| 摘要 | THE WEBER CASE
In its opinion in United Steelworkers of America and Kaiser Aluminum & Chemical Corporation v. Weber, the Supreme Court, dividing five to two, ruled that Title VII of the Civil Rights Act of 1964 permitted employers and unions in the private sector to adopt collectively bargained affirmative action plans for the purpose of eliminating manifest racial imbalances in traditionally segregated job categories. The majority declined to define the limits of such ostensibly voluntary quotas, or to deal with court-ordered quotas as a remedy for proven violations of the act, or to consider the effect of Executive Order 11246 (covering government contractors). Nevertheless, the opinion has been extravagantly hailed as an unqualified endorsement of “affirmative action” in employment. To appraise that assessment, it is necessary to examine the opinion and its background in some detail.
The Facts and the Issues
Kaiser opened its plant in Gramercy, Louisiana, in 1958. By the 1970s, blacks constituted approximately 39 percent of the labor force in the Gramercy area, but less than 15 percent of the plant’s work force and less than 2 percent of its craft workers. Kaiser had hired only craftsmen (carpenters, electricians, and machinists, and so on) with five years industrial experience—experience rarely possessed by blacks, who had previously been excluded from craft unions. As a result, Kaiser’s efforts to recruit trained black craftsmen—although apparently bona fide—had been largely ineffective.
In 1974, Kaiser addressed that recruitment problem in its collective bargaining agreement with the United Steelworkers of America. That agreement provided for a new in-plant craft training program at Gramercy (as well as at Kaiser’s other aluminum and container plants). At least one black was to be admitted to the training program for every white until the percentage of black craft workers equalled the percentage of blacks in the Gramercy work force, or 39 percent (a goal that the company estimated would be reached in thirty years). Black and white applicants were to be chosen on the basis of their relative plant seniority within their racial group. Since the plant employed more whites than blacks and since whites had, on the whole, more seniority, the separate racial seniority lines appeared to discriminate against whites.
Kaiser, a contractor with the federal government, gave three reasons for adopting this program: (1) pressure from federal contract compliance officers, (2) fear of litigation by blacks, and (3) a belief that such programs advanced national policy.
In 1974, Brian Weber, a white man, was turned down for three skilled training programs at Gramercy even though he had more seniority than two successful black candidates. He then brought a class action challenging the 50 percent minority admission quota under Title VII. He won in the federal district court, which enjoined the use of race as a criterion for admission to the program, and in the Court of Appeals for the Fifth Circuit, with Judge.
Double Talk and Double Standards
Wisdom dissenting. That court emphasized and sustained the district court’s finding that Kaiser had not been guilty of any past discrimination at its Gramercy plant. The case then came to the Supreme Court.
On the surface, Weber presented the question of how “equality” had been defined by Congress in the 1964 Civil Rights Act. But not far below the surface were larger and more contentious issues. Did intervening conditions, including the Supreme Court’s own decisions, warrant a change in the mandate or the policy of Congress? If so, was it proper for the Court, rather than Congress, to make that change?
Justice William Brennan, who wrote the Court’s opinion, purported to deal only with the narrow issue of construction. Chief Justice Warren Burger and Justice William H. Rehnquist (who wrote the principal dissent) objected that, under the guise of construction, the Court was rewriting the mandate of Congress. When basic clashes of values lie behind constructional problems, such protests are as familiar as “Kill the umpire.” Nevertheless, in Weber, the protest has extraordinary power. Indeed, the Court’s argument is so weak that it is embarrassing to subject it to conventional legal analysis. But such analysis is a necessary first step in an effort to understand the limitations and implications of the Court’s decision.
… the Court’s argument is so weak that it is embarrassing to subject it to conventional legal analysis.
The Opinion of the Court
Title VII outlaws all employment discrimination against an individual on grounds of race. Thus, the statute’s central provision makes it unlawful
for an employer—
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin … [emphasis added].
Another provision dealing specifically with on-the-job training programs also barred employers or unions from discriminating against any “individual because of his race. …” In the light of those provisions, the Court’s opinion virtually conceded that Weber’s position was supported by a literal interpretation of the Civil Rights Act. But it rejected such an interpretation as incompatible with the spirit of the act and the intention of its makers. Brennan supported this position with these reasons: Congress’s primary purpose had been to open to blacks jobs from which they had traditionally been barred. Weber’s proposed interpretation was unacceptable because it would prohibit effective steps by private firms to accomplish that purpose. Quoting from the late Senator Hubert Humphrey, the justice observed that it would
be ironic indeed if a law triggered by a nation’s concern over centuries of injustice and intended to improve the lot of those who had been “excluded from the American dream for so long” were also to be the first blanket prohibition of all voluntary private, race-conscious efforts to abolish old patterns of racial segregation and hierarchy.
Brennan found a central justification for his position in section 703(j) of the act, which provides that nothing in Title VII shall be interpreted to require any employer to grant any preferential treatment to any individual or to any group because of a racial (sexual, et cetera) imbalance in an employer’s work force. He urged that Congress’s use of “require” rather than the phrase “require or permit” shows that Congress “did not mean to prohibit all race-conscious affirmative action to redress racial imbalance.” Such a blanket prohibition would, he continued, ignore the fact that section 703(j) had been prompted by the concern about excessive federal regulation expressed by some legislators.
Brennan explicitly declined to go beyond the case before the Court and to delineate the scope and limits of the governing principle. Nor did his listing of those aspects of the Kaiser-USWA plan that in combination made for its legality do much to dissipate the murkiness inherent in the Court’s avowedly ad hoc approach. We will look at that list below and suggest that the Court has not yet explicitly endorsed all “affirmative action” preferences even for blacks, and has ostensibly reserved for the future decisions on preferences for women, Hispanics, and other groups.
In the Court’s opinion, only a brief footnote was devoted to the troublesome case of The University of California v. Bakke (1978), which had held that Title VI of the Civil Rights Act outlaws the adoption of explicit racial quotas in federally funded medical schools. Brennan dismissed that case principally on the ground that Title VI and Title VII shed no light upon one another since the former had been enacted pursuant to congressional power to condition federal expenditures and the latter pursuant to the commerce power.
This suggestion—that a different constitutional basis for the two titles implies different substantive standards for each of them—is not supported by any functional consideration. Furthermore, it ignores the fact that both titles incorporated a broad antidiscrimination principle. It is odd indeed to learn from the Court’s parsimonious footnote that these two titles of the Civil Rights Act should be severed from each other, even though they had been integrally connected by the approach of all the justices in Bakke as well as by common language, purpose, and history. This oddity calls to mind the remark of Thomas Reed Powell (a distinguished law teacher at the Harvard Law School when Brennan was a student there) that a legal mind is one that can think about one subject while refusing to think about another subject inextricably tied to the first.
The Dissents
The core of Rehnquist’s dissent is reflected in his charge that “[t]he Court eludes clear statutory language, ‘uncontradicted legislative history’ …, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions.” In his lengthy opinion he relentlessly documents each criticism he leveled against the majority. The power of his opinion is, in part, the power of repetition—especially the repetition of excerpt after excerpt from the legislative debates—all to the effect that under the act employers were not to be permitted (or required) to discriminate in favor of blacks or whites, that racial quotas, voluntary or involuntary, were to be forbidden. A summary cannot, accordingly, convey the force of this argument.
The power of Rehnquist’s opinion came also from his clean craftsmanship in disposing of the Court’s argument that the use of “required” in section 703(j) implied that some “voluntary” racial preferences were to be allowed. Rehnquist’s response went like this: Section 703(j) had been designed to satisfy the bill’s critics, who had urged that the act would be interpreted by courts and official agencies to require employers with racially unbalanced work forces to grant preferential treatment to minorities. There had been at that time no need to deal with truly voluntary, in addition to officially required, quotas. For the language of Title VII, as proponents and opponents of the bill both understood, plainly banned voluntary quotas. Indeed, never once during the eighty-three days of Senate debate did a speaker suggest that the bill would permit employers to adopt voluntary preferences in favor of blacks. It was ironic, first to label Kaiser’s plan as “voluntary,” when it had actually been induced by pressure from federal agencies charged with enforcing Executive Order 11246 against government contractors, and then to uphold that plan by invoking section 703(j), which had been designed as protection against employers’ being forced into quota systems by government pressures. Rehnquist added the final blow by pointing to the express provision in Title VII permitting firms on or near an Indian reservation to grant publicly announced preferences to Indians living close by. He urged that had Congress wished to permit such preferences for blacks it would have used similar language.
Rehnquist’s persuasive textual and historical analysis is, moreover, wholly compatible with the statute’s primary purpose, as defined by Brennan—to help blacks get jobs. That end was, however, to be advanced by a particular means, by incorporating into law the equal opportunity for employment that had for so long been denied to blacks. It was clear in 1964, as it still is today, that ensuring such opportunity would help blacks enter the economic mainstream. But it was also clear that legal protection of equal opportunity for blacks could not have been enacted if whites had not expressly been accorded the same protection as blacks.
Furthermore, the broad sweep of the antidiscrimination principle had deep moral as well as political roots; equal opportunity for individuals and the irrelevance of their membership in particular racial groups—black or white—had been a classic but unrealized goal of American society. To be sure, equal opportunity, without concern for unequal conditions, could be an idle ritual. But the attack on unequal conditions was not to be based on race or to involve selective employment discrimination against “innocent whites.” Instead, that attack was to be based on need or disadvantage—a criterion that cut across racial lines and that was both a better measure of inequality of condition and less troublesome, morally and politically, than race.
… the attack on unequal conditions was not to be based on race. … [but rather] on need or disadvantage—a criterion that cut across racial lines and that was both a better measure of inequality of condition and less troublesome, morally and politically. …
Chief Justice Burger joined in Rehnquist’s dissent, but disagreed with him on the ultimate policy question. Rehnquist had expressed distaste for racial quotas. Burger, however, endorsed as a citizen the end sought by the majority—legalization of action such as Kaiser’s. His endorsement of the Court’s end (without discussing the policy issues) underscored his disapproval of the Court’s means, which, he suggested, were an intellectually dishonest assumption of legislative powers.
Post-1964 Developments
None of the three opinions we have touched on covered in any detail developments—judicial and executive—following the passage of the 1964 act that had generated pressures on private employers to adopt employment practices of questionable legality. Justice Harry Blackmun, in his concurring opinion in Weber, emphasized those pressures. Although acknowledging his “misgivings” as to whether the pertinent legislative history supported the Court’s result, Blackmun found that result supported by “additional considerations, practical and equitable only partially perceived, if perceived at all, by the 88th Congress.”
Presumably those considerations were related to a series of judicial decisions under Title VII and executive decisions under Executive Order 11246 (covering government contractors) that purported to require color blindness in employment decisions while exerting great pressure on employers to achieve in their work force statistical proportionality for blacks, women, and other “protected” groups. Thus, the Supreme Court in Griggs v. Duke Power Co. (1971) had barred the use of professionally developed tests—even in good faith—if they had a disproportionately adverse impact on blacks, unless the employer proved “business necessity.” The Court also deferred to and legitimated the stringent guidelines of the Equal Employment Opportunity Commission (EEOC) for validating tests in which blacks as a group do relatively badly. The resulting burdens of validation involved such expense and difficulties that they undercut the statutory proviso designed to preserve professionally developed tests used in good faith. These impediments to employers’ relying on “objective” criteria complemented rules whereby proof of statistical imbalances in a work force could alone lead to back-pay liability to large classes of employees as well as to reputational injury to those found guilty of “discrimination.”
The “moral” of all this was clear to employers: There was safety in numbers or in some kinds of numbers—that is, numbers tending to show statistical parity for blacks would not only reduce the risk of charges of or liability for statistical imbalances, but would also be helpful should an individual employee charge particularized and intentional discrimination by the employer.
While these pressures for race-conscious hiring were emerging, the Supreme Court continued to proclaim the color-free theme of Title VII. Indeed, in Griggs itself, the Court had announced that the statute outlawed all racial criteria and that it proscribed all “discriminatory preference for any group, minority or majority.” Thus the Court purported to bar an employer from using race-conscious or quota hiring in order to avoid the statistical imbalances that might well be the road to costly litigation and liability.
A similar ambivalence regarding equal opportunity and equal outcomes for groups developed under Executive Order 11246. That order required government contractors to commit themselves both to “affirmative action” and to a comprehensive nondiscrimination obligation. But the administration of the order emphasized results. Equality of opportunity insofar as it meant race-free decisions was superseded by, or measured by, equality of outcome. An employer’s performance and compliance were measured by the representation of minorities in his work force and in the population—or some population—or in some labor market. Compliance agencies pressed contractors for goals and timetables or “commitments” even without any showing of past or present discrimination. Despite the pressure for racially oriented decisions exerted by these ill-defined extra-statutory requirements, the regulations contained the usual contrapuntal disclaimer that the use of goals and timetables “is not intended to discriminate against any applicant or employee because of race, color, religion, sex or national origin.”
These developments, despite their ambivalence, generated expectancies of, and constituencies for, continued “reverse discrimination.” Furthermore, some disinterested observers supported such programs on the ground that individual blacks had suffered because of their race and that, accordingly, they should be helped by compensatory programs that were racially oriented. Still others dismissed any legal or moral problems involved on the “practical” ground that, in the real world, curtailment or dismantling of the policy of selective discrimination would threaten social peace.
Blackmun’s Opinion
In Weber, Blackmun scarcely mentioned such broad issues (some of which were discussed in Bakke). He emphasized the plight of business subject to contradictory commands from the government, stating:
The broad prohibition against discrimination places the employer and the union on … a high tight rope without a net between them. If Title VII is read literally, on the one hand, they face liability for past discrimination against blacks, and, on the other, they face liability to whites for voluntary preferences adopted to mitigate the effects of prior discrimination against blacks.
Stressing that alleged dilemma, the government in Weber argued that employers and unions “who had committed arguable violations of Title VII” should be free to make “reasonable responses” without fear of liability to whites. Blackmun favored that approach, which would have focused on the employment practices of a particular firm. Nevertheless, he joined in the Court’s opinion because in the end he found that employers would have substantially the same leeway with respect to racial preference under both approaches. Moreover, he perceived “strong considerations of equity” supporting the majority’s approach of permitting preferential treatment designed to remedy the effects of societal discrimination. Indeed, adding insult to injury, he protested that Mr. Weber seemed “unfair” in challenging Kaiser’s efforts to rectify historic discrimination—even though the Court had upheld a similar protest in Bakke.
In any event, the “arguable violation” approach favored by Blackmun and the government suffers from fundamental and manifest difficulties. It is needed only if Title VII in general bars all employment discrimination—in favor of or against blacks. But if the statute is read in that way, it is not apparent why arguable discrimination against members of one group should justify actual and undeniable discrimination against members of another group. All of Blackmun’s subsidiary arguments beg that question and seek to convert a broad antidiscrimination principle into a question of whose ox is gored (to use Alexander Bickel’s phrase). This is not to deny that under Title VII—among other regulatory contexts—employers have been faced with the risk of being damned if they do (engage in reverse discrimination) and damned if they do not. Such dilemmas are, of course, undesirable. Nevertheless, in resolving them in the Title VII context, the critical point is that that statute was designed to regulate employers and to protect employees. And if a choice must be made between a quieter life (or government contracts) for employers and the abrogation of statutory protection for some classes of employees, nothing in the statute suggests that the employees’ interests should be sacrificed.
Finally, the employer’s alleged dilemma is often a false one—because future affirmative action cannot wipe out liability for past violations. To be sure, affirmative action may divert attention from, and thereby avoid remedies for, past discrimination, but only at the expense of adequate relief for identifiable victims of such discrimination. Indeed, Blackmun seems to endorse voluntary quotas in part because they fuzz things up in this way. Assume for example that, after the Civil Rights Act became effective, an employer engaged in discrimination against two black employees. In order to bolster his legal position the employer grants preferences to two other blacks, who were not directly affected by the employer’s wrong. The equity of such results is elusive—and when, as in Weber, the employer has not even been found guilty of actual discrimination, the equitable support for racial preferences surely does not grow stronger.
Such indifference regarding a link between the victims and beneficiaries of particular wrongs and remedies contrasts sharply with the sensitivity to such relationships reflected in opinions of the Supreme Court or of individual justices in cases such as Franks v. Bowman Transportation Company (1975) or Bakke (1978). Those cases suggest, moreover, that substantial constitutional questions arise from a statute that permits an employer to grant voluntary preferences to blacks but prohibits such preferences to whites. The majority of the Court was wholly silent about these interrelated equitable and constitutional questions.
“Additional Considerations, Practical and Equitable”
It is now useful to look more closely at Blackmun’s general claim that “additional considerations, practical and equitable, only partially perceived, if perceived at all by the 88th Congress” support the Court’s conclusion. It is worthy of emphasis that these unperceived considerations are not developments external to the structure of regulation; on the contrary they consist of the judicial decisions and executive practices that have generated great pressures for statistical parities and racial quotas, despite the resultant tensions with the statutory language and history. Blackmun’s statement thus involves a reversal of roles, a painful failure to recognize whose perceptions—the judiciary’s or the Congress’s—should be respected in nonconstitutional cases. For Blackmun is implying that Congress failed to perceive that the judiciary and the executive would undercut the political and ethical bargain reflected in Title VII, and also failed to perceive that the judiciary, along with the executive, would generate pressures on employers to ignore the statute and to discriminate against members of some groups (including white males) in order to get protection against charges of discrimination against members of other groups (including blacks and females). Nevertheless, Blackmun finds that it is not the Court’s inadequate perceptions but those of the Congress that now require a drastic and explicit narrowing of the antidiscrimination principle written into the statute. This change is necessary not to protect the original policy of the statute but rather to protect those whom it regulates from the conflicting pressures of contradictory policies that have been shaped by the courts, the EEOC, and the Office of Federal Contract Compliance (OFCC)—bodies that are supposed to implement the constitutional mandates of Congress.
Weber is another important step in the transformation of the … ideal of equal opportunity for individuals into a new program of equal outcomes for groups that is more divisive than the older ideal and fundamentally inconsistent with it.
The Court had another obvious alternative, namely, to seek to respect the language and history of the statute and to make clear that if doing so placed an innocent employer in an intolerable situation the Court would reexamine and, if need be, revise earlier decisions. For the change made by Weber is plainly not a response to a minor hitch, unforeseen by Congress, of the kind that often emerges as a statute is administered. On the contrary, that change goes to the roots of the bargain reached in the Eighty-eighth Congress and to the roots of our tradition. Weber is another important step in the transformation of the classic and widely supported liberal ideal of equal opportunity for individuals into a new program of equal outcomes for groups that is more divisive than the older ideal and fundamentally inconsistent with it.
Affirmative Action and the Court’s Role
It is not possible here to review the arguments over the relationship of these competing concepts of “equality” to equity and order. What merits emphasis here is that the resolution of such questions by the Court under the guise of statutory construction strains its institutional competence. Thus the Court’s opinion does not even notice some questions relevant to a disinterested and informed choice between those two concepts. And one need not romanticize the process of legislative investigation or legislative decision to recognize that litigation is as ill-suited for informing the Court regarding the pertinent questions as the Court is for resolving them. It may be useful to mention some of the pertinent questions neglected by the Court.
Is official pressure for affirmative action a substantial factor in the location of plants away from the centers of black population, with a view to avoiding pressure for the quota hiring required to redress statistical imbalance? As a consequence, are the most disadvantaged blacks being hurt by regulation designed to help them? Will the shift from equal opportunity for individuals to equal outcomes for groups undermine the consensus that was, at last, achieved in 1964? Will those all too ready to exploit the grievances of innocent whites in order to promote bigotry now be able to march under a respectable banner—equal opportunity for all? Will the fallout from Weber further polarize our work forces and our communities? Will it obstruct important job training across racial lines—the spontaneous on-the-job instruction of one worker by another? Will the backlash create further obstacles to legislative action necessary for programs designed to help all the disadvantaged, black and white? Will quota hiring result in significant inefficiencies, thereby retarding economic growth, to the particular disadvantage of minorities? Could a shift from individual to group “rights” be stabilized anywhere short of a transformation in the basic values of our society and in our political, legal, and economic institutions—short of a completely “quotified” society?
These illustrative questions are legislative and—in the best sense of the word—political. There is no indication that the Court even considered them. On the other hand, in answering the question presented by Weber without appropriate regard for Congress’s mandate, the Court risks its future capacity to meet a deeply felt need for trustworthy neutrals. Finally, when the justices stray into the political thicket, it is more likely that the Court will fail a classic test for a Supreme Court opinion, that it give reasoned explanations transcending the case being decided.
Weber fails that test. Although it affects almost the entire work force, it fails to provide coherent guidance to government officials and private lawyers who must give day-by-day advice and to judges who must deal with a flood of litigation. The Court, as we have seen, emphasized that it was deciding only the case before it. This ostensible strategy of postponement adds still another ironic twist to a decision preceded by arguments that something had to be done to alleviate the uncertainties resulting from discordant regulations.
The Reach of the Court’s Opinion
The narrowness of the opinion may, however, be more apparent than real. The distinctive elements of Weber that the Court stressed are in the main so unrelated to the opinion’s basic argument and basic purpose that if the Court persists in its fundamental position those elements are unlikely to have any importance. Moreover, those elements are in general so ill-defined by the Court that they provide no clear basis for a limiting rule.
First, Weber validated quotas only with respect to “traditionally segregated job categories”—in the private sector. Since the Court did not spell out those categories, there are many unanswered questions. Do jobs remain traditionally segregated and, if so, for how long after black representation has markedly increased? Does the Court’s emphasis mean that quotas may not be established for relatively new job categories, such as computer programmers, if such categories have not involved any identifiable exclusion in the past but presently involve a racial imbalance? Does “traditionally segregated” mean anything more than current racial imbalance? How are the job categories to be defined for these purposes? If, for example, the relevant rubric were “white collar jobs,” computer programmers might easily fit into areas of traditional segregation; and, contrariwise, if computer programmers were a separate category that had been free from segregation. Finally, is “traditional segregation” to be determined on a national, regional, or local basis?
Apart from the confusion inherent in the “traditionally segregated job category” test, the more important question is whether that test is compatible with the Court’s basic reasoning. If, as Weber indicates, Title VII permitted some voluntary quotas in order to avoid overregulation, it is difficult to see why their legality should depend on their being directed at “traditionally segregated categories.” From the standpoint of a black job applicant who has not been the direct victim of discrimination, it is not of primary importance whether there was job segregation in the past. Furthermore, whether a racial imbalance exists in a traditionally segregated occupation or in a new occupation free from prior discrimination would appear to be irrelevant to what the Court posits to be the overriding purpose of the statute—putting blacks into the economic mainstream. Indeed, measures directed at that purpose may be especially significant in areas where jobs are being created by new technologies. A similar point arises from the potential limitation of the Court’s approach to the private sector, since employment has recently been growing faster in the public sector than in the private. Conceivably that limitation might be explained on the grounds that racial quotas in the public sector would involve the government directly in racial discrimination and thus raise trouble-some constitutional questions. But the Court’s interpretation of Title VII as permitting “voluntary” preferences for some races attributes to the Congress the same kind of discrimination on grounds of race.
Another apparent potential limitation on the employer’s freedom to adopt “voluntary” preferences may be implicit in the Court’s repeated statements that the Kaiser quota had resulted from collective bargaining. It is, however, difficult to find any basis for giving legal significance to that fact. Furthermore, to do so would run counter to Alexander v. Gardner Denver (1974) where the Supreme Court observed that Title VII protected individual rights against collective bargaining and the power of the majority. Finally, collective bargaining covers less than 25 percent of the work force. If the Court’s approach is sound, it would be bizarre to confine it to such a small fraction of the economy.
The Court also noticed (1) that the Kaiser plan did not absolutely bar the admission of whites and (2) that the plan was a temporary one, operating only until blacks in craft jobs at Kaiser reflected the ratio of blacks in the local work force. Again, it is difficult to fit those factors into the Court’s basic argum |
