United Steelworkers of America v. Weber

Fifteen years after the Civil Rights Act of 1964 and seven years after the implementation of affirmative action programs by the federal government, United Steelworkers of America v. Weber was the first Supreme Court case to address the issue of affirmative action in employment. Thus by definition it set a precedent, and the Court's ruling--that affirmative action programs were not in violation of Title VII of the Civil Rights Act as long as private parties entered into such programs voluntarily--seemed to offer a satisfactory litmus test for the legality of affirmative action programs in the workplace. For a few years, Court rulings would follow the pattern set in Weber. Eventually, however, it would appear in hindsight that the case had ultimately raised as many questions as it had settled.

Congress passed the Civil Rights Act of 1964, together with the Voting Rights Act of 1965 and other key items of legislation, in an effort to redress severe and longstanding inequities between African Americans and whites in America. As their names suggested, these laws were concerned primarily with securing for all citizens--regardless of color--the basic rights guaranteed in the U.S. Constitution. But the historic civil rights legislation of the mid-1960s had a secondary purpose, an economic one that was embodied in a statement made by President John F. Kennedy when he first introduced the Civil Rights Act in 1963: "There is little value in a Negro's obtaining the right to be admitted to hotels and restaurants if he has no cash in his pocket and no job." In other words, elimination of "separate but equal" facilities such as "White" and "Colored" counters at eating establishments, or removal of the laws which forced African American people to ride in the back of a bus, were not enough in themselves. If the economic plight of African Americans remained such that they could not afford to eat at restaurants, or could not aspire to own their own cars (and thus were no longer forced to ride the bus, front seat or back), that meant that they had not yet begun to enjoy the same degree of economic freedom as whites.

Consequently, during Senate discussion of the Civil Rights Act in 1963, Senator Hubert Humphrey (D-MN) sounded a note very much like that of the president: "What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? . . . Without a job, one cannot afford public convenience and accommodations." Out of this concern arose the idea of eliminating discrimination in the workplace, for which Humphrey made the case:

No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination . . . [but t]here is reason to believe . . . that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.

Hence the language of subsection 703(a) of Title VII of the Civil Rights Act:

. . . It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual . . . because of such individual's race . . . or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of equal opportunities . . . because of such individual's race . . .

This was further reinforced in 703(d), which forbade employers, labor organizations, or any combination of the two controlling an apprenticeship or on-the-job training program to discriminate against any individual on the basis of race, color, religion, sex, or national origin.

In spite of its unambiguous language, however, within a short time it became apparent that Title VII was not enough to combat deeply ingrained patterns of discrimination in the workplace. This was the Supreme Court's attitude in Griggs v. Duke Power Company (1971), in which it found that a company practice could be discriminatory even if the company did not intend to perpetuate racial imbalance by that policy. For instance, if a company had an open position for a skilled electrician, and freely accepted applications from both African American and white candidates, but African Americans had historically been prohibited from obtaining instruction in the work performed by electricians, then discrimination would be perpetuated, whether or not company policy had been made with that intention in mind. For this reason, in 1972 the federal government, under President Richard Nixon, enacted Executive Order 11246, which mandated a nationwide policy of affirmative action. Under the guidelines of this program, employers were encouraged to develop a racially balanced workforce, with African Americans and other minorities represented in proportion to their numbers in the population as a whole.

The affirmative action plan challenged in Weber came into being two years after Executive Order 11246. In 1974, the United Steelworkers of America union (USWA) entered into a collective bargaining agreement with Kaiser Aluminum Chemical Corporation. The nationwide agreement covered some 15 Kaiser plants, and among its provisions was an affirmative action plan. According to the plan, the company would set aside 50 percent of all openings in its in-plant craft training (i.e., apprenticeship) programs, until the percentage of African American craft workers was equivalent to the percentage of African Americans in the local labor population. At Kaiser's Gramercy, Louisiana plant, only 1.83 percent of all skilled workers were African American, despite the fact that the local labor force was 39 percent African American; hence the company's goal was to have African Americans in approximately 39 percent of its skilled positions. Therefore, in the plant's first year of operation, the company selected seven black and six white trainees for its craft program. The most senior of the African Americans selected had less seniority than several whites--among them Brian Weber--who were rejected for the training program.

Weber instituted a class action suit in the U.S. District Court for the Eastern District of Louisiana. He charged that he and other white employees who were rejected in favor of African American applicants with less seniority had been discriminated against in violation of 703(a) and (d) of Title VII. The district court agreed, and the steelworkers union appealed the case. The Court of Appeals of the Fifth Circuit, in a divided ruling, affirmed the judgment of the lower court. The court held that race-based employment preferences--even those established for the purposes of redressing past imbalances--were discriminatory in violation of Title VII.