Sheet Metal Workers v. EEOCAnnotate this Case
478 U.S. 421 (1986)
U.S. Supreme Court
Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986)
Local 28 of the Sheet Metal Workers' International Association
v. Equal Employment Opportunity Commission
Argued February 25, 1986
Decided July 2, 1986
478 U.S. 421
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
In 1975, the District Court found petitioner union and petitioner apprenticeship committee of the union guilty of violating Title VII of the Civil Rights Act of 1964 by discriminating against nonwhite workers in recruitment, selection, training, and admission to the union. The court ordered petitioners to end their discriminatory practices, established a 29% nonwhite membership goal, based on the percentage of nonwhites in the relevant labor pool in New York City, to be achieved by July 1981, and also ordered petitioners to implement procedures designed to achieve this goal under the supervision of a court-appointed administrator. Thereafter, the administrator proposed and the court adopted an affirmative action program. The Court of Appeals affirmed, with modifications. On remand, the District Court adopted a revised affirmative action program, and extended the time to meet the 29% membership goal. The Court of Appeals again affirmed. In 1982 and again in 1983, the District Court found petitioners guilty of civil contempt for disobeying the court's earlier orders. The court imposed a fine to be placed in a special Employment, Training, Education, and Recruitment Fund (Fund), to be used to increase nonwhite membership in the union and its apprenticeship program. The District Court ultimately entered an amended affirmative action program establishing a 29.23% nonwhite membership goal to be met by August, 1987. The Court of Appeals affirmed the District Court's contempt findings (with one exception), the contempt remedies, including the Fund order, and the affirmative action program with modifications, holding that the 29.23% nonwhite membership goal was proper, and did not violate Title VII or the Constitution.
Held: The judgment is affirmed.
753 F.2d 1172, affirmed.
JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III, and VI, concluding that:
1. The District Court did not use incorrect statistical evidence in evaluating petitioners' membership practices. Pp. 478 U. S. 440-442.
2. The contempt fines and Fund order were proper remedies for civil contempt. These sanctions were clearly designed to coerce compliance with the District Court's order, rather than to punish petitioners for their contemptuous conduct, and thus were not criminal contempt citations. Pp. 478 U. S. 442-444.
3. The District Court properly appointed an administrator to supervise petitioners' compliance with the court's orders. In light of the difficulties inherent in monitoring such compliance, and especially petitioners' established record of resistance to prior state and federal court orders, appointment of an administrator was well within the District Court's discretion. While the administrator may interfere with petitioners' membership operations, such "interference" is necessary to put an end to petitioners' discriminatory ways. Pp. 478 U. S. 481-482.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded in Parts IV, V, and VII that:
1. Section 706(g) of Title VII does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief, such as the District Court ordered in this case, as a remedy for past discrimination. Pp. 478 U. S. 444-479.
(a) Section 706(g)'s language plainly expresses Congress' intent to vest district courts with broad discretion to award "appropriate" equitable relief to remedy unlawful discrimination. The last sentence of § 706(g), which prohibits a district court from ordering a union to admit an individual who was "refused admission . . . for any reason other than discrimination" does not say that a court may order relief only for actual victims of past discrimination. Rather, the provision addresses only the situation where the plaintiff demonstrates that a union has engaged in unlawful discrimination but the union can show that a particular individual would have been refused admission even in the absence of discrimination. In this case, neither the membership goal nor the Fund order required petitioners to admit to membership individuals who had been refused admission for reasons unrelated to discrimination. Pp. 478 U. S. 445-447.
(b) The availability of affirmative race-conscious relief under § 706 (g) as a remedy for violations of Title VII furthers the broad purposes underlying the statute. In some circumstances, such relief may be the only effective means available to ensure the full enjoyment of the rights protected by Title VII. Pp. 478 U. S. 447-451.
(c) The legislative history does not indicate that Congress intended that affirmative relief under § 706(g) benefit only the identified victims of past discrimination. Opponents of Title VII charged that employers and labor unions would be required to implement racial quotas or preferences to avoid liability under the statute. Supporters insisted that Title VII did not require "racial balancing." The debate in Congress concerning
what Title VII did and did not require culminated in the adoption of § 703(j), which expressly states that the statute does not require an employer or a union to adopt quotas or preferences simply because of racial imbalance. But Congress gave no intimation as to whether such measures would be acceptable as remedies for Title VII violations. An examination of the legislative policy behind Title VII discloses that Congress did not intend to prohibit a court from ordering affirmative action in appropriate circumstances as a remedy for past discrimination. This interpretation of the scope of a district court's remedial power under § 706(g) is confirmed by the contemporaneous interpretation of the Equal Employment Opportunity Commission and the Justice Department, the two agencies charged with enforcing Title VII, and is also confirmed by the legislative history of the Equal Employment Opportunity Act of 1972, which amended Title VII by, inter alia, modifying § 706(g) to empower district courts to order "any other equitable relief as the court deems appropriate." Pp. 478 U. S. 452-470.
(d) This Court's prior decisions, such as Teamsters v. United States,431 U. S. 324, Franks v. Bowman Transportation Co.,424 U. S. 747, and Albemarle Paper Co. v. Moody,422 U. S. 405, held only that a court may order relief designed to make individual victims of racial discrimination whole, and did not suggest that individual "make-whole" relief was the only kind of remedy available under the statute. On the contrary, these cases emphasized that a district court's remedial power should be exercised both to eradicate the effects of unlawful discrimination and to make the victims of past discrimination whole. Nor can Firefighters v. Stotts,467 U. S. 561, be properly read to prohibit a court from ordering any kind of affirmative race-conscious relief that might benefit nonvictims. Such a reading would distort § 706(g)'s language and would deprive the courts of an important means of enforcing Title VII's guarantee of equal employment opportunity. Pp. 478 U. S. 470-475.
(e) While § 706(g) does not foreclose a district court from instituting some sorts of racial preferences where necessary to remedy past discrimination, such relief is not always proper. The court should exercise its discretion with an eye toward Congress' concern that affirmative race-conscious measures not be invoked simply to create a racially balanced workforce. In this case, the relief ordered by the District Court was proper. Both that court and the Court of Appeals agreed that the membership goal and Fund order were necessary to remedy petitioners' pervasive and egregious discrimination. The District Court established the membership goal as a means by which it can measure petitioners' compliance with its orders, rather than as a strict racial quota. Moreover, both the membership goal and the Fund order are temporary
measures, and do not unnecessarily trammel the interests of white employees. Pp. 478 U. S. 475-479.
2. The District Court's orders do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. They were properly and narrowly tailored to further the Government's compelling interest in remedying past discrimination. Pp. 478 U. S. 479-481.
JUSTICE POWELL concluded that:
1. The District Court acted within the remedial authority granted by § 706(g) in establishing the Fund order and numerical goal at issue. Neither Title VII's plain language nor the legislative history supports a view that all remedies must be limited to benefiting actual victims of discrimination. In cases such as this, where there is a history of egregious violations of Title VII, an injunction alone may be insufficient to remedy the violations. Pp. 478 U. S. 483-484.
2. The Fund order and membership goal do not contravene the equal protection component of the Due Process Clause of the Fifth Amendment. The finding of the courts below that petitioners have committed egregious violations of Title VII clearly establishes a compelling governmental interest sufficient to justify the imposition of a racially classified remedy. Moreover, the District Court's remedy is narrowly tailored to the goal of eradicating petitioners' discrimination. The Fund order was carefully structured to vindicate the compelling governmental interests. As to the percentage goal, it is doubtful, given petitioners' history of discrimination, that any other effective remedy was available. The goal was not imposed as a permanent requirement, and was directly related to the percentage of nonwhites in the relevant workforce. Neither the Constitution nor Title VII requires a particular racial balance in the workplace, and, indeed, the Constitution forbids such a requirement if imposed for its own sake. Here, the flexible application of the goal requirement demonstrates that it is not a means to achieve racial balance. Moreover, it does not appear from the record that nonminorities will be burdened directly, if at all. Pp. 478 U. S. 484-489.
BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and VI, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts II-A, III, and VI of which O'CONNOR, J., joined, and an opinion with respect to Parts IV, V, and VII, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 478 U. S. 483. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, post, p. 478 U. S. 489. WHITE, J., filed a dissenting opinion, post, p. 478 U. S. 499. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 478 U. S. 500.
JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and VI, and an opinion with respect to Parts IV, V, and VII in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.
In 1975, petitioners were found guilty of engaging in a pattern and practice of discrimination against black and Hispanic individuals (nonwhites) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and ordered to end their discriminatory practices, and to admit a certain percentage of nonwhites to union membership by July, 1981. In 1982 and again in 1983, petitioners were found guilty of civil contempt for disobeying the District Court's earlier orders. They now challenge the District Court's contempt finding, and also the remedies the court ordered both for the Title VII violation and for contempt. Principally, the issue presented is whether the remedial provision of Title VII, see 42 U.S.C. § 2000e-5(g), empowers a district court to order race-conscious relief that may benefit individuals who are not identified victims of unlawful discrimination.
Petitioner Local 28 of the Sheet Metal Workers' International Association (Local 28) represents sheet metal workers
employed by contractors in the New York City metropolitan area. Petitioner Local 28 Joint Apprenticeship Committee (JAC) is a management-labor committee which operates a 4-year apprenticeship training program designed to teach sheet metal skills. Apprentices enrolled in the program receive training both from classes and from on-the-job work experience. Upon completing the program, apprentices become journeyman members of Local 28. Successful completion of the program is the principal means of attaining union membership. [Footnote 1]
In 1964, the New York State Commission for Human Rights determined that petitioners had excluded blacks from the union and the apprenticeship program in violation of state law. The State Commission found, among other things, that Local 28 had never had any black members or apprentices, and that "admission to apprenticeship is conducted largely on a nepot[is]tic basis involving sponsorship by incumbent union members," App. JA-407, creating an impenetrable barrier for nonwhite applicants. [Footnote 2] Petitioners were ordered to "cease and desist" their racially discriminatory practices. The New York State Supreme Court affirmed the State Commission's findings, and directed petitioners to implement objective standards for selecting apprentices. State Comm'n for Human Rights v. Farrell, 43 Misc.2d 958, 252 N.Y.S.2d 649 (1964).
When the court's orders proved ineffective, the State Commission commenced other state court proceedings in an effort to end petitioners' discriminatory practices. Petitioners had originally agreed to indenture two successive classes of apprentices using nondiscriminatory selection procedures, but stopped processing applications for the second apprentice class, thus requiring that the State Commission seek a court order requiring petitioners to indenture the apprentices. State Comm'n for Human Rights v. Farrell, 47 Misc.2d 244, 262 N.Y.S.2d 526, aff'd, 24 App.Div.2d 128, 264 N.Y.S.2d 489 (1st Dept.1965). The court subsequently denied the union's request to reduce the size of the second apprentice class, and chastised the union for refusing "except for token gestures, to further the integration process." State Comm'n for Human Rights v. Farrell, 47 Misc.2d 799, 800, 263 N.Y.S.2d 250, 252 (1965). Petitioners proceeded to disregard the results of the selection test for a third apprentice class on the ground that nonwhites had received "unfair tutoring," and had passed in unreasonably high numbers. The state court ordered petitioners to indenture the apprentices based on the examination results. State Comm'n for Human Rights v. Farrell, 52 Misc.2d 936, 277 N.Y.S.2d 287 aff'd, 27 App.Div.2d 327, 278 N.Y.S.2d 982 (1st Dept.), aff'd, 19 N.Y.2d 974, 228 N.E.2d 691 (1967).
In 1971, the United States initiated this action under Title VII and Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.) to enjoin petitioners from engaging in a pattern and practice of discrimination against black and Hispanic individuals (nonwhites). [Footnote 3] The New York City Commission on Human Rights (City) intervened as plaintiff to press claims
that petitioners had violated municipal fair employment laws, and had frustrated the City's efforts to increase job opportunities for minorities in the construction industry. United States v. Local 638, Enterprise Assn. of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning, and General Pipefitters, 347 F.Supp. 164 (SDNY 1972). In 1970, the City had adopted a plan requiring contractors on its projects to employ one minority trainee for every four journeyman union members. Local 28 was the only construction local which refused to comply voluntarily with the plan. In early 1974, the City attempted to assign six minority trainees to sheet metal contractors working on municipal construction projects. After Local 28 members stopped work on the projects, the District Court directed the JAC to admit the six trainees into the apprenticeship program, and enjoined Local 28 from causing any work stoppage at the affected job sites. The parties subsequently agreed to a consent order that required the JAC to admit up to 40 minorities into the apprenticeship program by September, 1974. The JAC stalled compliance with the consent order, and only completed the indenture process under threat of contempt.
Following a trial in 1975, the District Court concluded that petitioners had violated both Title VII and New York law by discriminating against nonwhite workers in recruitment, selection, training, and admission to the union. EEOC v. Local 638, 401 F.Supp. 467 (SDNY 1975). Noting that, as of July 1, 1974, only 3.19% of the union's total membership, including apprentices and journeymen, was nonwhite, the court found that petitioners had denied qualified nonwhites access to union membership through a variety of discriminatory practices. First, the court found that petitioners had adopted discriminatory procedures and standards for admission into the apprenticeship program. The court examined some of the factors used to select apprentices, including the entrance examination and high-school diploma requirement,
and determined that these criteria had an adverse discriminatory impact on nonwhites, and were not related to job performance. The court also observed that petitioners had used union funds to subsidize special training sessions for friends and relatives of union members taking the apprenticeship examination. [Footnote 4]
Second, the court determined that Local 28 had restricted the size of its membership in order to deny access to nonwhites. The court found that Local 28 had refused to administer yearly journeyman examinations despite a growing demand for members' services. [Footnote 5] Rather, to meet this increase in demand, Local 28 recalled pensioners who obtained doctors' certificates that they were able to work, and issued hundreds of temporary work permits to nonmembers; only one of these permits was issued to a nonwhite. Moreover, the court found that, "despite the fact that Local 28 saw fit to request [temporary workers] from sister locals all across the country, as well as from allied New York construction unions such as plumbers, carpenters, and iron workers, it never once sought them from Sheet Metal Local 400," a New York City union comprised almost entirely of nonwhites. Id. at 485. The court concluded that, by using the temporary permit system rather than continuing to administer journeyman
tests, Local 28 successfully restricted the size of its membership with the "illegal effect, if not the intention, of denying nonwhites access to employment opportunities in the industry." Ibid.
Third, the District Court determined that Local 28 had selectively organized nonunion sheet metal shops with few, if any, minority employees, and admitted to membership only white employees from those shops. The court found that, "[p]rior to 1973, no non-white ever became a member of Local 28 through the organization of a nonunion shop." Ibid. The court also found that, despite insistent pressure from both the International Union and local contractors, Local 28 had stubbornly refused to organize sheet metal workers in the local blowpipe industry because a large percentage of such workers were nonwhite.
Finally, the court found that Local 28 had discriminated in favor of white applicants seeking to transfer from sister locals. The court noted that, from 1967 through 1972, Local 28 had accepted 57 transfers from sister locals, all of them white, and that it was only after this litigation had commenced that Local 28 accepted its first nonwhite transfers, two journeymen from Local 400. The court also found that, on one occasion, the union's president had incorrectly told nonwhite Local 400 members that they were not eligible for transfer.
The District Court entered an order and judgment (O & J) enjoining petitioners from discriminating against nonwhites and enjoining the specific practices the court had found to be discriminatory. Recognizing that
"the record in both state and federal court against these defendants is replete with instances of . . . bad faith attempts to prevent or delay affirmative action,"
id. at 488, [Footnote 6] the court concluded that
imposition of a remedial racial goal in conjunction with an admission preference in favor of nonwhites is essential to place the defendants in a position of compliance with [Title VII]."
Ibid. The court established a 29% nonwhite membership goal, based on the percentage of nonwhites in the relevant labor pool in New York City, for the union to achieve by July 1, 1981. The parties were ordered to devise and to implement recruitment and admission procedures designed to achieve this goal under the supervision of a court-appointed administrator. [Footnote 7]
The administrator proposed, and the court adopted, an Affirmative Action Program which, among other things, required petitioners to offer annual, nondiscriminatory journeyman and apprentice examinations, select members according to a white-nonwhite ratio to be negotiated by the parties, conduct extensive recruitment and publicity campaigns aimed at minorities, [Footnote 8] secure the administrator's consent before issuing temporary work permits, and maintain
detailed membership records, including separate records for whites and nonwhites. EEOC v. Local 638, 421 F.Supp. 603 (1975). Local 28 was permitted to extend any of the benefits of the program to whites and other minorities, provided that this did not interfere with the programs' operation.
The Court of Appeals for the Second Circuit affirmed the District Court's determination of liability, finding that petitioners had "consistently and egregiously violated Title VII." EEOC v. Local 638, 532 F.2d 821, 825 (1976). The court upheld the 29% nonwhite membership goal as a temporary remedy, justified by a "long and persistent pattern of discrimination," id. at 830, and concluded that the appointment of an administrator with broad powers was clearly appropriate, given petitioners' refusal to change their membership practices in the face of prior state and federal court orders. However, the court modified the District Court's order to permit the use of a white-nonwhite ratio for the apprenticeship program only pending implementation of valid, job-related entrance tests. Local 28 did not seek certiorari in this Court to review the Court of Appeals' judgment.
On remand, the District Court adopted a Revised Affirmative Action Program and Order (RAAPO) to incorporate the Court of Appeals' mandate. RAAPO also modified the original Affirmative Action Program to accommodate petitioners' claim that economic problems facing the construction industry had made it difficult for them to comply with the court's orders. Petitioners were given an additional year to meet the 29% membership goal. RAAPO also established interim membership goals designed to
"afford the parties and the Administrator with some device to measure progress so that, if warranted, other provisions of the program could be modified to reflect change [sic] circumstances."
App. JA-168. The JAC was directed to indenture at least 36 apprentices by February, 1977, and to determine the size of future apprenticeship apprenticeship
classes subject to review by the administrator. [Footnote 9] A divided panel of the Court of Appeals affirmed RAAPO in its entirety, including the 29% nonwhite membership goal. EEOC v. Local 638, 565 F.2d 31 (1977). Petitioners again chose not seek certiorari from this Court to review the Court of Appeals' judgment.
In April, 1982, the City and State moved in the District Court for an order holding petitioners in contempt. [Footnote 10] They alleged that petitioners had not achieved RAAPO's 29% nonwhite membership goal, and that this failure was due to petitioners' numerous violations of the O&J, RAAPO, and orders of the administrator. The District Court, after receiving detailed evidence of how the O&J and RAAPO had operated over the previous six years, held petitioners in civil contempt. The court did not rest its contempt finding on petitioners' failure to meet the 29% membership goal, although nonwhite membership in Local 28 was only 10.8% at the time of the hearing. Instead, the court found that petitioners had "failed to comply with RAAPO . . . almost from its date of entry," App. to Pet. for Cert. A-156, identifying six
"separate actions or omissions on the part of the defendants [that] have impeded the entry of nonwhites into Local 28 in contravention of the prior orders of this court."
Id. at A -150. Specifically, the court determined that petitioners had (1) adopted a policy of underutilizing the apprenticeship program in order to limit nonwhite membership and employment
opportunities; [Footnote 11] (2) refused to conduct the general publicity campaign required by the O &J and RAAPO to inform nonwhites of membership opportunities; (3) added a job protection provision to the union's collective bargaining agreement that favored older workers and discriminated against nonwhites (older workers provision); (4) issued unauthorized work permits to white workers from sister locals; and (5) failed to maintain and submit records and reports required by RAAPO, the O & J, and the administrator, thus making it difficult to monitor petitioners' compliance with the court's orders.
To remedy petitioners' contempt, the court imposed a $150,000 fine, to be placed in a fund designed to increase nonwhite membership in the apprenticeship program and the union. The administrator was directed to propose a plan for utilizing the fund. The court deferred imposition of further coercive fines pending receipt of the administrator's recommendations for modifications to RAAP0. [Footnote 12]
In 1983, the City brought a second contempt proceeding before the administrator, charging petitioners with additional violations of the O&J, RAAPO, and various administrative
orders. The administrator found that the JAC had violated RAAPO by failing to submit accurate reports of hours worked by apprentices, thus preventing the court from evaluating whether nonwhite apprentices had shared in available employment opportunities, and that Local 28 had: (1) failed, in a timely manner, to provide the racial and ethnic data required by the O &J and RAAPO with respect to new members entering the union as a result of its merger with five predominantly white sheet metal locals, (2) failed to serve copies of the O &J and RAAPO on contractors employing Local 28 members, as ordered by the administrator, and (3) submitted inaccurate racial membership records. [Footnote 13]
The District Court adopted the administrator's findings, and once again adjudicated petitioners guilty of civil contempt. The court ordered petitioners to pay for a computerized recordkeeping system to be maintained by outside consultants, but deferred ruling on additional contempt fines pending submission of the administrator's fund proposal. The court subsequently adopted the administrator's proposed Employment, Training, Education, and Recruitment Fund (Fund) to "be used for the purpose of remedying discrimination." App. to Pet. for Cert. A-113--A 114. The Fund was used for a variety of purposes. In order to increase the pool of qualified nonwhite applicants for the apprenticeship
program, the Fund paid for nonwhite union members to serve as liaisons to vocational and technical schools with sheet metal programs, created part-time and summer sheet metal jobs for qualified nonwhite youths, and extended financial assistance to needy apprentices. The Fund also extended counseling and tutorial services to nonwhite apprentices, giving them the benefits that had traditionally been available to white apprentices from family and friends. Finally, in an effort to maximize employment opportunities for all apprentices, the Fund provided financial support to employers otherwise unable to hire a sufficient number of apprentices, as well as matching funds to attract additional funding for job training programs. [Footnote 14]
The District Court also entered an Amended Affirmative Action Plan and Order (AAAPO) which modified RAAPO in several respects. AAAPO established a 29.23% minority membership goal to be met by August 31, 1987. The new goal was based on the labor pool in the area covered by the newly expanded union. The court abolished the apprenticeship examination, concluding that "the violations that have occurred in the past have been so egregious that a new approach must be taken to solve the apprentice selection problem." Id. at A-112. Apprentices were to be selected by a three-member Board, which would select one minority apprentice for each white apprentice indentured. Finally, to prevent petitioners from underutilizing the apprenticeship program, the JAC was required to assign to Local 28 contractors one apprentice for every four journeymen, unless the contractor obtained a written waiver from respondents.
Petitioners appealed the District Court's contempt orders, the Fund order, and the order adopting AAAPO. [Footnote 15] A divided panel of the Court of Appeals affirmed the District Court's contempt findings, [Footnote 16] except the finding based on adoption of the older workers' provision. [Footnote 17] EEOC v. Local 658, 753 F.2d 1172 (1985). The court concluded that,
"[p]articularly in light of the determined resistance by Local 28 to all efforts to integrate its membership, . . . the combination of violations found by [the District Court] amply demonstrates the union's foot-dragging egregious noncompliance . . . and adequately supports [its] findings of civil contempt against both Local 28 and the JAC."
Id. at 1183. The
court also affirmed the District Court's contempt remedies, including the Fund order, and affirmed AAAPO with two modifications: it set aside the requirement that one minority apprentice be indentured for every white apprentice, [Footnote 18] and clarified the District Court's orders to allow petitioners to implement objective, nondiscriminatory apprentice selection procedures. [Footnote 19] The court found the 29.23% nonwhite membership goal to be proper in light of Local 28's "long continued and egregious racial discrimination," id. at 1186, and because it "will not unnecessarily trammel the rights of any readily ascertainable group of nonminority individuals. " Id. at 1187. The court rejected petitioners' argument that the goal violated Title VII or the Constitution. The court also distinguished AAAPO from the race-conscious order invalidated by this Court in Firefighters v. Stotts,467 U. S. 561 (1984), on three grounds: (1) unlike the order in Stotts, AAAPO did not conflict with a bona fide seniority plan; (2) the Stotts discussion of § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), applied only to "make whole" relief, and did not address the prospective relief contained in AAAPO and the Fund order; and (3) this case, unlike Stotts, involved intentional discrimination.
Local 28 and the JAC filed a petition for a writ of certiorari. They present several claims for review: (1) that the District Court relied on incorrect statistical data; (2) that the
contempt remedies ordered by the District Court were criminal in nature, and were imposed without due process; (3) that the appointment of an administrator to supervise membership practices interferes with their right to self-governance; and (4) that the membership goal and Fund are unconstitutional. Principally, however, petitioners, supported by the Solicitor General, maintain that the membership goal and Fund exceed the scope of remedies available under Title VII, because they extend race-conscious preferences to individuals who are not the identified victims of petitioners' unlawful discrimination. We granted the petition, 474 U.S. 815 (1985), and now affirm the Court of Appeals.
Petitioners argue that the District Court relied on incorrect statistical evidence in violation of Title VII and of petitioners' right to due process.
Under the O &J and RAAPO, petitioners were directed to attain a 29% nonwhite membership goal by July, 1981. This goal was based on the percentage of minorities in the relevant labor pool within New York City. Petitioners argue that, because members and applicants for Local 28 membership have always been drawn from areas outside of New York City, the nonwhite membership goal should have accounted for the percentage of minorities in the relevant labor pool in these areas. Although they concede that there is no evidence in the record from which the correct percentage could be derived, they insist that the District Court's figure is erroneous, and that this error was "significant." [Footnote 20]
The 29% nonwhite membership goal was established more than a decade ago, and was twice affirmed by the Court of Appeals. Petitioners did not seek certiorari from this Court to review either of the Court of Appeals' judgments. Consequently, we do not have before us any issue as to the correctness of the 29% figure. See Pasadena City Bd. of Education v. Spangler,427 U. S. 424, 427 U. S. 432 (1976). Under AAAPO, petitioners are now obligated to attain a 29.23% nonwhite membership goal by August, 1987. AAAPO adjusted the original 29% membership goal to account for the fact that Local 28's members were now drawn from areas outside of New York City. Thus, even assuming that the original 29% membership goal was erroneous, it would not affect petitioners' existing obligations under AAAPO, or any other issue now before us. [Footnote 21]
Petitioners argue that the District Court also relied on incorrect data in finding that they had underutilized the apprenticeship program. The Court of Appeals recognized this error, seen 20, supra, but affirmed the finding based on
other evidence presented to the District Court. [Footnote 22] Petitioners do not explain whether, and if so, why, the Court of Appeals' evaluation of the evidence was incorrect. Based on our own review of the record, we cannot say that the District Court's resolution of the evidence presented on this issue was clearly erroneous. Cf. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla.,468 U. S. 85, 468 U. S. 98, n. 15 (1984); Rogers v. Lodge,458 U. S. 613, 458 U. S. 623 (1982). Moreover, because petitioners do not challenge three of the findings on which the first contempt order was based, any alleged use of incorrect statistical evidence by the District Court provides no basis for disturbing the contempt citation. As the Court of Appeals observed, petitioners' "failure to have the apprentices employed is both an independent ground for contempt and a symptom of the effects of defendants' other kinds of contemptuous conduct." 753 F.2d at 1183.
The District Court imposed a variety of contempt sanctions in this case, including fines to finance the Fund, a computerized recordkeeping requirement, and attorney's fees and expenses. Petitioners claim that these sanctions, while ostensibly imposed for civil contempt, are in fact punitive, and were issued without the procedures required for criminal contempt proceedings, see Fed.Rule Crim.Proc. 42(b); 42 U.S.C. § 2000h. We reject this contention.
Criminal contempt sanctions are punitive in nature, and are imposed to vindicate the authority of the court. United States v. Mine Workers,330 U. S. 258, 330 U. S. 302 (1947). On the other hand, sanctions in civil contempt proceedings may be employed "for either or both of two purposes: to coerce the defendant into compliance with the court's order and to compensate the complainant for losses sustained." Id. at 330 U. S. 303-304; see also McComb v. Jacksonville Paper Co.,336 U. S. 187, 336 U. S. 191 (1949); Penfield Co. of California v. SEC,330 U. S. 585, 330 U. S. 590 (1947); Nye v. United States,313 U. S. 33, 313 U. S. 42 (1941); McCrone v. United States,307 U. S. 61, 307 U. S. 64 (1939); 42 U.S.C. § 2000h. Under this standard, the sanctions issued by the District Court were clearly civil in nature.
The District Court determined that petitioners had underutilized the apprenticeship program to the detriment of nonwhites, and that this was one of the factors that had prevented petitioners even from approaching the court-ordered 29% nonwhite membership goal. The Fund -- and the fines used to finance it -- sought to remedy petitioners' contemptuous conduct by increasing nonwhite membership in the apprenticeship program in a variety of ways. In an attempt to encourage nonwhite interest in the apprenticeship program, petitioners were required to finance recruiting efforts at vocational schools and to create summer and part-time sheet metal jobs for qualified vocational students. Nonwhite apprentices were provided with tutorial, counseling, and financial support services. In an effort to stimulate employment opportunities for all apprentices, the Fund helped subsidize contractors who could not afford to hire one apprentice for every four journeymen, and helped the union secure matching training funds. The court carefully considered
"the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired,"
Mine Workers, supra, at 330 U. S. 304, and concluded that the Fund was necessary to secure petitioners' compliance with its earlier orders.
Under the terms of the Fund order, petitioners could purge themselves of the contempt by ending their discriminatory practices and by achieving the court-ordered membership goal; they would then be entitled, with the court's approval, to recover any moneys remaining in the Fund. Thus, the sanctions levied by the District Court were clearly designed to coerce compliance with the court's orders, rather than to punish petitioners for their contemptuous conduct. [Footnote 23]
Petitioners, joined by the EEOC, argue that the membership goal, the Fund order, and other orders which require petitioners to grant membership preferences to nonwhites are expressly prohibited by § 706(g), 42 U.S.C. § 2000e5(g), which defines the remedies available under Title VII. Petitioners and the EEOC maintain that § 706(g) authorizes a district court to award preferential relief only to the actual victims of unlawful discrimination. [Footnote 24] They maintain that the
membership goal and the Fund violate this provision, since they require petitioners to admit to membership, and otherwise to extend benefits to, black and Hispanic individuals who are not the identified victims of unlawful discrimination. [Footnote 25] We reject this argument, and hold that § 706(g) does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.
Section 706(g) states:
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful
employment practice . . . the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate. . . . No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination of account of race, color, religion, sex, or national origin in violation of . . . this title."
78 Stat. 261, as amended and as set forth in 42 U.S.C. § 2000e-5(g). The language of § 706(g) plainly expresses Congress' intent to vest district courts with broad discretion to award "appropriate" equitable relief to remedy unlawful discrimination. Teamsters v. United States,431 U. S. 324, 431 U. S. 364 (1977); Franks v. Bowman Transportation Co.,424 U. S. 747, 424 U. S. 771 (1976); Albemarle Paper Co. v. Moody,422 U. S. 405, 422 U. S. 421 (1975). [Footnote 26] Nevertheless, petitioners and the EEOC argue
that the last sentence of § 706(g) prohibits a court from ordering an employer or labor union to take affirmative steps to eliminate discrimination which might incidentally benefit individuals who are not the actual victims of discrimination. This reading twists the plain language of the statute.
The last sentence of § 706(g) prohibits a court from ordering a union to admit an individual who was "refused admission . . . for any reason other than discrimination." It does not, as petitioners and the EEOC suggest, say that a court may order relief only for the actual victims of past discrimination. The sentence on its face addresses only the situation where a plaintiff demonstrates that a union (or an employer) has engaged in unlawful discrimination, but the union can show that a particular individual would have been refused admission even in the absence of discrimination, for example, because that individual was unqualified. In these circumstances, § 706(g) confirms that a court could not order the union to admit the unqualified individual. Patterson v. Greenwood School District 50, 696 F.2d 293, 295 (CA4 1982); EEOC v. American Tel. & Tel. Co., 556 F.2d 167, 174-177 (CA3 1977), cert. denied, 438 U.S. 915 (1978); Day v. Mathews, 174 U.S.App.D.C. 231, 233, 530 F.2d 1083, 1085 (1976); King v. Laborers' International Union, Local No 818, 443 F.2d 273, 278-279 (CA6 1971). In this case, neither the membership goal nor the Fund order required petitioners to admit to membership individuals who had been refused admission for reasons unrelated to discrimination. Thus, we do not read § 706(g) to prohibit a court from ordering the kind of affirmative relief the District Court awarded in this case.
The availability of race-conscious affirmative relief under § 706(g) as a remedy for a violation of Title VII also furthers the broad purposes underlying the statute. Congress enacted Title VII based on its determination that racial minorities were subject to pervasive and systematic discrimination in employment.
"[I]t was clear to Congress that '[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,' . . . and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed."
"to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."
Griggs v. Duke Power Co.,401 U. S. 424, 401 U. S. 429-430 (1971); see Teamsters, supra, at 431 U. S. 364-365; Franks, supra, at 424 U. S. 763, 424 U. S. 771; Albemarle Paper, supra, at 422 U. S. 417-418. In order to foster equal employment opportunities, Congress gave the lower courts broad power under § 706(g) to fashion "the most complete relief possible" to remedy past discrimination. Franks, supra, at 424 U. S. 770; Albemarle Paper, supra, at 422 U. S. 418.
In most cases, the court need only order the employer or union to cease engaging in discriminatory practices and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce Title VII. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII's prohibition against discrimination will often prove useless, and will only result in endless enforcement litigation. In such cases, requiring recalcitrant
employers or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce may be the only effective way to ensure the full enjoyment of the rights protected by Title VII. See e.g., Thompson v. Sawyer, 219 U.S.App.D.C. 393, 430, 678 F.2d 257, 294 (1982); Chisholm v. United States Postal Service, 665 F.2d 482, 499 (CA4 1981); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 943-945 (CA10 1979); United States v. City of Chicago, 549 F.2d 415, 437 (CA7), cert. denied, 434 U.S. 875 (1977), modified, 663 F.2d 1354, 1362 (1981) (en banc); Rios v. Enterprise Assn. Steamfitters Local 638, 501 F.2d 622, 631-632 (CA2 1974); NAACP v. Allen, 340 F.Supp. 703 (MD Ala.1972), aff'd and remanded, 493 F.2d 614 (CA5), on remand sub nom. NAACP v. Dothard, 373 F.Supp. 504, 506-507 (MD Ala.1974) (Johnson, J.); see also Edwards &
Zaretsky, Preferential Remedies for Employment Discrimination, 74 Mich.L.Rev. 1, 9 (1976) ("[A] number of courts have held that some form of preferential remedy is the most effective means of enforcing equal employment opportunity when the facts show a long history of discrimination against a protected class").
Further, even where the employer or union formally ceases to engage in discrimination, informal mechanisms may obstruct equal employment opportunities. An employer's reputation for discrimination may discourage minorities from seeking available employment. See Morrow v. Crisler, 491 F.2d 1053, 1056 (CA5) (en banc), cert. denied, 419 U.S. 895 (1974); Carter v. Gallagher, 452 F.2d 315, 331 (CA8 1971), cert. denied, 406 U.S. 950 (1972); Spiegelman, Court-Ordered Hiring Quotas after Stotts: A Narrative on the Role of the Moralities of the Web and the Ladder in Employment Discrimination Doctrine, 20 Harv.Civ.Rights-Civ.Lib.L.Rev. 339, 388 (1985); see also Taylor v. Jones, 653 F.2d 1193, 1203 (CA8 1981) ("[I]n cases where a discriminatory atmosphere has been shown, the more common forms of relief . . . may not be appropriate or adequate"); Edwards & Zaretsky, supra, at 6. In these circumstances, affirmative race-conscious relief may be the only means available
"to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens."
"promptly operates to change the outward and visible signs of yesterday's racial distinctions and, thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices."
NAACP v. Allen, 493 F.2d at 621.
Finally, a district court may find it necessary to order interim hiring or promotional goals pending the development of nondiscriminatory hiring or promotion procedures. In these cases, the use of numerical goals provides a compromise between two unacceptable alternatives: an outright ban on
hiring or promotions, or continued use of a discriminatory selection procedure.
We have previously suggested that courts may utilize certain kinds of racial preferences to remedy past discrimination under Title VII. See Fullilove v. Klutznick,448 U. S. 448, 448 U. S. 483 (1980) (opinion of BURGER, C.J.) ("Where federal antidiscrimination laws have been violated, an equitable remedy may in the appropriate case include a racial or ethnic factor"); id. at 483 U. S. 513 (POWELL, J., concurring) ("The Courts of Appeals have approved temporary hiring remedies insuring that the percentage of minority group workers in a business or governmental agency will be reasonably related to the percentage of minority group members in the relevant population"); University of California Regents v. Bakke,438 U. S. 265, 438 U. S. 353 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) ("[T]he Court has required that preferences be given by employers to members of racial minorities as a remedy for past violations of Title VII"). The Courts of Appeals have unanimously agreed that racial preferences may be used, in appropriate cases, to remedy past discrimination under Title VII. [Footnote 28]
Despite the fact that the plain language of § 706(g) and the purposes of Title VII suggest the opposite, petitioners and the EEOC maintain that the legislative history indicates that Congress intended that affirmative relief under § 706(g) benefit only the identified victims of past discrimination. To support this contention, petitioners and the EEOC rely principally on statements made throughout the House and Senate debates to the effect that Title VII would not require employers or labor unions to adopt quotas or preferences that would benefit racial minorities.
Our examination of the legislative history of Title VII convinces us that, when examined in context, the statements relied upon by petitioners and the EEOC do not indicate that Congress intended to limit relief under § 706(g) to that which benefits only the actual victims of unlawful discrimination. Rather, these statements were intended largely to reassure opponents of the bill that it would not require employers or labor unions to use racial quotas or to grant preferential treatment to racial minorities in order to avoid being charged with unlawful discrimination. See Weber, 443 U.S. at 433 U. S. 205. The bill's supporters insisted that this would not be the intent and effect of the legislation, and eventually agreed to state this expressly in § 703(j), 42 U.S.C. § 2000e-2(j). Contrary to the arguments made by petitioners and the EEOC, these statements do not suggest that a court may not order preferential relief under § 706(g) when appropriate to remedy past discrimination. Rather, it is clear that the bill's supporters only wished to emphasize that an employer would not violate the statute merely by having a racially imbalanced workforce, and, consequently, that a court could not order an employer to adopt racial preferences merely to correct such an imbalance.
H.R. 7152, the bill that ultimately became the Civil Rights Act of 1964, was introduced in the House by Representatives on June 20, 1963, and referred to the Committee on the Judiciary. The bill contained no provisions addressed to discrimination in employment, but the Judiciary Committee amended it by adding Title VII. H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, pp. 26-32 (1963). Title VII, as reported by the Judiciary Committee, included a version of § 706(g), which read, in relevant part:
"No order of the court shall require the admission or reinstatement of an individual as a member of a union . . . if such individual was refused admission, suspended, or expelled . . . for cause."
H.R.Rep. No. 914, supra, at 12 (emphasis added). The word "cause"
was deleted from the bill on the House floor and replaced by the language "any reason other than discrimination on account of race, color, religion, or national origin." 110 Cong.Rec. 2567-2571 (1964). Representative Celler, the Chairman of the House Judiciary Committee and the sponsor of this amendment, explained:
"[T]he purpose of the amendment is to specify cause. Here the court, for example, cannot find any violation of the act which is based on facts other -- and I emphasize 'other' -- than discrimination on the grounds of race, color, religion, or national origin. The discharge might be based, for example, on incompetence or a morals charge or theft, but the court can only consider charges based on race, color, religion, or national origin. That is the purpose of this amendment."
Id. at 2567. See also id. at 2570 (remarks of Rep. Gill) ("[W]e would not interfere with discharges for ineptness, or drunkeness [sic].")
Even before the Judiciary Committee's bill reached the House floor, opponents charged that Title VII would require that an employer maintain a racially balanced workforce. The Minority Report of the Judiciary Committee observed that "the word discrimination is nowhere defined in the bill," and charged that "the administration intends to rely upon its own construction of discrimination' as including the lack of racial balance." H.R.Rep. No. 914, at 68, 73. [Footnote 29] To
demonstrate how the bill would operate in practice, the Report posited a number of hypothetical employment situations, concluding each time that Title VII would compel employers "to `racially balance' those who work for him in every job classification or be in violation of Federal law." Id. at 69 (emphasis in original). [Footnote 30] In response, Republican proponents of the bill issued a statement emphasizing that the EEOC could not enforce the statute merely to achieve racial balance:
"[T]he Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty. In this regard, nothing in the title permits a person to demand employment. Of greater importance, the Commission will only jeopardize its continued existence if it seeks to impose forced racial balance upon employers or labor unions."
Id. pt. 2, p. 29.
When H.R. 7152 actually reached the House floor, Representative Celler attempted to respond to charges that the existence of racial imbalance would constitute "discrimination" under Title VII, or that the EEOC would be authorized to "order the hiring and promotion only of employees of certain races or religious groups." 110 Cong.Rec. 1518 (1964). [Footnote 31] Nevertheless, accusations similar to those made in the Judiciary Committee's Minority Report were repeatedly raised on the House floor. For example, Representative Alger charged that Title VII would "demand by law, special privileges for Negroes:"
"The Negro represents about 10 percent of the population of the United States, and it cannot be said he is being kept from opportunity if he is represented in 10 percent of the working force. Now we are asked to ignore population ratios and force the hiring of Negroes even when it will mean, as in Government, that they are given preferential hiring far beyond the 10 percent of the population they represent."
Id. at 1645. Representative Abernathy raised the scenario of a
"union [having] to send out a 'racially' balanced staff of organizers to sign up a crew of 'racially balanced' carpenters, a crew of 'racially balanced' laborers, 'racially balanced' plumbers, electricians, plasterers, roofers, and so forth, before a construction job could begin."
Id. at 1620; see also id. at 1633, 2557 (remarks of Rep. Dowdy); id. at 2558 (remarks of Rep. Ashmore); id. at 2571 (remarks of Rep. Gathings). Supporters of the bill stridently denied any intent to require "racial balancing." [Footnote 32]
Thus, in response to charges that an employer or labor union would be guilty of "discrimination" under Title VII simply because of a racial imbalance in its workforce or membership roster, supporters of the bill insisted repeatedly that Title VII would not require employers or unions to implement hiring or promotional quotas in order to achieve racial balance. The question whether there should be any comparable restrictions with respect to a court's use of racial preferences as an appropriate remedy for past discrimination under § 706(g) simply did not arise during the House debates.
After passing the House by a vote of 290 to 130, the bill ran into equally strong opposition in the Senate. Opponents initially sought to have it sent to the Senate Judiciary Committee, which was hostile to civil rights legislation. The debate on this motion focused on the merits of the bill; many Senators again raised the specter of "racial balancing." Senator Ervin charged that, under the substantive provisions of Title VII,
"the Commission could . . . tell an employer that he had too few employees . . . and enter an order . . . requiring him to hire more persons, not because the employer thought he needed more persons, but because the Commission wanted to
compel him to employ persons of a particular race."
110 Cong.Rec. at 4764. Similarly, Senator Robertson stated:
"This title suggests that hiring should be done on some percentage basis in order that racial imbalance will be overcome. It is contemplated by this title that the percentage of colored and white population in a community shall be in similar percentages in every business establishment that employs over 25 persons. Thus, if there were 10,000 colored persons in a city and 15,000 whites, an employer with 25 employees would, in order to overcome racial imbalance, be required to have 10 colored personnel and 15 white. And, if by chance that employer had 20 colored employees, he would have to fire 10 of them in order to rectify the situation."
Id. at 5092.
Senator Humphrey, one of the most vocal proponents of H.R. 7152, rose to the bill's defense. He introduced a newspaper article quoting the answers of a Justice Department expert to common objections to Title VII. In response to the "objection" that "[w]hite people would be fired, to make room for Negroes," the article stated that "[t]he bill would not authorize anyone to order hiring or firing to achieve racial or religious balance." Id. at 5094. Later, responding to a political advertisement suggesting that federal agencies would interpret "discrimination" under Title VII as synonymous with racial imbalance, Senator Humphrey stressed that Title VII
"does [not] in any way authorize the Federal Government to prescribe, as the advertisement charges, a 'racial balance' of job classifications or office staffs or 'preferential treatment of minorities'"
to achieve such a balance. Id. at 5423. After 17 days of debate, the Senate voted to take up the bill directly without referring it to a committee. Id. at 6417.
Senators Humphrey and Kuchel, who served as bipartisan floor managers for H.R. 7152, opened formal debate on the merits of the bill and addressed opponents' charges that Title
VII would require employers to implement quotas to achieve a certain racial balance. Senator Humphrey stressed that,
"[c]ontrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial 'quota' or to achieve a certain racial balance."
Id. at 6549. Senator Kuchel elaborated:
"[Title VII] is pictured by its opponents and detractors as an intrusion of numerous Federal inspectors into our economic life. These inspectors would presumably dictate to labor unions and their members with regard to . . . racial balance in job classifications, racial balance in membership, and preferential advancement for members of so-called minority groups. Nothing could be further from the truth. . . . [T]he important point . . . is that the court cannot order preferential hiring or promotion consideration for any particular race, religion, or other group."
Id. at 6563.
These sentiments were echoed by Senators Case and Clark, who spoke as bipartisan team "captains" in support of Title VII. The Senators submitted an interpretative memorandum which explained that "[t]here is no requirement in title VII that an employer maintain a racial balance in his workforce." Id. at 7213. Senator Clark also introduced a Justice Department memorandum which repeated what supporters of the bill had tried to make clear:
"There is no provision, either in title VII or in any other part of this bill, that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. No employer is required to hire an individual because that individual is a Negro. No employer is required to maintain any ratio of Negroes
to whites, Jews to gentiles, Italians to English, or women to men."
Id. at 7207.
Opponents of the bill invoked a 2-month filibuster, again raising the charge that "discrimination" would be defined to include racial imbalance. Senator Robertson remarked:
"What does discrimination mean? If it means what I think it does, and which it could mean, it means that a man could be required to have a quota or he would be discriminating."
Id. at 7419 (emphasis added). Senators Smathers and Sparkman conceded that Title VII did not, in so many words, require the use of quotas, but feared that employers would adopt racial quotas or preferences to avoid being charged with discrimination. Id. at 7800, 8500, 8618-8619. Even outsiders joined in the debate. Senator Javits referred to charges raised by Governor Wallace of Alabama that the bill
"vested power in a federal inspector who, under an allegation of racial imbalance . . . can establish a quota system whereby a certain percentage of a certain ethnic group must be employed."
Id. at 11471. The bill's supporters insisted that employers would not be required to implement racial quotas to avoid being charged with liability. [Footnote 33] Nonetheless, opponents remained skeptical.
Recognizing that their own verbal assurances would not end the dispute over "racial balancing," supporters of the bill eventually agreed to insert an explicit disclaimer
into the language of the bill to assuage opponents' fears. Senator Dirksen introduced the comprehensive "Dirksen-Mansfield" amendment as a substitute for the entire bill, which added several provisions defining and clarifying the scope of Title VII's substantive provisions. One of those provisions, § 703(j) specifically addressed the charges of "racial balancing":
"Nothing contained in this subchapter shall be interpreted to require any . . . labor organization, or joint labor-management committee . . . to grant preferential treatment to any individual or to any group because of the race . . . of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race [admitted to the labor organization, or to any apprenticeship program] in comparison with the total number or percentage of persons of such race . . . in any community, State, section, or other area, or in the available workforce in any community, State section, or other area."
42 U.S.C. § 2000e-2(j). As Senator Humphrey explained:
"A new subsection 703(j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his workforce by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly. This subsection does not represent any change in the substance of the title. It does state clearly and accurately what we have maintained all along about the bill's intent and meaning."
110 Cong.Rec. at 12723. See also id. at 12618 (remarks of Sen. Muskie) (§ 703(j) "limit[s] the term unlawful employment practice' by spelling out
a number of situations that could not be considered unlawful"). [Footnote 34] Section 703(j) apparently calmed the fears of most opponents, for complaints of "racial balance" and "quotas" died down considerably after its adoption.
In contrast to the heated debate over the substantive provisions of § 703, the Senate paid scant attention to the remedial provisions of § 706(g). Several Senators did emphasize, in reference to the last sentence of section 706(g), that
"[t]he title does not provide for the reinstatement or employment of a person . . . if he was fired or refused employment or promotion for any reason other than discrimination prohibited by the Title."
110 Cong.Rec. at 11848 (remarks of Sen. Humphrey). [Footnote 35] While both petitioners and the EEOC liberally quote from these excerpts, we do not read these statements as supporting their argument that a district court may not order affirmative race-conscious relief which may incidentally benefit individuals who are not identified victims of unlawful discrimination. To the contrary, these statements confirm
our reading of the last sentence of § 706(g): that a court has no power to award relief to an individual who was denied an employment opportunity for reasons other than discrimination.
After 83 days of debate, the Senate adopted Title VII by a vote of 73 to 27. 110 Cong.Rec. at 14511. Rather than setting up a Conference Committee, the House voted directly upon, and passed, the Senate version of the bill. Id. at 15897. The bill's sponsors repeated, for the last time, that Title VII "[did] not require quotas, racial balance, or any of the other things that the opponents have been saying about it." Id. at 15876 (remarks of Rep. Lindsay); see also id. at 15893 (remarks of Rep. MacGregor); ibid. (remarks of Rep. McCulloch).
To summarize, many opponents of Title VII argued that an employer could be found guilty of discrimination under the statute simply because of a racial imbalance in his workforce, and would be compelled to implement racial "quotas" to avoid being charged with liability. Weber, 443 U.S. at 443 U. S. 205. At the same time, supporters of the bill insisted that employers would not violate Title VII simply because of racial imbalance, and emphasized that neither the Commission nor the courts could compel employers to adopt quotas solely to facilitate racial balancing. Id. at 443 U. S. 207, n. 7. The debate concerning what Title VII did and did not require culminated in the adoption of § 703(j), which stated expressly that the statute did not require an employer or labor union to adopt quotas or preferences simply because of a racial imbalance. However, while Congress strongly opposed the use of quotas or preferences merely to maintain racial balance, it gave no intimation as to whether such measures would be acceptable as remedies for Title VII violations. [Footnote 36]
Congress' failure to consider this issue is not surprising, since there was relatively little civil rights litigation prior to the adoption of the 1964 Civil Rights Act. More importantly, the cases that had been litigated had not resulted in the sort of affirmative action remedies that, as later became apparent, would sometimes be necessary to eliminate effectively the effects of past discrimination. Thus, the use of racial preferences as a remedy for past discrimination simply was not an issue at the time Title VII was being considered. Our task, then, is to determine whether Congress intended to preclude a district court from ordering affirmative action in appropriate circumstances as a remedy for past discrimination. See Brooklyn Savings Bank v. O'Neil,324 U. S. 697, 324 U. S. 706 (1945); Burnet v. Guggenheim,288 U. S. 280, 288 U. S. 285 (1933). Our examination of the legislative policy behind Title VII leads us to conclude that Congress did not intend to prohibit a court from exercising its remedial authority in that way. [Footnote 37]
Congress deliberately gave the district courts broad authority under Title VII to fashion the most complete relief possible to eliminate "the last vestiges of an unfortunate and ignominious page in this country's history," Albemarle Paper, 422 U.S. at 422 U. S. 418. As we noted above, affirmative race-conscious relief may in some instances be necessary to accomplish this task. In the absence of any indication that Congress intended to limit a district court's remedial authority in a way which would frustrate the court's ability to enforce Title VII's mandate, we decline to fashion such a limitation ourselves.
Our reading of the scope of the district court's remedial powers under § 706(g) is confirmed by the contemporaneous interpretations of the EEOC and the Justice Department. [Footnote 38] Following the enactment of the Civil Rights Act of 1964, both the Justice Department and the EEOC, the two federal agencies
charged with enforcing Title VII, steadfastly maintained that race-conscious remedies for unlawful discrimination are available under the statute. Both agencies have, in appropriate cases, sought court orders and consent decrees containing such provisions. See, e.g., United States v. City of Alexandria, 614 F.2d 1358 (CA5 1980); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (CA10 1979); EEOC v. Contour Chair Lounge Co., 596 F.2d 809 (CA8 1979); EEOC v. American Tel. & Tel. Co., 556 F.2d 167 (CA3 1977); United States v. Masonry Contractors Assn. of Memphis, Inc., 497 F.2d 871 (CA6 1974); United States v. Local Union No. 212 International Brotherhood of Electrical Workers, 472 F.2d 634 (CA6 1973); United States v. Wood, Wire and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (CA2), cert. denied, 412 U.S. 939 (1973); United States v. Ironworkers Local 86, 443 F.2d 544, 548 (CA9), cert. denied, 404 U.S. 984 (1971); see also Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, 29 CFR § 1608 (1985); Uniform Guidelines on Employee Selection Procedures § 1607.17; 42 Op.Atty.Gen. 405 (1969). The agencies' contemporaneous reading of the statute lends strong support to our interpretation. See Udall v. Tallman,380 U. S. 1, 380 U. S. 16 (1965); E. I. du Pont de Nemours & Co. v. Collins,432 U. S. 46, 432 U. S. 54-55 (1977).
Finally, our interpretation of § 706(g) is confirmed by the legislative history of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, which amended Title VII in several respects. One such change modified the language of § 706(g) to empower a court to order
"such affirmative action as may be appropriate, which may include, but is not limited to reinstatement or hiring of employees . . . or any other equitable relief as the court deems appropriate."
42 U.S.C. § 2000e-5(g) (emphasized language added in 1972). This language was intended "to give the courts wide discretion exercising
their equitable powers to fashion the most complete relief possible." 118 Cong.Rec. 7168 (1972). While the section-by-section analysis undertaken in the Conference Committee Report stressed the need for "make-whole" relief for the "victims of unlawful discrimination," id. at 7168, 7565, nowhere did Congress suggest that a court lacked the power to award preferential remedies that might benefit nonvictims. Indeed, the Senate's rejection of two other amendments supports a contrary conclusion.
During the 1972 debates, Senator Ervin introduced an amendment to counteract the effects of the Department of Labor's so-called Philadelphia Plan. The Philadelphia Plan was established pursuant to Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.), and required prospective federal contractors to submit affirmative action programs including "specific goals of minority manpower utilization." Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159, 163 (CA3), cert. denied, 404 U.S. 854 (1971). Attacking the Plan as "[t]he most notorious example of discrimination in reverse," 118 Cong.Rec. at 1663, Senator Ervin proposed an amendment to Title VII that read, in relevant part:
"No department, agency, or officer of the United States shall require an employer to practice discrimination in reverse by employing persons of a particular race . . . in either fixed or variable numbers, proportions, percentages, quotas, goals, or ranges."
Id. at 1662. Senator Ervin complained that the amendment was needed because both the Department of Labor and the EEOC were ignoring § 703(j)'s prohibition against requiring employers to engage in preferential hiring for racial minorities. Id. at 1663-1664.
Senator Javits vigorously opposed Senator Ervin's proposal. First, he recognized that the amendment, while targeted at the Philadelphia Plan, would also jettison "the whole concept of affirmative action' as it has been developed under Executive Order 11246 and as a remedial concept under
Title VII." Id. at 1664 (emphasis added). He explained that the amendment would
"deprive the courts of the opportunity to order affirmative action under title VII of the type which they have sustained in order to correct a history of unjust and illegal discrimination in employment."
Id. at 1665. To emphasize this point, Senator Javits had printed in the Congressional Record both the decision of the Court of Appeals for the Third Circuit sustaining the Philadelphia Plan and a decision by the Court of Appeals for the Ninth Circuit affirming a District Court's Title VII remedial order requiring a union to indenture a certain percentage of black apprentices and to offer special programs for certain black applicants. Id. at 1665-1675 (reprinting Contractors Assn. and Ironworkers Local 86, supra). [Footnote 39] Senator Javits summarized his attack on the Ervin amendment as follows:
"[I]t would torpedo orders of courts seeking to correct a history of unjust discrimination in employment on racial or color grounds, because it would prevent the court from ordering specific measures which could assign specific percentages of minorities that had to be hired, and that could apply to government as well as private employers."
Id. at 1675. Senator Williams, referring to Senator Javits' examples of "the kind of situation that could be affected adversely" by Senator Ervin's amendment, argued that the
"amendment would strip title VII . . . of all its basic fiber. It can be read to deprive even the courts of any power to remedy clearly proven cases of discrimination."
Id. at 1676. The Ervin amendment was defeated by a margin of 2 to 1. Ibid.
Senator Ervin proposed a second amendment that would have extended § 703(j)'s prohibition against racial preferences to "Executive Order Numbered 11246, or any other law or Executive Order," id. at 4917-4918; this amendment was also defeated resoundingly. Id. at 4918. [Footnote 40] Thus, the legislative history of the 1972 amendments to Title VII confirms the availability of race-conscious affirmative action as a remedy under the statute. Congress was aware that both the Executive and Judicial Branches had used such measures to remedy past discrimination, [Footnote 41] and rejected amendments that would have barred such remedies. Instead, Congress reaffirmed the breadth of the court's remedial powers under § 706(g) by adding language authorizing courts to order "any
other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g). The section-by-section analysis undertaken by the Conference Committee Report confirms Congress' resolve to accept prevailing judicial interpretations regarding the scope of Title VII:
"[I]n any area where the new law does not address itself, or in any area where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII."
118 Cong.Rec. at 7166, 7564. Thus,
"[e]xecutive, judicial, and congressional action subsequent to the passage of Title VII conclusively established that the Title did not bar the remedial use of race."
Bakke, 438 U.S. at 438 U. S. 353, n. 28 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); see also Boston Chapter, NAACP. Inc. v. Beecher, 504 F.2d 1017, 1027-1028 (CA1 1974), cert. denied, 421 U.S. 910 (1975); United States v. Local No. 212 International Brotherhood of Electrical Workers, 472 F.2d at 636; United States v. International Union of Elevator Constructors, Local Union No. 5, 538 F.2d 1012, 1017-1020 (CA3 1976); cf. North Haven Board of Education v. Bell,456 U. S. 512, 456 U. S. 534-535 (1982); Lorillard v. Pons,434 U. S. 575, 434 U. S. 580-581 (1978). [Footnote 42]
Finally, petitioners and the EEOC find support for their reading of § 706(g) in several of our decisions applying that provision. Petitioners refer to several cases for the proposition that court-ordered remedies under § 706(g) are limited to make-whole relief benefiting actual victims of past discrimination. See Ford Motor Co. v. EEOC,458 U. S. 219 (1982); Connecticut v. Teal,457 U. S. 440 (1982); Teamsters v. United States,431 U. S. 324 (1977); Franks v. Bowman Transportation Co.,424 U. S. 747 (1976); Albemarle Paper Co. v. Moody,422 U. S. 405 (1975). This reliance is misguided. The cases cited hold only that a court may order relief designed to make individual victims of racial discrimination whole. See Teamsters, supra, (competitive seniority); Franks, supra. at 424 U. S. 779 (same); Albemarle Paper, supra, at 422 U. S. 422 (backpay). None of these decisions suggested that individual "make-whole" relief was the only kind of remedy available under the statute; on the contrary, several cases emphasized that the district court's remedial powers should be exercised both to eradicate the effects of unlawful discrimination as well as to make the victims of past discrimination whole. Teamsters, supra, at 431 U. S. 364; Franks, supra, at 424 U. S. 771; Albemarle Paper, supra, at 422 U. S. 421. Neither do these cases suggest that § 706(g) prohibits a court from ordering relief which might benefit nonvictims; indeed, several cases acknowledged that the district court has broad authority to
"devise prospective relief designed to assure that employers found to be in violation of [Title VII] eliminate their discriminatory practices and the effects therefrom."
Petitioners claim to find their strongest support in Firefighters v. Stotts,467 U. S. 561 (1984). In Stotts, the city of Memphis, Tennessee, had entered into a consent decree requiring
affirmative steps to increase the proportion of minority employees in its Fire Department. Budgetary cuts subsequently forced the city to lay off employees; under the city's last-hired, first-fired seniority system, many of the black employees who had been hired pursuant to the consent decree would have been laid off first. These employees sought relief, and the District Court, concluding that the proposed layoffs would have a racially discriminatory effect, enjoined the city from applying its seniority policy "insofar as it will decrease the percentage of black[s] that are presently employed." Id. at 467 U. S. 567. We held that the District Court exceeded its authority.
First, we rejected the claim that the District Court was merely enforcing the terms of the consent decree, since the parties had expressed no intention to depart from the existing seniority system in the event of layoffs. Second, we concluded that the District Court's order conflicted with § 703(h) of Title VII, [Footnote 43] which "permits the routine application of a seniority system absent proof of an intention to discriminate." Id. at 467 U. S. 577. Since the District Court had found that the proposed layoffs were not motivated by a discriminatory purpose, we held that the court erred in enjoining the city from applying its seniority system in making the layoffs.
We also rejected the Court of Appeals' suggestion that the District Court's order was justified by the fact that, had plaintiffs prevailed at trial, the court could have entered an order overriding the city's seniority system. Relying on Teamsters, supra, we observed that a court may abridge a bona fide seniority system in fashioning a Title VII remedy only to make victims of intentional discrimination whole, that
is, a court may award competitive seniority to individuals who show that they had been discriminated against. However, because none of the firefighters protected by the court's order was a proven victim of illegal discrimination, we reasoned that, at trial, the District Court would have been without authority to override the city's seniority system, and therefore the court could not enter such an order merely to effectuate the purposes of the consent decree.
While not strictly necessary to the result, we went on to comment that
"[o]ur ruling in Teamsters that a court can award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination is consistent with the policy behind § 706(g),"
which, we noted, "is to provide make-whole' relief only to those who have been actual victims of illegal discrimination." 467 U.S. at 467 U. S. 579-580. Relying on this language, petitioners, joined by the EEOC, argue that both the membership goal and the Fund order contravene the policy behind § 706(g), since they extend preferential relief to individuals who were not the actual victims of illegal discrimination. We think this argument both reads Stotts too broadly and ignores the important differences between Stotts and this case.
Stotts discussed the "policy" behind § 706(g) in order to supplement the holding that the District Court could not have interfered with the city's seniority system in fashioning a Title VII remedy. This "policy" was read to prohibit a court from awarding make-whole relief, such as competitive seniority, backpay, or promotion, to individuals who were denied employment opportunities for reasons unrelated to discrimination. The District Court's injunction was considered to be inconsistent with this "policy," because it was tantamount to an award of make-whole relief (in the form of competitive seniority) to individual black firefighters who had not shown that the proposed layoffs were motivated by racial discrimination. See Note, Race-Conscious Remedies Versus Seniority Systems: Firefighters Local Union No. 1784 v.
Stotts, 30 St.Louis U.L.J. 257, 269 (1985). [Footnote 44] However, this limitation on individual make-whole relief does not affect a court's authority to order race-conscious affirmative action. The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Such relief is provided to the class as a whole, rather than to individual members; no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination. [Footnote 45] In this case, neither the membership goal nor the Fund order required petitioners to indenture or train particular individuals, and neither required them to admit to membership individuals who were refused admission for reasons unrelated to discrimination. We decline petitioners' invitation to read Stotts to prohibit a court from ordering any kind of race-conscious affirmative relief that might benefit nonvictims. [Footnote 46] This reading would distort
the language of § 706(g), and would deprive the courts of an important means of enforcing Title VII's guarantee of equal employment opportunity. [Footnote 47]
Although we conclude that § 706(g) does not foreclose a district court from instituting some sorts of racial preferences where necessary to remedy past discrimination, we do not mean to suggest that such relief is always proper. While the fashioning of "appropriate" remedies for a particular Title VII violation invokes the "equitable discretion of the district courts," Franks, 424 U.S. at 424 U. S. 770, we emphasize that a court's judgment should be guided by sound legal principles. In particular, the Court should exercise its discretion with an eye towards Congress' concern that race-conscious affirmative measures not be invoked simply to create a racially balanced workforce. In the majority of Title VII cases, the
court will not have to impose affirmative action as a remedy for past discrimination, but need only order the employer or union to cease engaging in discriminatory practices and award make-whole relief to the individuals victimized by those practices. However, in some cases, affirmative action may be necessary in order effectively to enforce Title VII. As we noted before, a court may have to resort to race-conscious affirmative action when confronted with an employer or labor union that has engaged in persistent or egregious discrimination. Or such relief may be necessary to dissipate the lingering effects of pervasive discrimination. Whether there might be other circumstances that justify the use of court-ordered affirmative action is a matter that we need not decide here. We note only that a court should consider whether affirmative action is necessary to remedy past discrimination in a particular case before imposing such measures, and that the court should also take care to tailor its orders to fit the nature of the violation it seeks to correct. [Footnote 48] In this case, several factors lead us to conclude that the relief ordered by the District Court was proper.
First, both the District Court and the Court of Appeals agreed that the membership goal and Fund order were necessary to remedy petitioners' pervasive and egregious discrimination. The District Court set the original 29% membership goal upon observing that
"[t]he record in both state and federal courts against [petitioners] is replete with instances of their bad faith attempts to prevent or delay affirmative
401 F.Supp. at 488. The court extended the goal after finding petitioners in contempt for refusing to end their discriminatory practices and failing to comply with various provision of RAAPO. In affirming the revised membership goal, the Court of Appeals observed that
"[t]his court has twice recognized Local 28's long-continued and egregious racial discrimination . . . , and Local 28 has presented no facts to indicate that our earlier observations are no longer apposite."
753 F.2d at 1186. In light of petitioners' long history of "foot-dragging resistance" to court orders, simply enjoining them from once again engaging in discriminatory practices would clearly have been futile. Rather, the District Court properly determined that affirmative race-conscious measures were necessary to put an end to petitioners' discriminatory ways.
Both the membership goal and Fund order were similarly necessary to combat the lingering effects of past discrimination. In light of the District Court's determination that the union's reputation for discrimination operated to discourage nonwhites from even applying for membership, it is unlikely that an injunction would have been sufficient to extend to nonwhites equal opportunities for employment. Rather, because access to admission, membership, training, and employment in the industry had traditionally been obtained through informal contacts with union members, it was necessary for a substantial number of nonwhite workers to become members of the union in order for the effects of discrimination to cease. The Fund, in particular, was designed to insure that nonwhites would receive the kind of assistance that white apprentices and applicants had traditionally received through informal sources. On the facts of this case, the District Court properly determined that affirmative, race-conscious measures were necessary to assure the equal employment opportunities guaranteed by Title VII.
Second, the District Court's flexible application of the membership goal gives strong indication that it is not being
used simply to achieve and maintain racial balance, but rather as a benchmark against which the court could gauge petitioners' efforts to remedy past discrimination. The court has twice adjusted the deadline for achieving the goal, and has continually approved of changes in the size of the apprenticeship classes to account for the fact that economic conditions prevented petitioners from meeting their membership targets; there is every reason to believe that both the court and the administrator will continue to accommodate legitimate explanations for petitioners' failure to comply with the court's orders. Moreover, the District Court expressly disavowed any reliance on petitioners' failure to meet the goal as a basis for the contempt finding, but instead viewed this failure as symptomatic of petitioners' refusal to comply with various subsidiary provisions of RAAPO. In sum, the District Court has implemented the membership goal as a means by which it can measure petitioners' compliance with its orders, rather than as a strict racial quota. [Footnote 49]
Third, both the membership goal and the Fund order are temporary measures. Under AAAPO,
"[p]referential selection of [union members] will end as soon as the percentage of [minority union members] approximates the percentage of [minorities] in the local labor force."
Weber, 443 U.S. at 443 U. S. 208-209; see United States v. City of Alexandria, 614 F.2d at 1366. Similarly, the Fund is scheduled to terminate when petitioners achieve the membership goal, and the court determines that it is no longer needed to remedy past discrimination. The District Court's orders thus operate "as a temporary tool for remedying past discrimination without attempting to maintain' a previously achieved balance." Weber, 443 U.S. at 443 U. S. 216 (BLACKMUN, J., concurring).
Finally, we think it significant that neither the membership goal nor the Fund order "unnecessarily trammel[s] the interests of white employees." Id. at 443 U. S. 208; Teamsters, 431 U.S. at 431 U. S. 352-353. Petitioners concede that the District Court's orders did not require any member of the union to be laid off, and did not discriminate against existing union members. See Weber, supra, at 443 U. S. 208; see also 30 St.Louis U.L.J. at 264. While whites seeking admission into the union may be denied benefits extended to their nonwhite counterparts, the court's orders do not stand as an absolute bar to such individuals; indeed, a majority of new union members have been white. See City of Alexandria, supra, at 1366. Many provisions of the court's orders are race-neutral (for example, the requirement that the JAC assign one apprentice for every four journeyman workers), and petitioners remain free to adopt the provisions of AAAPO and the Fund order for the benefit of white members and applicants.
Petitioners also allege that the membership goal and Fund order contravene the equal protection component of the Due
Process Clause of the Fifth Amendment because they deny benefits to white individuals based on race. We have consistently recognized that government bodies constitutionally may adopt racial classifications as a remedy for past discrimination. See Wygant v. Jackson Board of Education,476 U. S. 267 (1986); Fullilove v. Klutznick,448 U. S. 448 (1980); University of California Regents v. Bakke,438 U. S. 265 (1978); Swann v. Charlotte-Mecklenburg Board of Education,402 U. S. 1 (1971). We have not agreed, however, on the proper test to be applied in analyzing the constitutionality of race-conscious remedial measures. See Wygant, 476 U.S. at 476 U. S. 274 (opinion of POWELL, J.) (means chosen must be "narrowly tailored" to achieve "compelling government interest"); id. at 476 U. S. 284-287 (O'CONNOR, J., concurring in part and concurring in judgment); id. at 476 U. S. 301-302 (MARSHALL, J. dissenting); id. at 476 U. S. 313 (STEVENS, J., dissenting) (public interest served by racial classification and means pursued must justify adverse effects on the disadvantaged group), Fullilove, 448 U.S. at 476 U. S. 491 (opinion of BURGER, C.J.) (racial preferences subject to "a most searching examination"); id. at 476 U. S. 519 (MARSHALL, J., concurring in judgment) (remedial use of race must be substantially related to achievement of important governmental objectives); Bakke, 438 U.S. at 438 U. S. 305 (opinion of POWELL, J.) (racial classification must be necessary to accomplishment of substantial state interest); id. at 438 U. S. 359 (opinion of BRENNAN, WHITE, MARSHALL and BLACKMUN, JJ.) (remedial use of race must be substantially related to achievement of important governmental objectives). We need not resolve this dispute here, since we conclude that the relief ordered in this case passes even the most rigorous test -- it is narrowly tailored to further the Government's compelling interest in remedying past discrimination.
In this case, there is no problem, as there was in Wygant, with a proper showing of prior discrimination that would justify the use of remedial racial classifications. Both the District Court and Court of Appeals have repeatedly found
petitioners guilty of egregious violations of Title VII, and have determined that affirmative measures were necessary to remedy their racially discriminatory practices. More importantly, the District Court's orders were properly tailored to accomplish this objective. First, the District Court considered the efficacy of alternative remedies, and concluded that, in light of petitioners' long record of resistance to official efforts to end their discriminatory practices, stronger measures were necessary. See Fullilove, supra, at 448 U. S. 510 (POWELL, J., concurring); Arthur v. Nyquist, 712 F.2d 816, 822 (CA2 1983); NAACP v. Allen, 493 F.2d at 621. The court devised the temporary membership goal and the Fund as tools for remedying past discrimination. More importantly, the District Court's orders will have only a marginal impact on the interests of white workers. See Wygant, 476 U.S. at 476 U. S. 282-283 (opinion of POWELL, J.); id. at 476 U. S. 287 (O'CONNOR, J., concurring in part and concurring in judgment); id. at 476 U. S. 295 (WHITE, J., concurring in judgment); id. at 476 U. S. 309-310 (MARSHALL, J., dissenting); id. at 476 U. S. 317 (STEVENS, J, dissenting). Again, petitioners concede that the District Court's orders did not disadvantage existing union members. While white applicants for union membership may be denied certain benefits available to their nonwhite counterparts, the court's orders do not stand as an absolute bar to the admission of such individuals; again, a majority of those entering the union after entry of the court's orders have been white. We therefore conclude that the District Court's orders do not violate the equal protection safeguards of the Constitution. [Footnote 50]
Finally, Local 28 challenges the District Court's appointment of an administrator with broad powers to supervise its
compliance with the court's orders as an unjustifiable interference with its statutory right to self-governance. See 29 U.S.C. § 401(a). Preliminarily, we note that, while AAAPO gives the administrator broad powers to oversee petitioners' membership practices, Local 28 retains complete control over its other affairs. Even with respect to membership, the administrator's job is to insure that petitioners comply with the court's orders and admit sufficient numbers of nonwhites; the administrator does not select the particular individuals that will be admitted; that task is left to union officials. In any event, in light of the difficulties inherent in monitoring compliance with the court's orders, and especially petitioners' established record of resistance to prior state and federal court orders designed to end their discriminatory membership practices, appointment of an administrator was well within the District Court's discretion. See Fed.Rule Civ.Proc. 53; Ruiz v. Estelle, 679 F.2d 1115, 1160-1163 (CA5 1982), cert. denied, 460 U.S. 1042 (1983); Gary W. v. Louisiana, 601 F.2d 240, 244-245 (CA5 1979). While the administrator may substantially interfere with petitioners' membership operations, such "interference" is necessary to put an end to petitioners' discriminatory ways.
To summarize our holding today, six Members of the Court agree that a district court may, in appropriate circumstances, order preferential relief benefiting individuals who are not the actual victims of discrimination as a remedy for violations of Title VII, see Parts IV-A through IV-D, supra, (opinion of BRENNAN, J., joined by MARSHALL, J., BLACKMUN, J., and STEVENS, J.); post at 478 U. S. 483 (POWELL, J., concurring in part and concurring in judgment); post at 478 U. S. 499 (WHITE, J., dissenting), that the District Court did not use incorrect statistical evidence in establishing petitioners' nonwhite membership goal, see Part II-A, supra, that the contempt fines and Fund order were proper remedies for civil contempt, see
Part III, supra, and that the District Court properly appointed an administrator to supervise petitioners' compliance with the court's orders, see Part VI, supra. Five Members of the Court agree that, in this case, the District Court did not err in evaluating petitioners' utilization of the apprenticeship program, see Part II-B, supra, and that the membership goal and the Fund order are not violative of either Title VII or the Constitution, see Parts IV-E, V, supra, (opinion of BRENNAN, J., joined by MARSHALL, J., BLACKMUN, J., and STEVENS, J.); post this page, 478 U. S. 486-487, and n. 1 (POWELL, J., concurring in part and concurring in judgment). The judgment of the Court of Appeals is hereby
In addition to completing the apprenticeship program, an individual can gain membership in Local 28 by (1) transferring directly from a "sister" union; (2) passing a battery of journeyman level tests administered by the union; and (3) gaining admission at the time a nonunion sheet metal shop is organized by Local 28. In addition, during periods of full employment, Local 28 issues temporary work permits which allow nonmembers to work within its jurisdiction.
The Sheet Metal Workers' International Union was formed in 1888, under a Constitution which provided for the establishment of "white local unions" and relegated blacks to membership in subordinate locals. Local 28 was established in 1913 as a "white local union." Although racial restrictions were formally deleted from the International Constitution in 1946, Local 28 refused to admit blacks until 1969.
The Equal Employment Opportunity Commission (EEOC) was substituted as named plaintiff in this case. The Sheet Metal and Air Conditioning Contractors' Association of New York City (Contractors' Association) was also named as a defendant. The New York State Division of Human Rights (State), although joined as a third- and fourth-party defendant in this action, realigned itself as a plaintiff.
The court also noted that petitioners' failure to comply with EEOC regulations requiring them to keep records of each applicant's race had made it difficult for the court to evaluate the discriminatory impact of petitioners' selection procedures.
The court noted that Local 28 had offered journeyman examinations in 1968 and 1969 as a result of arbitration proceedings initiated by the Contractors' Association to force Local 28 to increase its manpower. Only 24 of 330 individuals, all of them white, passed the first examination and were admitted to the union. The court found that this examination had an adverse impact on nonwhites, and had not been validated in accordance with EEOC guidelines, and was therefore violative of Title VII. Some nonwhites did pass the second examination, and the court concluded that Local 28's failure to keep records of the number of whites and nonwhites tested made it impossible to determine whether that test had also had an adverse impact on nonwhites.
The court remarked:
"After [State] Justice Markowitz [in the 1964 state court proceeding] ordered implementation of [a plan intended to] create a 'truly nondiscriminatory union[,]' Local 28 flouted the court's mandate by expending union funds to subsidize special training sessions designed to give union members' friends and relatives a competitive edge in taking the [apprenticeship examination]. JAC obtained an exemption from state affirmative action regulations directed towards the administration of apprentice programs on the ground that its program was operating pursuant to court order; yet Justice Markowitz had specifically provided that all such subsequent regulations, to the extent not inconsistent with his order, were to be incorporated therein and applied to JAC's program. More recently, the defendants unilaterally suspended court-ordered timetables for admission of forty nonwhites to the apprentice program pending trial of this action, only completing the admission process under threat of contempt citations."
401 F.Supp. at 488.
The O & J also awarded backpay to those nonwhites who could demonstrate that they were discriminatorily excluded from union membership.
The District Court had concluded that petitioners had earned a well-deserved reputation for discriminating against nonwhites, and that this reputation "operated and still operates to discourage nonwhites seeking membership in the local union or its apprenticeship program." Id. at 487. The publicity campaign was consequently designed to dispel this reputation, and to encourage nonwhites to take advantage of opportunities for union membership.
The Affirmative Action Program originally had required the JAC to indenture at least 300 apprentices by July 1, 1976, and at least 200 apprentices in each year thereafter, up to and including 1981. These figures were adjusted downward after petitioners complained that economic conditions made it impossible for them to indenture this number of apprentices. The District Court also permitted petitioners to defer administration of the journeyman examination for the same reason.
The Contractors' Association and individual Local 28 contractors were also named as respondents to the contempt proceeding.
The court explained that the "journeymen benefiting from this policy of underutilizing the apprenticeship program comprise Local 28's white incumbent membership." App. to Pet. for Cert. A-151. The court rejected Local 28's contention that any underutilization of the apprenticeship program could be blamed on difficult economic circumstances, emphasizing that the court had "not overlooked the obstacles or problems with which [petitioners] have had to contend," and that it had
"given much consideration to the economic condition of the sheet metal trade in particular, and the construction industry in general, over the past six years."
Id.. at A-156.
The District Court found it necessary to modify RAAPO in light of the fact that the 29% nonwhite membership goal was no longer viable on the present timetable, and also because five other locals with predominantly white memberships had recently merged with Local 28. The court denied petitioners' cross-motion for an order terminating both the O & J and RAAPO, finding that these orders had not caused petitioners unexpected or undue hardship.
The administrator's comments revealed that he was more concerned with Local 28's "inability to provide accurate data" than with the specific errors he had discovered. He emphasized that Local 28 had "no formal system to verify the racial and ethnic composition of [its] membership," App. to Pet. for Cert. A-133, and that "[s]uch verification that was done was done on a totally haphazard basis." Ibid. He concluded that "[t]he lack of any proper verification controls confirms that Local 28 has not acted in the affirmative manner contemplated by the court." Ibid. More generally, he observed that
"[t]he violations found herein cannot be viewed in isolation; rather they must be seen as part of a pattern of disregard for state and federal court orders and as a continuation of conduct which led the court to find defendants in contempt."
Id. at A-138.
The Fund was to be financed by the $150,000 fine from the first contempt proceeding, plus an additional payment of $0.02 per hour for each hour worked by a journeyman or apprentice. The Fund would remain in existence until the union achieved its nonwhite membership goal, and the District Court determined that the Fund was no longer necessary.
Petitioners did not appeal the denial of their cross-motion to terminate the O & J and RAAPO. The city cross-appealed from that part of AAAPO establishing a temporary 29.23% nonwhite membership goal, claiming that the percentage should be higher. The Court of Appeals denied the cross-appeal.
With respect to the finding of underutilization of the apprenticeship program, the court noted that the District Court had mistakenly compared the total number of apprentices enrolled during the period before the O & J was entered against the number of new enrollees admitted during the period after entry of the O & J. However, the court found this error inconsequential, since the statistical comparison was "only a small part of the overall evidence showing underutilization of the apprenticeship program." EEOC v. Local 658, 753 F.2d 1172, 1180 (1985). The court determined that the District Court's finding of underutilization was supported by strong evidence that, despite a need for more apprentices, petitioners refused to advertise the apprenticeship program, and thereby help fill the need. Seen 22, infra. The court also noted that
"[m]any of the uncertainties about underutilization that are urged by defendants are due in large part to the union's noncompliance with the reporting provisions of RAAPO."
753 F.2d at 1183.
The court held that plaintiffs had failed to prove that the older workers' provision had either a discriminatory purpose or effect, because although negotiated, it was never actually implemented. The court instructed the District Court on remand to determine the status and effect of the provision. Because adoption of this provision was the only contemptuous conduct that the Contractors' Association had been charged with, the Court of Appeals vacated all contempt relief against the Association.
The court recognized that "temporary hiring ratios may be necessary in order to achieve integration of a workforce from which minorities have been unlawfully barred," but cautioned that "such race-conscious ratios are extreme remedies that must be used sparingly and carefully tailored to fit the violations found.'" Id. at 1188, quoting Association Against Discrimination v. Bridgeport, 647 F.2d 256, 281 (CA2 1981). Noting that petitioners had voluntarily indentured 45% nonwhites since January, 1981, the court concluded that a strict 1-to-1 hiring requirement was not needed to insure that a sufficient number of nonwhites were selected for the apprenticeship program.
The EEOC had argued that AAAPO prohibited the use of any new selection procedures until the 29.23% membership goal was reached.
In their brief, petitioners also suggest that the District Court's 29% membership goal was used to confirm its original finding of discrimination, and was therefore invalid under Hazelwood School District v. United States,433 U. S. 299 (1977) (proof of a pattern of discrimination by statistical evidence must be drawn from relevant geographical locations). However, the Court of Appeals recognized that the District Court's finding of liability "did not rely on inferences from racial ratios of population and employment in the area," but rather "was based on direct and overwhelming evidence of purposeful racial discrimination over a period of many years." EEOC v. Local 638, 565 F.2d 31, 36, n. 8 (1977). In any event, petitioners conceded at oral argument that they do not "challeng[e] any finding that there was deliberate discrimination." Tr. of Oral Arg. 7.
Petitioners contend that
"[i]nasmuch as [they] have now been held in contempt for not achieving the [29% membership] quota, the propriety of the evidence upon which it was derived is relevant."
Brief for Petitioners 35-36. In the first place, the District Court expressly stated that petitioners were not held in contempt for failing to attain the 29% membership goal. In any event, a
"contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed, and thus become a retrial of the original controversy."
Maggio v. Zeitz,333 U. S. 56, 333 U. S. 69 (1948); see also Walker v. City of Birmingham,388 U. S. 307, 388 U. S. 313-314 (1967); United States v. Rylander,460 U. S. 752, 460 U. S. 756-757 (1983); C. Wright & A. Miller, Federal Practice and Procedure § 2960, pp. 597-598 (1973).
The court pointed to evidence before the District Court showing that, after the O & J was entered: (1) there was a "sharp increase" in the ratio of journeymen to apprentices employed by contractors; (2) the average number of hours worked annually by journeymen "increased dramatically"; (3) the percentage of unemployed apprentices decreased; and (4) the union issued hundreds of temporary work permits, mostly to white journeymen. Based on this evidence, the Court of Appeals concluded that, despite the need for more apprentices, Local 28 had deliberately shifted employment opportunities from apprentices to predominantly white journeymen, and had refused to conduct the general publicity campaign required by RAAPO to attract nonwhites to the apprenticeship program.
The District Court had also determined that petitioners had failed to comply with the detailed recordkeeping requirements of the O & J and RAAPO. The computerized recordkeeping system was clearly designed to foster petitioners' compliance with these provisions. Finally, the assessment of attorney fees and expenses compensated respondents for costs occasioned by petitioners' contemptuous conduct.
Both petitioners and the EEOC present this challenge from a rather curious position. Petitioners did not seek review in this Court of the 29% membership goal twice approved by the Court of Appeals, even though that goal was similar to the 29.23% goal they now challenge. However, we reject the State's contention that either res judicata or the law of the case prohibits us from now addressing the legality of the membership goal. See United States v. A. S. Kreider Co.,313 U. S. 443, 313 U. S. 445-446 (1941); Southern R. Co. v. Clift,260 U. S. 316, 260 U. S. 319 (1922); Messenger v. Anderson,225 U. S. 436, 225 U. S. 444 (1912); 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice
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