the number necessary for the particular trade would be a discriminatory practice and pattern in context involving an all (W)hite union membership with a previous history of discrimination. Louisiana v. United States 380. U.S. 145 (1965). However, on a showing by defendant that the limitation has nothing to do with any discriminatory intention but is related to a reasonable economic purpose, a limitation in number is not unlawful. 41 This statement, which accords with traditional national labor policy, seems to be more severe than the language set forth in cases like Quarles where industrial union seniority is involved. For it is clear that in Quarles and in most of the seniority cases, the arrangement has a perfectly valid economic purpose, let alone one that is 40b Judge Wisdom had this to say in Local 189, United Papermakers v. United States, 71 L.R.R.M. 3070, 3081 (5th Cir. 1969): It is one thing for legislation to require the creation of fictional seniority for newly hired Negroes, and quite another for it to require that time actually worked in Negro jobs be given equal status with time worked in white jobs. To begin with, requiring employers to correct their pre-act discrimination by creating fictional seniority for new Negro employees would not necessarily aid the actual victims of the previous discrimination. There would be no guarantee that the new employees had actually suffered exclusion at the hands of the employer in the past, or, if they had, there would be no way of knowing whether, after being hired, they would have continued to work for the same employer. In other words, creating fictional employment time for newly-hired Negroes would comprise preferential rather than remedial treatment L.R.R.M. at

17 Racial Discrimination in Employment "reasonable." If one is to make anti-discrimination legislation an effective tool against the discriminatory effects of seniority arrangements and apprenticeship programs, the test must be whether the effect of the practice is discriminatory and, if so, what remedy can be devised which is compatible with the employer's need for business efficiency. Thus, under this test, the court in Quarles articulated a remedy which was at odds with the existing seniority system even though the system itself certainly had a "reasonable economic purpose." Where the percentage of Negro workers in the trade is extremely small and where the practice (e.g., the size of apprenticeship and membership class) operates in a manner which perpetuates the exclusion, it is reasonable to say that a statute which aims at eliminating racial discrimination and speaks of "affirmative action" as a remedy has been violated. Much more satisfactory on this score is the Volger decision by the Fifth Circuit which was alluded to above. In Volger, the court found discrimination on the basis of "exclusionary and nepotistic policies" where white workers with limited experience had been referred to jobs and simultaneously, it was the practice of the union to refuse to consider Negroes or Mexican-Americans for either membership or referral. The Fifth Circuit sustained a remedy which: (1) ordered the parties to develop objective membership criteria and, in the meantime, provided for alternating white and Negro referrals to existing jobs in the trade; (2) stated that work experience acquired prior to the injunction and during the time in which discrimination was engaged in could not be used as a basis for referral in the future; (3) ordered Local to objectively determine the size of its membership with reference to the number of skilled asbestos workers reasonably calculated to meet present and future industry needs in its geographical area. 42 The record in Vogler indicated that the industry's manpower requirements had far outstripped the number of members that Local 53 was willing to admit. Under the Dobbins test, I believe that it would be quite easy to find an "economic purpose" for the union's conduct in this case. Surely the union was primarily, if not exclusively, concerned with limiting the number of members in the trade so as to drive up wages and fringe benefits and to decrease the number of unemployed members that were on its rolls. Thus, racial dis L.R.R.M. at

18 NORTHWESTERN UNIVERSITY LAW REVIEW crimination, in the sense of exclusion of black workers who were kept out in greater number because of the "economic" policy, is an effect of the policy and not necessarily a part of its intent at all. I would suspect that there are a good number of instances where manpower prognostications made by, for instance, the Department of Labor vary substantially from the labor market judgments made by unions and employers because of collective bargaining considerations. And, of course, one must recognize that the exclusion imposed is on both blacks and whites. It seems to me, however, that none of this detracts from the basic principle that any system which operates in a manner perpetuating prior discrimination must be modified or abolished. C. Jones v. Mayer One of the interesting conclusions of the Fifth Circuit in Volger is that the argument that nepotism cannot be equated with racial discrimination must be considered in light of both the racial policies of the defendant as well as the "general policies of racial discrimination" engaged in by the State. 4 s This suggests that courts, in interpreting Title VII, may look to other policies carried on by the state (presumably education would be particularly appropriate) 44 to shed light upon the intent of the parties in negotiating arrangements such as seniority and referral. It was the policies and practices in certain states that prompted Congress to pass Title VII as well as the Civil Rights Act of 1866 which the Supreme Court in Jones v. Mayer 45 has held to prohibit racial discrimination in housing. And it is possible, if not probable, that the holding in Jones v. Mayer provides a jurisdictional base, in addition to Title VII, for outlawing racial discrimination in employment. One reason for arriving at such a conclusion is that the Court in Jones has stated that the provision of the Civil Rights Act of 1866 which relates to labor contracts "closely parallels" the housing provisions relied upon in that decision. Secondly, the Court specifically overruled a previous decision in which the Civil Rights Act of 1866 had been held not to cover racial discrimination in employment Id. Conversely, it is the General Counsel's view that union acquiescence in an employer discriminatory policy violates the union's duty of fair representation obligation. See Quarterly Report on Case Development, Office of the General Counsel, National Labor Relations Board, pp. 6, 7, April 24, Cf. -. Coleman, EQuALrY OF EDUCATIONAL opportunrry (1966) U.S. 409 (1968). 46 Id. at 442 n.78. The Court's previous decision which is overruled is Hodges v. United States, 203 U.S. 1 (1906). 376

19 Racial Discrimination in Employment If the reasoning in Jones makes racial discrimination in employment unlawful under the Civil Rights Act of 1866, this means that many of the procedural limitations contained in Title VI1 7 can be ignored and that individuals and groups can proceed directly into court. It is this possibility that provides the most effective argument against making Jones applicable to employment. For in housing, where the position was taken by defendants that the Civil Rights Act of 1968, which is a fair housing statute, impliedly repealed the Civil Rights Act of 1866, there was no similar problem. Under both of those statutes one may proceed directly into court. However, the dissimilarities between Title VII and the 1866 Act in this respect may provide a more forceful argument against the resurrection of the Jones statute in employment. However, the Dobbins case had held that Jones makes an individual plaintiff's action alleging discrimination in a union referral system "appropriately filed" under the Civil Rights Act of That court held that the "most adaptable State statute of limitations" 49 is to govern Jones action. The tenor of Vogler, as well as recent cases requiring contractors to utilize alternate referral systems where unions cannot provide minority group workers, coupled with the Jones citation of the Griffin" 0 decision where the Court held that the remedy for evasion of an integration mandate could result in the ordering of public officials to lay taxes and raise revenues to operate the public school system, makes it possible for one to speculate rather boldly about what remedies might be forthcoming under Jones and, perhaps, Title VII as well. In Ethridge v. Rhodes," 1 a Fourteenth Amendment case in- 47 See generally Berg, Title Vl-A Three Year's View, 44 NOTRE DAME LAWYER 311 (1969); Rosen, Division of Authority Under Title VII of the Civil Rights Act of 1964-A Preliminary Study in Federal State Interagency Relations, 34 Gno. WASH. L. Rav. 846 (1966) L.R.R.M. at Contra, Waters v. Wisconsin Steelworkers of Int'l Harvester Co., Daily Labor Report, June 17, 1969, No. 137, A-2, 3 (N.D. Ill. 1969). Harrison v. American Can Company 2 F.E.P. Cases 1 (S.D. Ala. 1969). As the Harrison opinion notes, another difference between Title VII of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968 relating to the Jones statute is that... [tihis case [Jones] was not pending when Title VII of the 1964 Act was passed. Moreover, Congress knew of the pendency of Jones, but it still enacted e fair housing law and it declared in Section 815 that it did not intend to limit any other law applicable to discrimination in housing. There is no such provision in Title VII of the 1964 Act. Id. at L.R.R.M. at Griffin v. Prince Edward School Board, 377 U.S. 218 (1964) F. Supp. 83 (S.D. Ohio 1967).

20 NORTHWESTERN UNIVERSITY LAW REVIEW volving state construction work, the state was ordered to exercise supervisory responsibility over contractors and make certain contractors utilize non-discriminatory referral systems even if this involved breaching the collective bargaining agreement. In Detroit, for instance, the Board of Education operates a training center for most of the building trades. 52 In such a situation, where discrimination has been practiced, would it not be appropriate for the court to order the state which, as in Ethridge, is necessarily involved, to assure an increase in the flow of minority group workers into the trade. It is much more likely that arbitrary barriers such as age limitations and the size of the apprenticeship class which, in part, impede the progress of black workers into the trade will be dealt with effectively by the state rather than the parties through the normal collective bargaining process. And certainly the remedy is less drastic than that required by the Court in Griffin where public officials were ordered to exercise functions which are normally regarded as political. Finally, Jones is important because of its effect on the seniority dispute under Title VII. If Jones makes racial discrimination unlawful under the 1866 Civil Rights Act, there is no problem concerning the legality of past discrimination at any time. Therefore, the effect of the extension of Jones to the job arena would appear to obliterate the past discrimination arguments made in the seniority context. D. Nepotism and "Walk-in" Hiring: The Problem of Job Access As the court stated in Vogler, a practice which excludes minority group workers from the trade altogether has a much more devastating effect than the discriminatory seniority practices which deprive a worker of a certain employment status. Thus the court in /ogler, while avoiding the question of past discrimination and seniority, stated the following: Regardless of the validity of the referral seniority systems involved there, they are not analogous to the exclusion of Negroes from an all-white union by a system of nepotism. While the former might for a limited time operate to exclude Negroes, the latter probably would do so interminably. 5 " 52 See Zick, Equal Employment Opportunity in the Building Trades in Detroit (unpublished M.A. thesis on file at Wayne State Law Library) L.R.R.M. at

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