STEELWORKERS v. WEBER

193

Syllabus

UNITED STEELWORKERS OF AMERICA, AFL-CIOCLC v. WEBER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT

No. 78-432.

Argued March 28, 1979-Decided June 27, 1979*

In 1974, petitioners United Steelworkers of America (USWA) and Kaiser
Aluminum & Chemical Corp. (Kaiser) entered into a master collectivebargaining agreement covering terms and conditions of employment at
15 Kaiser plants. The agreement included an affirmative action plan
designed to eliminate conspicuous racial imbalances in Kaiser's thenalmost exclusively white craftwork forces by reserving for black employees 50% of the openings in in-plant craft-training programs until
the percentage of black craftworkers in a plant, is commensurate withthe percentage of blacks in the local labor force. This litigation arosefrom the operation of the affirmative action plan at one of Kaiser's
plants where, prior to 1974, only 1.83% of the skilled craftworkers were
black, even though the local work force was approximately 39% black.
Pursuant to the national agreement, Kaiser, rather than continuing its
practice of hiring trained outsiders, established a training program totrain its production workers to fill craft openings, selecting trainees on
the basis of seniority, with the proviso that at least 50% of the trainees
were to be black until the percentage of black skilled craftworkers in
the plant approximated the percentage of blacks in the local labor force.
During the plan's first year of operation, seven black and six white craft
trainees were selected from the plant's production work force, with themost senior black trainee having less seniority than several white production workers whose bids for admission were rejected. Thereafter,
respondent Weber, one of those white production workers, instituted thisclass action in Federal District Court, alleging that because the affirmative action program had resulted in junior black employees' receiving
training in preference to senior white employees, respondent and othersimilarly situated white employees had been discriminated against in violation of the provisions of §§ 703 (a) and (d) of Title VII of the Civil
Rights Act of 1964 that make it unlawful to "discriminate . . . because*Together with No. 78-435, Kaiser Aluminum & Chemical Corp. v.
Weber et al., and No. 78-436, United States et al. v. Weber et al., also on
certiorari to the same court.

OCTOBER TERM, 1978
Syllabus

443 U. S.

of . .. race" in hiring and in the selection of apprentices for training
programs. The District Court held that the affirmative action planviolated Title VII, entered judgment in favor of the plaintiff class, andgranted injunctive relief. The Court of Appeals affirmed, holding that
all employment preferences based upon race, including those preferences
incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment.
Held:
1. Title VII's prohibition in §§ 703 (a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious
affirmative action plans. Pp. 200-208.
(a) Respondent Weber's reliance upon a literal construction of thestatutory provisions and upon McDonald v. Santa Fe Trail Transp. Co.,
427 U. S.273, which held, in a case not involving affirmative action, that
Title VII protects whites as well as blacks from certain forms of racial
discrimination, is misplaced, since the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate
traditional patterns of racial segregation. "[A] thing may be within theletter of the statute and yet not within the statute, because not within
its spirit, nor within the intention of its makers," Holy Trinity Church v.
United States, 143 U. S. 457, 459, and, thus, the prohibition against
racial discrimination in §§ 703 (a) and (d) must be read against thebackground of the legislative history of Title VII and the historical context from which the Act arose. P. 201.
(b) Examination of those sources makes clear that an interpretation of §§ 703 (a) and (d) that forbids all race-conscious affirmative
action would bring about an end completely at variance with the purpose of the statute and must be rejected. Congress' primary concern
in enacting the prohibition against racial discrimination in Title VII waswith the plight of the Negro in our economy, and the prohibition against
racial discrimination in employment was primarily addressed to the
problem of opening opportunities for Negroes in occupations which havebeen traditionally closed to them. In view of the legislative history, thevery statutory words intended as a spur or catalyst to cause "employers
and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges ofan unfortunate and ignominious page in this country's history," Albemarle Paper Co. v. Moody, 422 U. S. 405, 418, cannot be interpreted as
an absolute prohibition against all private, voluntary, race-conscious
affirmative action efforts to hasten the elimination of such vestiges.
Pp. 201-204.

STEELWORKERS v. WEBER
193

Syllabus(c) This conclusion is further reinforced by examination of the language and legislative history of § 703 (j) of Title VII, which provides
that nothing contained in Title VII "shall be interpreted to require any
employer . . . to grant preferential treatment . . . to any group becauseof the race . . . of such . . . group on account of" a de facto racial imbalance in the employer's work force. Had Congress meant to prohibit
all race-conscious affirmative action, it could have provided that
Title VII would not require or permit racially preferential integration
efforts. The legislative record shows that § 703 (j) was designed to prevent § 703 from being interpreted in such a way as to lead to undue
federal regulation of private businesses, and thus use of the word"require" rather than the phrase "require or permit" in § 703 (j) fortifies
the conclusion that Congress did nbt intend to limit traditional businessfreedom to such a degree as to prohibit all voluntary, race-conscious
affirmative action. Pp. 204-207.
2. It is not necessary in these cases to define the line of demarcation
between permissible and impermissible affirmative action plans; it suffices to hold that the challenged Kaiser-USWA plan falls on the permissible side of the line. The purposes of the plan mirror those of thestatute, being designed to break down old patterns of racial segregationand hierarchy, and being structured to open employment opportunities
for Negroes in occupations which have been traditionally closed to them.
At the same time, the plan does not unnecessarily trammel the interestsof white employees, neither requiring the discharge of white workers
and their replacement with new black hirees, nor creating an absolute
bar to the advancement of white employees since half of those trainedin the program will be white. Moreover, the plan is a temporary
measure, not intended to maintain racial balance, but simply to eliminate
a manifest racial imbalance. Pp. 208-209.
563 F. 2d 216, reversed.
BRENNAN, J., delivered the opinion of the Court, in which STEWART,
and BLACKMUN, JJ., joined. BLACKMUN, J., filed a

WHITE, MARSHALL,

concurring opinion, post, 209. BURGER, C. J., filed a dissenting opinion,
post, p. 216. REHNQUIST, J., filed a dissenting opinion, in which BURGER,
C. J., joined, post, p. 219. POWELL and STEVENS, JJ., took no part in theconsideration or decision of the cases.

Michael H. Gottesman argued the cause for petitioner in
No. 78-432. With him on the briefs were Robert M. Weinberg, Elliot Bredhof], Bernard Kleiman, Carl Frankel, Jerome

OCTOBER TERM, 1978
Counsel

443 U. S.

A. Cooper, John C. Falkenberry,J. Albert Woll, and Laurence
Gold. Thompson Powers argued the cause for petitioner in
No. 78-435. With him on the briefs was Jane McGrew.
Deputy Solicitor General Wallace argued the cause for theUnited States et al., petitioners in No. 78-436. With him on
the briefs were Solicitor General McCree, Assistant Attorney
General Days, William C. Bryson, Brian K. Landsberg, andRobert J. Reinstein.
Michael R. Fontham argued the cause and filed a brief forrespondent Weber in all cases.t
tBriefs of amici curiae urging reversal in all cases were filed by Arthur
Kinoy and Doris Peterson for the Affirmative Action Coordinating Center
et al.; by E. Richard Larson, Burt Neuborne, and Frank Askin for theAmerican Civil Liberties Union et al.; by Richard B. Sobol, Jerome Cohen,
Harrison Combs, John Fillion, Winn Newman, Carole W. Wilson, David

Rubin, John Tadlock, James E. Youngdahl, A. L. Zwerdling, and Janet
Kohn for the American Federation of State, County and Municipal Employees, AFL-CIO, et al.; by Samuel Yee, Charles Stephen Ralstan, andBill Lann Lee for the Asian American Legal Defense and Education Fundet al.; by James F. Miller and Stephen V. Bomse for the California Fair
Employment Practice Commission et al.; by Charles A. Bane, Thomas D.
Barr, Norman Redlich, Robert A. Murphy, Richard T. Seymour, Norman
J. Chachkin, and Richard S. Kohn for the Lawyers' Committee for Civil
Rights Under Law; by Nathaniel R. Jones for the National Association
for the Advancement of Colored People; by Jack Greenberg, James M.
Nabrit III, Eric Schnapper, Lowell Johnston, Barry L. Goldstein, Vernon
E. Jordan, Jr., and Wiley A. Branton for the N. A. A. C. P. Legal Defense
and Educational Fund, Inc., et al.; by Herbert 0. Reid and John W.
Davis for the National Medical Association, Inc., et al.; by Robert Hermann and Evan A. Davis for the National Puerto Rican Coalition et al.;by Jerome Tauber for the National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO; and by Eileen M. Stein and Pat Eames
for Patricia Schroeder et al. Sybille C. Fritzsche filed a brief for the
Women's Caucus, District 31 of the United Steelworkers of America, as
amicus curiae in No. 78-432 urging reversal.
Briefs of amici curiae urging affirmance in all cases were filed by J. D.
Burdick and Ronald E. Yank for the California Correctional Officers
Association; by GerardC. Smetana for the Government Contract Employers
Association; by Ronald A. Zumbrun and John H. Findley for the PacificSTEELWORKERS v. WEBER
193

Opinion of the Court

MR. JUSTICE BRENNAN delivered the opinion of the Court.
Challenged here is the legality of an affirmative action
plan-collectively bargained by an employer and a unionthat reserves for black employees 50% of the openings in an
in-plant craft-training program until the percentage of black
craftworkers in the plant is commensurate with the percentageof blacks in the local labor force. The question for decision iswhether Congress, in Title VII of the Civil Rights Act of 1964,
78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., left
employers and unions in the private sector free to take suchrace-conscious steps to eliminate manifest racial imbalances in
traditionally segregated job categories. We hold that Title
VII does not prohibit such race-conscious affirmative actionplans.
I
In 1974, petitioner United Steelworkers of America (USWA)
and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser)
Legal Foundation; by Leonard F. Walentynowicz for the Polish American
Congress et al.; and by Wayne T. Elliott for the Southeastern Legal
Foundation, Inc. Jack N. Rogers filed a brief for the United States
Justice Foundation as amicus curiae in No. 78-432 urging affirmance.
Briefs of amici curiae in all cases were filed by Vilma S. Martinez,
Morris J. Baller, and Joel G. Contreras for the American G. I. Forumet al.; by Philip B. Kurland, Larry M. Lavinsky, Arnold Forster, Harry
J. Keaton, Meyer Eisenberg, Justin J. Finger, Jeffrey P. Sinensky, Richard
A. Weisz, Themis N. Anastos, Dennis Rapps, and Julian E. Kulas for
the Anti-Defamation League of B'nai B'rith et al.; by John W. Finley, Jr.,
Michael Blinick, Deyan R. Brashich, and Eugene V. Rostow for the Committee on Academic Nondiscrimination and Integrity; by Kenneth C.
McGuiness, Robert E. Williams, and Douglas S. McDowell for the Equal
Employment Advisory Council; by Mark B. Bigelow for the National
Coordinating Committee for Trade Union Action and Democracy; byPhilips B. Patton for the Pacific Civil Liberties League; by Frank J.
Donner for the United Electrical, Radio and Machine Workers of America;
by Paul D. Kamenar for the Washington Legal Foundation; and by
Gloria R. Allred for the Women's Equal Rights Legal Defense and Education Fund. Burt Pines and Cecil W. Marr filed a brief for the city of
Los Angeles as amicus curiae in No. 78-435.

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

entered into a master collective-bargaining agreement covering terms and conditions of employment at 15 Kaiser plants.
The agreement contained, inter alia, an affirmative action plan
designed to eliminate conspicuous racial imbalances in Kaiser's
then almost exclusively white craftwork forces. Black crafthiring goals were set for each Kaiser plant equal to the percentage of blacks in the respective local labor forces. To
enable plants to meet these goals, on-the-job training programs were established to teach unskilled production workers-black and white-the skills necessary to become craftworkers. The plan reserved for black employees 50% of the
openings in these newly created in-plant training programs.
This case arose from the operation of the plan at Kaiser's
plant in Gramercy, La. Until 1974, Kaiser hired as craftworkers for that plant only persons who had had prior craft
experience. Because blacks had long been excluded fromcraft unions,1 few were able to present such credentials. As
a consequence, prior to 1974 only 1.83% (5 out of 273) of
the skilled craftworkers at the Gramercy plant were black,'Judicial findings of exclusion from crafts on racial grounds are so
numerous as to make such exclusion a proper subject for judicial notice.
See, e. g., United States v. Elevator Constructors, 538 F. 2d 1012 (CA31976); Associated General Contractors of Massachusetts v. Altschuler,
490 F. 2d 9 (CA1 1973); Southern Illinois Builders Assn. v. Ogilvie, 471
F. 2d 680 (CA7 1972); Contractors Assn. of Eastern Pennsylvania v.
Secretary of Labor, 442 F. 2d 159 (CA3 1971); Insulators gAsbestos
Workers v. Vogler, 407 F. 2d 1047 (CA5 1969); Buckner v. Goodyear Tire
& Rubber Co., 339 F. Supp. 1108 (ND Ala. 1972), aff'd without opinion,
476 F. 2d 1287 (CA5 1973). See also U. S. Commission on Civil Rights,
The Challenge Ahead: Equal Opportunity in Referral Unions 58-94(1976) (summarizing judicial findings of discrimination by craft unions);
G. Myrdal, An American Dilemma 1079-1124 (1944); F. Marshall & V.
Briggs, The Negro and Apprenticeship (1967); S. Spero & A. Harris, The
Black Worker (1931); U. S. Commission on Civil Rights, Employment 97(1961); State Advisory Committees, U. S. Commission on Civil Rights, 50
States Report 209 (1961); Marshall, The Negro in Southern Unions,in The Negro and the American Labor Movement 145 (J. Jacobson ed.
1968); App. 63, 104.

STEELWORKERS v. WEBER
193

Opinion of the Courteven though the work force in the Gramercy area was approximately 39% black.
Pursuant to the national agreement Kaiser altered its crafthiring practice in the Gramercy plant. Rather than hiring
already trained outsiders, Kaiser established a training program to train its production workers to fill craft openings.
Selection of craft trainees was made on the basis of seniority,with the proviso that at least 50% of the new trainees were
to be black until the percentage of black skilled craftworkers
in the Gramercy plant approximated the percentage of blacks
in the local labor force. See 415 F. Supp. 761, 764.
During 1974, the first year of the operation of the KaiserUSWA affirmative action plan, 13 craft trainees were selectedfrom Gramercy's production work force. Of these, seven were
black and six white. The most senior black selected into theprogram had less seniority than several white production
workers whose bids for admission were, rejected. Thereafter
one of those white production workers, respondent BrianWeber (hereafter respondent), instituted this class action in
the United States District Court for the Eastern District ofLouisiana.
The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to the affirmative action program had resulted in junior black employees' receiving training in preference to senior white employees, thus
discriminating against respondent and other similarly situated white employees in violation of §§ 703 (a) 2 and2 Section 703 (a),78 Stat. 255, as amended, 86 Stat. 109, 42 U. S. C.
§ 2000e-2 (a), provides:"(a) . . .It shall be an unlawful employment practice for an employer"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of suchindividual's race, color, religion, sex, or national origin; or"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individ-

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

(d) 3 of Title VII. The District Court held that the plan violated Title VII, entered a judgment in favor of the plaintiff
class, and granted a permanent injunction prohibiting Kaiser
and the USWA "from denying plaintiffs, Brian F. Weber and allother members of the class, access to on-the-job training programs on the basis of race." App. 171. A divided panel of
the Court of Appeals for the Fifth Circuit affirmed, holdingthat all employment preferences based upon race, including
those preferences incidental to bona fide affirmative actionplans, violated Title VII's prohibition against racial discrimination in employment. 563 F. 2d 216 (1977). We granted
certiorari. 439 U. S. 1045 (1978). We reverse.
II
We emphasize at the outset the narrowness of our inquiry.
Since the Kaiser-USWA plan does not involve state action,
this case does not present an alleged violation of the Equal
Protection Clause of the Fourteenth Amendment. Further,since the Kaiser-USWA plan was adopted voluntarily, we are
not concerned with what Title VII requires or with what a
court might order to remedy a past proved violation of theAct. The only question before us is the narrow statutory issueof whether Title VII forbids private employers and unions fromvoluntarily agreeing upon bona fide affirmative action plansthat accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan. That question wasual of employment opportunities or otherwise adversely affect his status
as an employee, because of such individual's race, color, religion, sex, or
national origin."
3 Section 703 (d), 78 Stat. 256, 42 U. S. C. § 2000e-2 (d), provides:"It shall be an unlawful employment practice for any employer, labororganization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs
to discriminate against any individual because of his race, color, religion,sex, or national origin in admission to, or employment in, any program
established to provide apprenticeship or other training."

STEELWORKERS v. WEBER
193

Opinion of the Court

expressly left open in McDonald v. Santa Fe Trail Transp. Co.,
427 U. S. 273, 281 n. 8 (1976), which held, in a case not involving affirmative action, that Title VII protects whites as wellas blacks from certain forms of racial discrimination.
Respondent argues that Congress intended in Title VII toprohibit all race-conscious affirmative action plans. Respondent's argument rests upon a literal interpretation of §§ 703(a) and (d) of the Act. Those sections make it unlawful to"discriminate . . . because of . . . race" in hiring and in theselection of apprentices for training programs. Since, theargument runs, McDonaldv. SantaFe Trail Transp. Co., supra,
settled that Title VII forbids discrimination against whites aswell as blacks, and since the Kaiser-USWA affirmative action
plan operates to discriminate against white employees solely
because they are white, it follows that the Kaiser-USWA planviolates Title VII.
Respondent's argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA planis an affirmative action plan voluntarily adopted by private
parties to eliminate traditional patterns of racial segregation.
In this context respondent's reliance upon a literal construction of §§ 703 (a) and (d) and upon McDonald is misplaced.
See McDonald v. Santa Fe Trail Transp. Co., supra,at 281 n. 8.
It is a "familiar rule, that a thing may be within the letter ofthe statute and yet not within the statute, because not within
its spirit, nor within the intention of its makers." Holy
Trinity Church v, United States, 143 U. S. 457, 459 (1892).
The prohibition against racial discrimination in §§ 703 (a) and(d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historicalcontext from which the Act arose. See Train v. Colorado
Public Interest Research Group, 426 U. S. 1, 10 (1976);
National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 620(1967); United States v. American Trucking Assns., 310 U. S.
534, 543-544 (1940). Examination of those sources makes

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

clear that an interpretation of the sections that forbade all raceconscious affirmative action would "bring about an end completely at variance with the purpose of the statute" and must
be rejected. United States v. Public Utilities Comm'n, 345
U. S. 295, 315 (1953). See Johansen v. United States, 343
U. S. 427, 431 (1952); Longshoremen v. Juneau Spruce Corp.,
342 U. S. 237, 243 (1952); Texas & Pacific R. Co. v. Abilene
Cotton Oil Co., 204 U. S. 426 (1907).
Congress' primary concern in enacting the prohibition
against racial discrimination in Title VII of the Civil Rights
Act of 1964 was with "the plight of the Negro in our economy." 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey). Before 1964, blacks were largely relegated to"unskilled and semi-skilled jobs." Ibid. (remarks of Sen.
Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 73797380 (remarks of Sen. Kennedy). Because of automation thenumber of such jobs was rapidly decreasing. See id., at 6548
(remarks of Sen. Humphrey); id., at 7204 (remarks of Sen.
Clark). As a consequence, "the relative position of the Negro
worker [was] steadily worsening. In 1947 the nonwhiteunemployment rate was only 64 percent higher than the whiterate; in 1962 it was 124 percent higher." Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks ofSen. Clark). Congress considered this a serious social problem. As Senator Clark told the Senate:"The rate of Negro unemployment has gone up consistently as compared with white unemployment for the
past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of theprincipal reasons why the bill should pass." Id., at 7220.
Congress feared that the goals of the Civil Rights Actthe integration of blacks into the mainstream of American
society-could not be achieved unless this trend were reversed.
And Congress recognized that that would not be possible

STEELWORKERS v. WEBER
193

Opinion of the Court

unless blacks were able to secure jobs "which have a future."Id., at 7204 (remarks of Sen. Clark). See also id., at 73797380 (remarks of Sen. Kennedy). As Senator Humphrey
explained to the Senate:"What good does it do a Negro to be able to eat in afine restaurant if he cannot afford to pay the bill? What
good does it do him to be accepted in a hotel that is too
expensive for his modest income? How can a Negro childbe motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where
he can use that education?" Id., at 6547.
"Without a job, one cannot afford public convenienceand accommodations. Income from employment may benecessary to further a man's education, or that of hischildren. If his children have no hope of getting a goodjob, what will motivate them to take advantage of educational opportunities?" Id., at 6552.
These remarks echoed President Kennedy's original message
to Congress upon the introduction of the Civil Rights Act
in 1963.
"There is little value in a Negro's obtaining the rightto be admitted to hotels and restaurants if he has no cashin his pocket and no job." 109 Cong. Rec. 11159.
Accordingly, it was clear to Congress that "rt]he crux of the
problem [was] to open employment opportunities for Negroesin occupations which have been traditionally closed to them,"
110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey), andit was to this problem that Title VII's prohibition against
racial discrimination in employment was primarily addressed.
It plainly appears from the House Report accompanying
the Civil Rights Act that Congress did not intend wholly toprohibit private and voluntary affirmative action efforts as
one method of solving this problem. The Report provides:"No bill can or should lay claim to eliminating all of

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

the causes and consequences of racial and other types of
discrimination against minorities. There is reason tobelieve, however, that national leadership provided by theenactment of Federal legislation dealing with the mosttroublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of
discrimination." H. R. Rep. No. 914, 88th Cong., 1stSess., pt. 1, p. 18 (1963). (Emphasis supplied.)
Given this legislative history, we cannot agree with respondent that Congress intended to prohibit the private sector
from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words
intended as a spur or catalyst to cause "employers and unions
to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last
vestiges of an unfortunate and ignominious page in thiscountry's history," Albemarle Paper Co. v. Moody, 422 U. S.
405, 418 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative
action efforts to hasten the elimination of such vestiges.4 It
would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve
the lot of those who had "been excluded from the American
dream for so long," 110 Cong. Rec. 6552 (1964) (remarks ofSen. Humphrey), constituted the first legislative prohibitionof all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
Our conclusion is further reinforced by examination of the
The problem that Congress addressed in 1964 remains with us. In
1962, the nonwhite unemployment rate was 124% higher than the whiterate. See 110 Cong. Rec. 6547 (1964) (remarks of Sen. Humphrey). In
1978, the black unemployment rate was 129% higher. See Monthly
Labor Review, U. S. Department of Labor, Bureau of Labor Statistics 78(Mar. 1979).

STEELWORKERS v. WEBER
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Opinion of the Court

language and legislative history of § 703 (j) of Title VII. 5
Opponents of Title VII raised two related arguments against
the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced workforces to grant preferential treatment to racial minorities inorder to integrate. Second, they argued that employers with
racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by theAct. See 110 Cong. Rec. 8618-8619 (1964) (remarks of Sen.
Sparkman). Had Congress meant to prohibit all raceconscious affirmative action, as respondent urges, it easily
could have answered both objections by providing that
Title VII would not require or permit racially preferential
integration efforts. But Congress did not choose such acourse. Rather, Congress added § 703 (j) which addresses
only the first objection. The section provides that nothing
contained in Title VII "shall be interpreted to require any
5 Section 703 (j)of Title VII, 78 Stat. 257, 42 U. S. C. § 2000e-2 (j),provides:"Nothing contained in this title shall be interpreted to require any
employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any
individual or to any group because of the race, color, religion, sex, or
national origin of such individual or group on account of an imbalance
which may exist with respect to the total number or percentage of personsof any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency orlabor organization, admitted to membership or classified by any labororganization, or admitted to, or employed in, any apprenticeship or othertraining program, in comparison with the total number or percentage of
persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any
community, State, section, or other area."
Section 703 (j) speaks to substantive liability under Title VII, but it
does not preclude courts from considering racial imbalance as evidence ofa Title VII violation. See Teamsters v. United States, 431 U. S.324, 339340, n. 20 (1977). Remedies for substantive violations are governed by§706 (g), 42 U. S. C. § 2000e-5 (g).

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

employer ... to grant preferential treatment ...to any group
because of the race . ..of such .. .group on account of" ade facto racial imbalance in the employer's work force. The
section does not state that "nothing in Title VII shall be interpreted to permit" voluntary affirmative efforts to correct racial
imbalances. The natural inference is that Congress chose notto forbid all voluntary race-conscious affirmative action.
The reasons for this choice are evident from the legislative
record. Title VII could not have been enacted into law without substantial support from legislators in both Houses who
traditionally resisted federal regulation of private business.
Those legislators demanded as a price for their support that"management prerogatives, and union freedoms . . . be left
undisturbed to the greatest extent possible." H. R. Rep.
No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703(j) was proposed by Senator Dirksen to allay any fears that
the Act might be interpreted in such a way as to upset thiscompromise. The section was designed to prevent § 703 of
Title VII from being interpreted in such a way as to lead toundue "Federal Government interference with private businesses because of some Federal employee's ideas about racialbalance or racial imbalance." 110 Cong. Rec. 14314 (1964)(remarks of Sen. Miller).' See also id., at 9881 (remarks of
6 Title VI of the Civil Rights Act of 1964, considered in University ofCalifornia Regents v. Bakke, 438 U. S. 265 (1978), contains no provisioncomparable to § 703 (j). This is because Title VI was an exercise offederal power over a matter in which the Federal Government was alreadydirectly involved: the prohibitions against race-based conduct contained in
Title VI governed "program[s] or activit[ies] receiving Federal financial
assistance." 42 U. S. C. § 2000d. Congress was legislating to assure
federal funds would not be used in an improper manner. Title VII, by
contrast, was enacted pursuant to the commerce power to regulate purely
private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments. Title
VII and Title VI, therefore, cannot be read in pari materia. See 110
Cong. Rec. 8315 (1964) (remarks of Sen. Cooper). See also id., at 11615(remarks of Sen. Cooper).

STEELWORKERS v. WEBER
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Opinion of the Court

Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen.
Dirksen). Clearly, a prohibition against all voluntary, raceconscious, affirmative action efforts would disserve these ends.
Such a prohibition would augment the powers of the Federal
Government and diminish traditional management prerogatives while at the same time impeding attainment of the ultimate statutory goals. In view of this legislative history andin view of Congress' desire to avoid undue federal regulationof private businesses, use of the word "require" rather thanthe phrase "require or permit" in § 703 (j) fortifies the conclusion that Congress did not intend to limit traditional businessfreedom to such a degree as to prohibit all voluntary, raceconscious affirmative action
7 Respondent argues that our construction of § 703 conflicts with various remarks in the legislative record. See, e. g., 110 Cong. Rec. 7213
(1964) (Sens. Clark and Case); id., at 7218 (Sens. Clark and Case); id.,
at 6549 (Sen. Humphrey); id., at 8921 (Sen. Williams). We do not agree.
In Senator Humphrey's words, these comments were intended as assurancesthat Title VII would not allow establishment of systems "to maintain
racial balance in employment." Id., at 11848 (emphasis added). They
were not addressed to temporary, voluntary, affirmative action measures
undertaken to eliminate manifest racial imbalance in traditionally segregated job categories. Moreover, the comments referred to by respondent
all preceded the adoption of § 703 (j), 42 U. S. C. § 2000e-2 (j). After§ 703 (j) was adopted, congressional comments were all to the effect that
employers would not be required to institute preferential quotas to avoid
Title VII liability, see, e. g., 110 Cong. Rec. 12819 (1964) (remarks ofSen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876(remarks of Rep. Lindsay). There was no suggestion after the adoptionof § 703 (j) that wholly voluntary, race-conscious, affirmative action efforts
would in themselves constitute a violation of Title VII. On the contrary,as Representative MacGregor told the House shortly before the final voteon Title VII:
"Important as the scope and extent of this bill is, it is also vitally
important that all Americans understand what this bill does not cover.
"Your mail and mine, your contacts and mine with our constituents,
indicates a great degree of misunderstanding about this bill. People com-

OCTOBER TERM, 1978
Opinion of the Court

443 U. S.

We therefore hold that Title VII's prohibition in §§ 703 (a)and (d) against racial discrimination does not condemn allprivate, voluntary, race-conscious affirmative action plans.
III
We need not today define in detail the line of demarcation
between permissible and impermissible affirmative actionplans. It suffices to hold that the challenged Kaiser-USWA
affirmative action plan falls on the permissible side of theline. The purposes of the plan mirror those of the statute.
Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which havebeen traditionally closed to them." 110 Cong. Rec. 6548
(1964) (remarks of Sen. Humphrey). 8
At the same time, the plan does not unnecessarily trammel
the interests of the white employees. The plan does not require the discharge of white workers and their replacementwith new black hirees. Cf. McDonald v. Santa Fe Trail
Transp. Co., 427 U. S. 273 (1976). Nor does the plan create
an absolute bar to the advancement of white employees; halfof those trained in the program will be white. Moreover, theplan is a temporary measure; it is not intended to maintain
racial balance, but simply to eliminate a manifest racial
imbalance. Preferential selection of craft trainees at theGramercy plant will end as soon as the percentage of blackskilled craftworkers in the Gramercy plant approximates theplain about .. .preferential treatment or quotas in employment. Thereis a mistaken belief that Congress is legislating in these areas in this bill.
When we drafted this bill we excluded these issues largely because theproblems raised by these controversial questions are more properly handled at a governmental level closer to the American people and by communities and individuals themselves." 110 Cong. Rec. 15893 (1964).
8See n. 1, supra. This is not to suggest that the freedom of an employer to undertake race-conscious affirmative action efforts depends onwhether or not his effort is motivated by fear of liability under Title VII.

STEELWORKERS v. WEBER
193

BLACKMUN, J.,

concurring

percentage of blacks in the local labor force. See 415 F. Supp.,
at 763.
We conclude, therefore, that the adoption of the KaiserUSWA plan for the Gramercy plant falls within the area of
discretion left by Title VII to the private sector voluntarily
to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories. Accordingly, the judgment of the Court of Appeals
for the Fifth Circuit isReversed.
MR. JUSTICE POWELL and MR. JUSTICE STEVENS took no partin the consideration or decision of these cases.
MR. JUSTICE BLACKMUN, concurring.

While I share some of the misgivings expressed in MR. JUSTICE REHNQUIST'S dissent, post, p. 219, concerning the extent
to which the legislative history of Title VII clearly supports
the result the Court reaches today, I believe that additional

considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support theconclusion reached by the Court today, and I therefore join its
opinion as well as its judgment.
I
In his dissent from the decision of the United States Courtof Appeals for the Fifth Circuit, Judge Wisdom pointed outthat this litigation arises from a practical problem in the administration of Title VII. The broad prohibition against discrimination places the employer and the union on what he ac9 Our disposition makes unnecessary consideration of petitioners' argument that their plan was justified because they feared that black employees would bring suit under Title VII if they did not adopt an affirmative
action plan. Nor need we consider petitioners' contention that theiraffirmative action plan represented an attempt to comply with Exec.
Order No. 11246, 3 CFR 339 (1964-1965 Comp.).

OCTOBER TERM, 1978
BLACKMUN, J., concurring

443 U. S.

curately described as a "high tightrope without a net beneaththem." 563 F. 2d 216, 230. If Title VII is read literally, on
the one hand they face liability for past discrimination against
blacks, and on the other they face liability to whites for any
voluntary preferences adopted to mitigate the effects of priordiscrimination against blacks.
In this litigation, Kaiser denies prior discrimination but concedes that its past hiring practices may be subject to question.
Although the labor force in the Gramercy area was approximately 39% black, Kaiser's work force was less than 15%
black, and its craftwork force was less than 2% black. Kaiser
had made some effort to recruit black painters, carpenters,
insulators, and other craftsmen, but it continued to insist thatthose hired have five years' prior industrial experience, a requirement that arguably was not sufficiently job related tojustify under Title VII any discriminatory impact it may have
had. See Parsonv. Kaiser Aluminum & Chemical Corp., 575
F. 2d 1374, 1389 (CA5 1978), cert. denied sub nom. Steelworkers v. Parson,441 U. S. 968 (1979). The parties disputethe extent to which black craftsmen were available in the local
labor market. They agree, however, that after critical reviews
from the Office of Federal Contract Compliance, Kaiser andthe Steelworkers established the training program in question
here and modeled it along the lines of a Title VII consent
decree later entered for the steel industry. See United Statesv. Allegheny-Ludlum Industries, Inc., 517 F. 2d 826 (CA51975). Yet when they did this, respondent Weber sued, alleging that Title VII prohibited the program because it discriminated against him as a white person and it was not supported
by a prior judicial finding of discrimination against blacks.
Respondent Weber's reading of Title VII, endorsed by the
Court of Appeals, places voluntary compliance with Title VII
in profound jeopardy. The only way for the employer and theunion to keep their footing on the "tightrope" it creates would
be to eschew all forms of voluntary affirmative action. EvenSTEELWORKERS v. WEBER

193

BLACKMUN,J., concurring

a whisper of emphasis on minority recruiting would be forbidden. Because Congress intended to encourage private
efforts to come into compliance with Title VII, see Alexander
v. Gardner-DenverCo., 415 U. S. 36, 44 (1974), Judge Wisdom
concluded that employers and unions who had committed"arguable violations" of Title VII should be free to make reasonable responses without fear of liability to whites. 563
F. 2d, at 230. Preferential hiring along the lines of the Kaiser
program is a reasonable response for the employer, whether or
not a court, on these facts, could order the same step as a
remedy. The company is able to avoid identifying victims of
past discrimination, and so avoids claims for backpay thatwould inevitably follow a response limited to such victims. If
past victims should be benefited by the program, however, thecompany mitigates its liability to those persons. Also, to theextent that Title VII liability is predicated on the "disparate
effect" of an employer's past hiring practices, the program
makes it less likely that such an effect could be demonstrated.
Cf. County of Los Angeles v. Davis, 440 U. S. 625, 633-634(1979) (hiring could moot a past Title VII claim). And the
Court has recently held that work-force statistics resulting
from private affirmative action were probative of benign intent
in a "disparate treatment" case. Furnco ConstructionCorp. v.

Waters, 438 U. S. 567, 579-580 (1978).
The "arguable violation" theory has a number of advantages. It responds to a practical problem in the administration of Title VII not anticipated by Congress. It draws
predictability from the outline of present law and closely
effectuates the purpose of the Act. Both Kaiser and theUnited States urge its adoption here. Because I agree that itis the soundest way to approach this case, my preference
would be to resolve this litigation by applying it and holdingthat Kaiser's craft training program meets the requirementthat voluntary affirmative action be a reasonable response toan "arguable violation" of Title VII.

OCTOBER TERM, 1978
BLACKMUN, J., concurring

443 U. S.

IIThe Court, however, declines to consider the narrow "arguable violation" approach and adheres instead to an interpretation of Title VII that permits affirmative action by an employer whenever the job category in question is "traditionallysegregated." Ante, at 209, and n. 9. The sources cited suggest that the Court considers a job category to be "traditionally segregated" when there has been a societal history of purposeful exclusion of blacks from the job category, resulting ina persistent disparity between the proportion of blacks in thelabor force and the proportion of blacks among those who holdjobs within the category.*"Traditionally segregated job categories," where they exist,
sweep far more broadly than the class of "arguable violations"of Title VII. The Court's expansive approach is somewhat*The jobs in question here include those of carpenter, electrician, general repairman, insulator, machinist, and painter. App. 165. The sources
cited, ante, at 198 n. 1, establish, for example, tiat although 11.7% of theUnited States population in 1970 was black, the percentage of blacks
among the membership of carpenters' unions in 1972 was only 3.7%. For
painters, the percentage was 4.9, and for electricians, 2.6. U. S. Commission on Civil Rights, The Challenge Ahead: Equal Opportunity in Referral Unions 274, 281 (1976). Kaiser's Director of Equal Opportunity
Affairs testified that, as a result of discrimination in employment andtraining opportunity, blacks were underrepresented in skilled crafts "inevery industry in the United States, and in every area of the UnitedStates." App. 90. While the parties dispute the cause of the relative
underrepresentation of blacks in Kaiser's craftwork force, the Court ofAppeals indicated that it thought "the general lack of skills among available blacks" was responsible. 563 F. 2d 216, 224 n. 13. There can belittle doubt that any lack of skill has its roots in purposeful discriminationof the past, including segregated and inferior trade schools for blacks inLouisiana, U. S. Commission on Civil Rights, 50 States Report 209(1961); traditionally all-white craft unions in that State, including theelectrical workers and the plumbers, id., at 208; union nepotism, Asbestos
Workers v. Vogler, 407 F. 2d 1047 (CA5 1969); and segregated apprenticeship programs, F. Marshall & V. Briggs, The Negro and Apprenticeship27 (1967).

STEELWORKERS v. WEBER
193

BLACKMUN,J., concurring

disturbing for me because, as MR. JUSTICE REHNQUIST points
out, the Congress that passed Title VII probably thought it
was adopting a principle of nondiscrimination that would
apply to blacks and whites alike. While setting aside thatprinciple can be justified where necessary to advance statutory policy by encouraging reasonable responses as a form ofvoluntary compliance that mitigates "arguable violations,"
discarding the principle of nondiscrimination where no countervailing statutory policy exists appears to be at odds withthe bargain struck when Title VII was enacted.
A closer look at the problem, however, reveals that in eachof the principal ways in which the Court's "traditionally segregated job categories" approach expands on the "arguable violations" theory, still other considerations point in favor of thebroad standard adopted by the Court, and make it possible
for me to conclude that the Court's reading of the statute isan acceptable one.
A. The first point at which the Court departs from the"arguable violations" approach is that it measures an individual employer's capacity for affirmative action solely in termsof a statistical disparity. The individual employer need nothave engaged in discriminatory practices in the past. While,
under Title VII, a mere disparity may provide the basis for a
prima facie case against an employer, Dothard v. Rawlinson,
433 U. S. 321, 329-331 (1977), it would not conclusively prove a
violation of the Act. Teamsters v. UnitedStates, 431 U. S. 324,
339-340, n. 20 (1977); see § 703 (j), 42 U. S. C. § 2000e-2 (j).
As a practical matter, however, this difference may not bethat great. While the "arguable violation" standard is conceptually satisfying, in practice the emphasis would be on"arguable" rather than on "violation." The great difficultyin the District Court was that no one had any incentive toprove that Kaiser had violated the Act. Neither Kaiser nor
the Steelworkers wanted to establish a past violation, nor did
Weber. The blacks harmed had never sued and so had noestablished representative. The Equal Employment Oppor-

OCTOBER TERM, 1978
BLACKMUN,J., concurring

443 U. S.

tunity Commission declined to intervene, and cannot be expected to intervene in every case of this nature. To makethe "arguable violation" standard work, it would have to be
set low enough to permit the employer to prove it withoutobligating himself to pay a damages award. The inevitabletendency would be to avoid hairsplitting litigation by simply
concluding that a mere disparity between the racial composition of the employer's work force and the composition of thequalified local labor force would be an "arguable violation,"even though actual liability could not be established on thatbasis alone. See Note, 57 N. C. L. Rev. 695, 714-719 (1979).
B. The Court also departs from the "arguable violation"
approach by permitting an employer to redress discriminationthat lies wholly outside the bounds of Title VII. For example, Title VII provides no remedy for pre-Act discrimination,
Hazelwood School District v. United States, 433 U. S. 299,
309-310 (1977); yet the purposeful discrimination thatcreates a "traditionally segregated job category" may haveentirely predated the Act. More subtly, in assessing a prima
facie case of Title VII liability, the composition of the employer's work force is compared to the composition of the poolof workers who meet valid job qualifications. Hazelwood,
433 U. S., at 308 and n. 13; Teamsters v. United States, 431
U. S., at 339-340, and n. 20. When a "job category" is traditionally segregated, however, that pool will reflect the effects
of segregation, and the Court's approach goes further andpermits a comparison with the composition of the labor force
as a whole, in which minorities are more heavily represented.
Strong considerations of equity support an interpretationof Title VII that would permit private affirmative action toreach where Title VII itself does not. The bargain struck in
1964 with the passage of Title VII guaranteed equal opportunity for white and black alike, but where Title VII provides
no remedy for blacks, it should not be construed to foreclose
private affirmative action from supplying relief. It seems
unfair for respondent Weber to argue, as he does, that the

STEELWORKERS v. WEBER
193

BLACKMUN,J., concurring

asserted scarcity of black craftsmen in Louisiana, the productof historic discrimination, makes Kaiser's training programillegal because it ostensibly absolves Kaiser of all Title VII
liability. Brief for Respondents 60. Absent compelling evidence of legislative intent, I would not interpret Title VII
itself as a means of "locking in" the effects of segregation
for which Title VII provides no remedy. Such a construction,
as the Court points out, ante, at 204, would be "ironic," given
the broad remedial purposes of Title VII.
MR. JUSTICE REHNQUIST'S dissent, while it focuses more onwhat Title VII does not require than on what Title VII forbids, cites several passages that appear to express an intent to"lock in" minorities. In mining the legislative history anew,
however, the dissent, in my view, fails to take proper accountof our prior cases that have given that history a much more
limited reading than that adopted by the dissent. For example, in Griggs v. Duke Power Co., 401 U. S. 424, 434-436, andn. 11 (1971), the Court refused to give controlling weight tothe memorandum of Senators Clark and Case which the dissent now finds so persuasive. See post, at 239-241. And inquoting a statement from that memorandum that an employer
would not be "permitted . . . to prefer Negroes for futurevacancies," post, at 240, the dissent does not point out that the
Court's opinion in Teamsters v. United States, 431 U. S., at349-351, implies that that language is limited to the protection of established seniority systems. Here, seniority is not in
issue because the craft training program is new and does not
involve an abrogation of pre-existing seniority rights. In
short, the passages marshaled by the dissent are not so compelling as to merit the whip hand over the obvious equity ofpermitting employers to ameliorate the effects of past discrimination for which Title VII provides no direct relief.
III
I also think it significant that, while the Court's opinion
does not foreclose other forms of affirmative action, the Kaiser

OCTOBER TERM, 1978
BURGER, C.

J., dissenting

443 U. S.

program it approves is a moderate one. The opinion notesthat the program does not afford an absolute preference forblacks, and that it ends when the racial composition of Kaiser's craftwork force matches the racial composition of thelocal population. It thus operates as a temporary tool for
remedying past discrimination without attempting to "maintain" a previously achieved balance. See University of California Regents v. Bakke, 438 U. S. 265, 342 n. 17 (1978)(opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ.). Because the duration of the program is finite, it perhaps
will end even before the "stage of maturity when action along
this line is no longer necessary." Id., at 403 (opinion of
BLACKMUN, J.).

And if the Court has misperceived the polit-

ical will, it has the assurance that because the question is
statutory Congress may set a different course if it so chooses.
MR. CHIEF JUSTICE BURGER, dissenting.

The Court reaches a result I would be inclined to vote forwere I a Member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of thestatute and arrived at by means wholly incompatible withlong-established principles of separation of powers. Under
the guise of statutory "construction," the Court effectively
rewrites Title VII to achieve what it regards as a desirable
result. It "amends" the statute to do precisely what bothits sponsors and its opponents agreed the statute was notintended to do.
When Congress enacted Title VII after long study andsearching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case.
In § 703 (d) Congress provided:"It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or

STEELWORKERS v. WEBER

193

BURGER, C. J.,

dissenting

retraining, including on-the-job training programs to discriminate against any individual because of his race, color,religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U. S. C. § 2000e-2 (d).
Often we have difficulty interpreting statutes either becauseof imprecise drafting or because legislative compromises haveproduced genuine ambiguities. But here there is no lack ofclarity, no ambiguity. The quota embodied in the collectivebargaining agreement between Kaiser and the Steelworkers
unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training
programs. And, under the plain language of § 703 (d), thatis "an unlawful employment practice."
Oddly, the Court seizes upon the very clarity of the statutealmost as a justification for evading the unavoidable impact
of its language. The Court blandly tells us that Congress
could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute-at least
the congressional "purpose" as five Justices divine it today.
But how are judges supposed to ascertain the purpose of astatute except through the words Congress used and the legislative history of the statute's evolution? One need not evenresort to the legislative history to recognize what is apparent
from the face of Title VIT-that it is specious to suggest that
§ 703 (j) contains a negative pregnant that permits employers to do what §§ 703 (a) and (d) unambiguously and unequivocally forbid employers from doing. Moreover, as MR.
JUSTICE REHNQUIST'S opinion-which I join-conclusively
demonstrates, the legislative history makes equally clear thatthe supporters and opponents of Title VII reached an agreement about the statute's intended effect. That agreement,
expressed so clearly in the language of the statute that no one
should doubt its meaning, forecloses the reading which the
Court gives the statute today.

OCTOBER TERM, 1978
BURGER,

C. J., dissenting

443 U. S.

Arguably, Congress may not have gone far enough incorrecting the effects of past discrimination when it enacted
Title VII. The gross discrimination against minorities towhich the Court adverts--particularly against Negroes in thebuilding trades and craft unions-is one of the dark chaptersin the otherwise great history of the American labor movement. And, I do not question the importance of encouraging
voluntary compliance with the purposes and policies of Title
VII. But that statute was conceived and enacted to makediscrimination against any individual illegal, and I fail to see
how "voluntary compliance" with the no-discrimination principle that is the heart and soul of Title VII as currently written will be achieved by permitting employers to discriminate
against some individuals to give preferential treatment toothers.
Until today, I had thought the Court was of the unanimousview that "[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed" in Title VII. Griggs v. Duke Power Co., 401 U. S.
424, 431 (1971). Had Congress intended otherwise, it very
easily could have drafted language allowing what the Court
permits today. Far from doing so, Congress expressly prohibited in §§ 703 (a) and (d) the very discrimination against
Brian Weber which the Court today approves. If "affirmative
action" programs such as the one presented in this case are tobe permitted, it is for Congress, not this Court, to so direct.
It is often observed that hard cases make bad law. I suspect
there is some truth to that adage, for the "hard" cases always
tempt judges to exceed the limits of their authority, as the
Court does today by totally rewriting a crucial part of Title
VII to reach a "desirable" result. Cardozo no doubt had thistype of case in mind when he wrote:"The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knighterrant, roaming at will in pursuit of his own ideal of

STEELWORKERS v. WEBER
193

REHNQUIST, J., dissenting

beauty or of goodness. He is to draw his inspiration fromconsecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social
life.' Wide enough in all conscience is the field of discretion that remains." The Nature of the Judicial Process
141 (1921).
What Cardozo tells us is beware the "good result," achievedby judicially unauthorized or intellectually dishonest means on
the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger thatthe seeds of precedent sown by good men for the best of
motives will yield a rich harvest of unprincipled acts of others
also aiming at "good ends."
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE
joins, dissenting.
In a very 'real sense, the Court's opinion is ahead of its
time: it could more appropriately have been handed down five
years from now, in 1984, a year coinciding with the title ofa book from which the Court's opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his booka governmental official of Oceania, one of the three great
world powers, denouncing the current enemy, Eurasia, to an
assembled crowd:"It was almost impossible to listen to him without being
first convinced and then maddened.... The speech had
been proceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was
slipped into the speaker's hand. He unrolled and read it
without pausing in his speech. Nothing altered in his
voice or manner, or in the content of what he was saying,but suddenly the names were different. Without words

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

said, a wave of understanding rippled through the crowd.
Oceania was at war with Eastasia! ...
The banners andposters with which the square was decorated were all
wrong! ...
"[T]he speaker had switched from one line to the otheractually in mid-sentence, not only without a pause, but
without even breaking the syntax." G. Orwell, Nineteen
Eighty-Four 181-182 (1949).
Today's decision represents an equally dramatic and equallyunremarked switch in this Court's interpretation of Title VII.
The operative sections of Title VII prohibit racial discrimination in employment simpliciter. Taken in its normal
meaning, and as understood by all Members of Congress who
spoke to the issue during the legislative debates, see infra, at
231-251, this language prohibits a covered employer from considering race when making an employment decision, whether
the race be black or white. Several years ago, however, aUnited States District Court held that "the dismissal of white
employees charged with misappropriating company property
while not dismissing a similarly charged Negro employee does
not raise a claim upon which Title VII relief may be granted."
McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 278(1976). This Court unanimously reversed, concluding fromthe "uncontradicted legislative history" that "Title VII prohibits racial discrimination against the white petitioners inthis case upon the same standards as would be applicable
were they Negroes .... ." Id., at 280.
We have never wavered in our understanding that Title
VII "prohibits all racial discrimination in employment, without exception for any group of particular employees." Id., at283 (emphasis in original). In Griggs v. Duke Power Co.,
401 U. S. 424, 431 (1971), our first occasion to interpret
Title VII, a unanimous Court observed that "[d]iscriminatory
preference, for any group, minority or majority, is precisely
and only what Congress has proscribed." And in our most

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

recent discussion of the issue, we uttered words seemingly dispositive of this case: "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity
for each applicant regardless of race, without regard to whether
members of the applicant's race are already proportionately
represented in the work force." Furnco Construction Corp. v.
Waters, 438 U. S. 567, 579 (1978) (emphasis in original). 1
Today, however, the Court behaves much like the Orwellian
speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to
the Court if interpreted here as it was in our prior decisions.
Accordingly, without even a break in syntax, the Court rejects"a literal construction of § 703 (a)" in favor of newly discovered "legislative history," which leads it to a conclusion
directly contrary to that compelled by the "uncontradictedlegislative history" unearthed in McDonald and our otherprior decisions. Now we are told that the legislative historyof Title VII shows that employers are free to discriminate on
the basis of race: an employer may, in the Court's words,"trammel the interests of the white employees" in favor of
black employees in order to eliminate "racial imbalance."
Ante, at 208. Our earlier interpretations of Title VII, like thebanners and posters decorating the square in Oceania, were all
wrong.
As if this were not enough to make a reasonable observerquestion this Court's adherence to the oft-stated principle thatour duty is to construe rather than rewrite legislation, UnitedStates v. Rutherford, 442 U. S. 544, 555 (1979), the Court also
seizes upon § 703 (j) of Title VII as an independent, or atleast partially independent, basis for its holding. Totally
ignoring the wording of that section, which is obviously
addressed to those charged with the responsibility of inter-' Our statements in Griggs and Furnco Construction, patently inconsistent with today's holding, are not even mentioned, much less distinguished,by the Court.

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

preting the law rather than those who are subject to its
proscriptions, and totally ignoring the months of legislative
debates preceding the section's introduction and passage,
which demonstrate clearly that it was enacted to prevent
precisely what occurred in this case, the Court infers from§ 703 (j) that "Congress chose not to forbid all voluntaryrace-conscious affirmative action." Ante, at 206.
Thus, by a tour de force reminiscent not of jurists suchas Hale, Holmes, and Hughes, but of escape artists such as
Houdini, the Court eludes clear statutory language, "uncontradicted" legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider
race in making employment decisions. It may be that one ormore of the principal sponsors of Title VII would have preferred to see a provision allowing preferential treatment ofminorities written into the bill. Such a provision, however, would have to have been expressly or impliedly exceptedfrom Title VII's explicit prohibition on all racial discrimination in employment. There is no such exception in the Act.
And a reading of the legislative debates concerning Title
VII, in which proponents and opponents alike uniformly denounced discrimination in favor of, as well as discrimination
against, Negroes, demonstrates clearly that any legislator harboring an unspoken desire for such a provision could not
possibly have succeeded in enacting it into law.
I
Kaiser opened its Gramercy, La., plant in 1958. Because
the Gramercy facility had no apprenticeship or in-plant craft
training program, Kaiser hired as craftworkers only persons
with prior craft experience. Despite Kaiser's efforts to locate
and hire trained black craftsmen, few were available in theGramercy area, and as a consequence, Kaiser's craft positions
were manned almost exclusively by whites. In February
1974, under pressure from the Office of Federal Contract Compliance to increase minority representation in craft positions

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

at its various plants,2 and hoping to deter the filing of employment discrimination claims by minorities, Kaiser enteredinto a collective-bargaining agreement with the United Steelworkers of America (Steelworkers) which created a new onthe-job craft training program at 15 Kaiser facilities, including the Gramercy plant. The agreement required that noless than one minority applicant be admitted to the training
program for every nonminority applicant until the percentageof blacks in craft positions equaled the percentage of blacks
in the local work force.' Eligibility for the craft training pro2The Office of Federal Contract Compliance (OFCC), subsequently
renamed the Office of Federal Contract Compliance Programs (OFCCP),
is an arm of the Department of Labor responsible for ensuring complianceby Government contractors with the equal employment opportunity requirements established by Exec. Order No. 11246, 3 CFR 339 (1964-1965
Comp.), as amended by Exec. Order No. 11375, 3 CFR 684 (1966-1970
Comp.), and by Exec. Order No. 12086, 3 CFR 230 (1979).
Executive Order No. 11246, as amended, requires all applicants for federal
contracts to refrain from employment discrimination and to "take affirmative action to ensure that applicants are employed, and that employees aretreated during employment, without regard to their race, color, religion,
sex or national origin." § 202 (1), 3 CFR 685 (1966-1970 Comp.), notefollowing 42 U. S. C. § 2000e. The Executive Order empowers the Secretary of Labor to issue rules and regulations necessary and appropriate toachieve its purpose. He, in turn, has delegated most enforcement duties
to the OFCC. See 41 CFR § 60-20.1 et seq., § 60-2.24 (1978).
The affirmative action program mandated by 41 CFR § 60-2 (Revised
Order No. 4) for nonconstruction contractors requires a "utilization" study
to determine minority representation in the work force. Goals for hiringand promotion must be set to overcome any "underutilization" found toexist.
The OFCC employs the "power of the purse" to coerce acceptance of
its affirmative action plans. Indeed, in this action, "the district court foundthat the 1974 collective bargaining agreement reflected less of a desire on
Kaiser's part to train black craft workers than a self-interest in satisfying
the OFCC in order to retain lucrative government contracts." 563 F. 2d
216, 226 (CA5 1977).
- The pertinent portions of the collective-bargaining agreement provide:"It is further agreed that the Joint Committee will specifically review theminority representation in the existing Trade, Craft and Assigned Main-

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

grams was to be determined on the basis of plant seniority,with black and white applicants to be selected on the basisof their relative seniority within their racial group.
Brian Weber is white. He was hired at Kaiser's Gramercy
plant in 1968. In April 1974, Kaiser announced that it wasoffering a total of nine positions in three on-the-job training
programs for skilled craft jobs. Weber applied for all threeprograms, but was not selected. The successful candidatesfive black and four white applicants-were chosen in accordtenance classifications, in the plants set forth below, and, where necessary,
establish certain goals and time tables in order to achieve a desired
minority ratio:"[Gramercy Works listed, among others]"As apprentice and craft jobs are to be filled, the contractual selection
criteria shall be applied in reaching such goals; at a minimum, not lessthan one minority employee will enter for every non-minority employee
entering until the goal is reached unless at a particular time there areinsufficient available qualified minority candidates....
"The term 'minority' as used herein shall be as defined in EEOC Reporting Requirements." 415 F. Supp. 761, 763 (ED La. 1976).
The "Toint Committee" subsequently entered into a "Memorandum ofUnderstanding" establishing a goal of 39% as the percentage of blacks thatmust be represented in each "craft family" at Kaiser's Gramercy plant.
Id., at 764. The goal of 39% minority representation was based on thepercentage of minority workers available in the Gramercy area.
Contrary to the Court's assertion, it is not at all clear that Kaiser's
admission quota is a "temporary measure . . . not intended to main-

tain racial balance." Ante, at 208. Dennis E. English, industrial relations
superintendent at the Gramercy plant, testified at trial:"Once the goal is reached of 39 percent, or whatever the figure will bedown the road, I think it's subject to change, once the goal is reached ineach of the craft families, at that time, we will then revert to a ratio ofwhat that percentage is, if it remains at 39 percent and we attain 39
percent someday, we will then continue placing trainees in the program atthat percentage. The idea, again, being to have a minority representationin the plant that is equal to that representation in the community workforce population." App. 69.

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

ance with the 50% minority admission quota mandated underthe 1974 collective-bargaining agreement. Two of the suc4
cessful black applicants had less seniority than Weber.
Weber brought the instant class action in the United States
District Court for the Eastern District of Louisiana, alleging
that use of the 50% minority admission quota to fill vacancies
in Kaiser's craft training programs violated Title VII's prohibition on racial discrimination in employment. The District Court and the Court of Appeals for the Fifth Circuit
agreed, enjoining further use of race as a criterion in admitting
applicants to the craft training programs.
4 In addition to the April programs, the company offered three moretraining programs in 1974 with a total of four positions available. Two
white and two black employees were selected for the programs, which werefor "Air Conditioning Repairman" (one position), "Carpenter-Painter"(two positions), and "Insulator" (one position). Weber sought to bid forthe insulator trainee position, but he was not selected because that job
was reserved for the most senior qualified black employee. Id., at 46.
5 The class was defined to include the following employees:"All persons employed by Kaiser Aluminum & Chemical Corporation at
its Gramercy, Louisiana, works who are members of the United Steelworkers of America, AFL-CIO Local 5702, who are not members of aminority group, and who have applied for or were eligible to apply foron-the-job training programs since February 1, 1974." 415 F. Supp., at763.
6In upholding the District Court's injunction, the Court of Appeals
affirmed the District Court's finding that Kaiser had not been guilty ofany past discriminatory hiring or promotion at its Gramercy plant. The
court thus concluded that this finding removed the instant action from thisCourt's line of "remedy" decisions authorizing fictional seniority in orderto place proved victims of discrimination in as good a position as theywould have enjoyed absent the discriminatory hiring practices. See
Franks v. Bowman Transp. Co., 424 U. S. 747 (1976). "In the absenceof prior discrimination," the Court of Appeals observed, "a racial quota
loses its character as an equitable remedy and must be banned as an
unlawful racial preference prohibited by Title VII, §§ 703 (a) and (d).
Title VII outlaws preferences for any group, minority or majority, if basedon race or other impermissible classifications, but it does not outlaw
preferences favoring victims of discrimination." 563 F. 2d, at 224 (em-OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

IIWere Congress to act today specifically to prohibit the typeof racial discrimination suffered by Weber, it would be hardpressed to draft language better tailored to the task than thatfound in § 703 (d) of Title VII:
"It shall be an unlawful employment practice for any

employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or
retraining, including on-the-job training programs to discriminate against any individual because of his race, color,religion, sex, or national origin in admission to, or employment in, any program established to provide appren-ticeship or other training."§ 2000e-2 (d).

78 Stat. 256, 42 U. S. C.

phasis in original). Nor was the Court of Appeals moved by the claimthat Kaiser's discriminatory admission quota is justified to correct a lackof training of Negroes due to past societal discrimination: "Whatever othereffects societal discrimination may have, it has had-by the specific findingof the court below--no effect on the seniority of any party here." Id., at
226 (emphasis in original). Finally, the Court of Appeals rejected theargument that Kaiser's admission quota does not violate Title VII because
it is sanctioned, indeed compelled, by Exec. Order No. 11246 and regulations issued by the OFCC mandating affirmative action by all Government
contractors. See n. 2, supra. Citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952), the court concluded that "[i]f Executive
Order 11246 mandates a racial quota for admission to on-the-job training
by Kaiser, in the absence of any prior hiring or promotion discrimination,
the Executive Order must fall before this direct congressional prohibition[of § 703 (d)]." 563 F. 2d, at 227 (emphasis in original).
Judge Wisdom, in dissent, argued that "[i]f an affirmative action plan,
adopted in a collective bargaining agreement, is a reasonable remedy for
an arguable violation of Title VII, it should be upheld." Id., at 230. The
United States, in its brief before this Court, and MR. JUSTIcE BLAcKMUN,

ante, p. 209, largely adopt Judge Wisdom's theory, which apparently restson the conclusion that an employer is free to correct arguable discrimination against his black employees by adopting measures that he knows will
discriminate against his white employees.

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

Equally suited to the task would be § 703 (a) (2), which makes
it unlawful for an employer to classify his employees "in any
way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color,religion, sex, or national origin." 78 Stat. 255, 42 U. S. C.
§ 2000e-2 (a) (2).'Entirely consistent with these two express prohibitions is
the language of § 703 (j) of Title VII, which provides that the
Act is not to be interpreted "to require any employer ... togrant preferential treatment to any individual or to any group
because of the race ... of such individual or group" to correcta racial imbalance in the employer's work force. 42 U. S. C.
§ 2000e-2 (j).1
Seizing on the word "require," the Court
7Section 703 (a) (1) provides the third express prohibition in Title VII
of Kaiser's discriminatory admission quota:"It shall be an unlawful employment practice for an employer"(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual'srace, color, religion, sex, or national origin ...

."78 Stat. 255, 42 U. S. C.

§2000e-2 (a) (1).
8
The full text of §703 (j), 78 Stat. 257, 42 U. S. C. §2000e-2 (j),provides as follows:"Nothing contained in this title shall be interpreted to require any
employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin 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, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership orclassified by any labor organization, or admitted to, or employed in, any
apprenticeship or other training program, in comparison with the total
number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in theavailable work force in any community, State, section, or other area."

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

infers that Congress must have intended to "permit" this typeof racial discrimination. Not only is this reading of § 703 (j)outlandish in the light of the flat prohibitions of §§ 703 (a)and (d), but, as explained in Part III, it is also totally beliedby the Act's legislative history.
Quite simply, Kaiser's racially discriminatory admission
quota is flatly prohibited by the plain language of Title VII.
This normally dispositive fact,0 however, gives the Court only
momentary pause. An "interpretation" of the statute upholding Weber's claim would, according to the Court, "'bringabout an end completely at variance with the purpose of thestatute.'" Ante, at 202, quoting United States v. Public Utilities Comm'n, 345 U. S. 295, 315 (1953). To support thisconclusion, the Court calls upon the "spirit" of the Act, which
it divines from passages in Title VII's legislative history indicating that enactment of the statute was prompted by Congress' desire " 'to open employment opportunities for Negroesin occupations which [had] been traditionally closed to them.' "Ante, at 203, quoting 110 Cong. Rec. 6548 (1964) (remarks ofSen. Humphrey)." But the legislative history invoked by
9 "If the words are plain, they give meaning to the act, and it is neither
the duty nor the privilege of the courts to enter speculative fields in searchof a different meaning.
"... [Wihen words are free from doubt they must be taken as the
final expression of the legislative intent, and are not to be added to or
subtracted from by considerations drawn ...from any extraneous source."
Caminetti v. United States, 242 U. S. 470, 490 (1917).
10 In holding that Title VII cannot be interpreted to prohibit use of
Kaiser's racially discriminatory admission quota, the Court reasons that it
would be "ironic" if a law inspired by the history of racial discriminationin employment against blacks forbade employers from voluntarily discriminating against whites in favor of blacks. I see no irony in a lawthat prohibits all voluntary racial discrimination, even discrimination directed at whites in favor of blacks. The evil inherent in discrimination
against Negroes is that it is based on an immutable characteristic, utterly
irrelevant to employment decisions. The characteristic becomes no less

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

the Court to avoid the plain language of §§ 703 (a) and (d)simply misses the point. To be sure, the reality of employment discrimination against Negroes provided the primary
impetus for passage of Title VII. But this fact by no means
supports the proposition that Congress intended to leave employers free to discriminate against white persons.11 In mostimmutable and irrelevant, and discrimination based thereon becomes noless evil, simply because the person excluded is a member of one race
rather than another. Far from ironic, I find a prohibition on all preferential treatment based on race as elementary and fundamental as the principle that "two wrongs do not make a right."
11 The only shred of legislative history cited by the Court in support ofthe proposition that "Congress did not intend wholly to prohibit private
and voluntary affirmative action efforts," ante, at 203, is the following excerpt from the Judiciary Committee Report accompanying the civil rights
bill reported to the House:"No bill can or should lay claim to eliminating all of the causes andconsequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the mosttroublesome problems will create an atmosphere conducive to voluntary or
local resolution of other forms of discrimination." H. R. Rep. No. 914,
88th Cong., 1st Sess., pt. 1, p. 18 (1963) (hereinafter H. R. Rep.), quoted
ante, at 203-204.
The Court seizes on the italicized language to support its conclusion that
Congress did not intend to prohibit voluntary imposition of racially discriminatory employment quotas. The Court, however, stops too short inits reading of the House Report. The words immediately following thematerial excerpted by the Court are as follows:"It is, however, possible and necessary for the Congress to enact legislation which prohibits and provides the means of terminating the mostserious types of discrimination. This H. R. 7152, as amended, would
achieve in a number of related areas. It would reduce discriminatory
obstacles to the exercise of the right to vote and provide means of expediting the vindication of that right. It would make it possible to remove
the daily affront and humiliation involved in discriminatory denials ofaccess to facilities ostensibly open to the general public. It would guarantee that there will be no discrimination upon recipients of Federal
financial assistance. It would prohibit discrimination in employment, andOCTOBER TERM, 1978
REHNQUIST, J., dissenting

443 U. S.

cases, "[1] egislative history ... is more vague than the statutewe are called upon to interpret." United States v. Public
Utilities Comm'n, supra, at 320 (Jackson, J., concurring).
Here, however, the legislative history of Title VII is as clear
as the language of §§ 703 (a) and (d), and it irrefutably

demonstrates that Congress meant precisely what it said in§§ 703 (a) and (d)-that no racial discrimination in employment is permissible under Title VII, not even preferential
treatment of minorities to correct racial imbalance.
III
In undertaking to review the legislative history of Title VII,
I am mindful that the topic hardly makes for light reading,provide means to expedite termination of discrimination in public education. It would open additional avenues to deal with redress of denials
of equal protection of the laws on account of race, color, religion, or national origin by State or local authorities." H. R. Rep., pt. 1, p. 18(emphasis added).
When thus read in context, the meaning of the italicized language in
the Court's excerpt of the House Report becomes clear. By dealing with"the most serious types of discrimination," such as discrimination in voting,public accommodations, employment, etc., H. R. 7152 would hopefully
inspire "voluntary or local resolution of other forms of discrimination,"that is, forms other than discrimination in voting, public accommodations,employment, etc.
One can also infer from the House Report that the Judiciary Committee hoped that federal legislation would inspire voluntary eliminationof discrimination against minority groups other than those protectedunder the bill, perhaps the aged and handicapped to name just two. In
any event, the House Report does not support the Court's proposition
that Congress, by banning racial discrimination in employment, intended
to permit racial discrimination in employment.
Thus, examination of the House Judiciary Committee's report reveals
that the Court's interpretation of Title VII, far from being compelledby the Act's legislative history, is utterly without support in that legislative history. Indeed, as demonstrated in Part III, infra, the Court's interpretation of Title VII is totally refuted by the Act's legislative history.

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

but I am also fearful that nothing short of a thorough examination of the congressional debates will fully expose the magnitude of the Court's misinterpretation of Congress' intent.
A
Introduced on the floor of the House of Representatives onJune 20, 1963, the bill-H. R. 7152-that ultimately became
the Civil Rights Act of 1964 contained no compulsory provisions directed at private discrimination in employment. The
bill was promptly referred to the Committee on the Judiciary,
where it was amended to include Title VII. With two exceptions, the bill reported by the House Judiciary Committee
contained § 703 (a) and (d) as they were ultimately enacted.
Amendments subsequently adopted on the House floor added§ 703's prohibition against sex discrimination and § 703 (d)'s
coverage of "on-the-job training."
After noting that "[tihe purpose of [Title VIII is to eliminate . . .discrimination in employment based on race, color,religion, or national origin," the Judiciary Committee's Report
simply paraphrased the provisions of Title VII without elaboration. H. R. Rep., pt. 1, p. 26. In a separate Minority
Report, however, opponents of the measure on the Committee
advanced a line of attack which was reiterated throughout thedebates in both the House and Senate and which ultimately
led to passage of § 703 (j). Noting that the word "discrimination" was nowhere defined in H. R. 7152, the Minority
Report charged that the absence from Title VII of any reference to "racial imbalance" was a "public relations" ruse andthat "the administration intends to rely upon its own construction of 'discrimination' as including the lack of racialbalance .... ." H. R. Rep., pt. 1, pp. 67-68. To demonstrate
how the bill would operate in practice, the Minority Report
posited a number of hypothetical employment situations, concluding in each example that the employer "may be forced tohire according to race, to 'racially balance' those who work for232

OCTOBER TERM, 1978
REHNQUIST, J., dissenting

443 U. S.

him in every job classification or be in violation of Federallaw." Id., at 69 (emphasis in original). 2
When H. R. 7152 reached the House floor, the opening
speech in support of its passage was delivered by Representative Celler, Chairman of the House Judiciary Committee andthe Congressman responsible for introducing the legislation.
A portion of that speech responded to criticism "seriously mis12

One example has particular relevance to the instant litigation:"Under the power granted in this bill, if a carpenters' hiring hall, say, had
20 men awaiting call, the first 10 in seniority being white carpenters, theunion could be forced to pass them over in favor of carpenters beneaththem in seniority but of the stipulated race. And if the union roster did
not contain the names of the carpenters of the race needed to 'raciallybalance' the job, the union agent must, then, go into the street and recruit
members of the stipulated race in sufficient number to comply with Federal orders, else his local could be held in violation of Federal law." H. R.
Rep., pt. 1, p. 71.
From this and other examples, the Minority Report concluded: "Thatthis is, in fact, a not too subtle system of racism-in-reverse cannot be
successfully denied." Id., at 73.
Obviously responding to the Minority Report's charge that federal
agencies, particularly the Equal Employment Opportunity Commission
would equate "discrimination" with "racial imbalance," the Republicansponsors of the bill on the Judiciary Committee stated in a separate
Report:"It must also be stressed that the 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. . . . Internal affairs of employers and labor organizations mustnot be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certainthat the channels of employment are open to persons regardless of theirrace and that jobs in companies or membership in unions are strictly
filled on the basis of qualification." Id., pt. 2, p. 29.
The Republican supporters of the bill concluded their remarks on Title
VII by declaring that "[a]ll vestiges of inequality based solely on race
must be removed . . . ." Id., at 30.

STEELWORKERS v. WEBER
193

REHNQUIST, J.,dissenting

represent[ing] what the bill would do and grossly distort[ing]its effects":"[T]he charge has been made that the Equal Employment Opportunity Commission to be established by title
VII of the bill would have the power to prevent a business from employing and promoting the people it wished,
and that a 'Federal inspector' could then order the hiringand promotion only of employees of certain races or religious groups. This description of the bill is entirely
wrong ...
"Even [a] court could not order that any preference
be given to any particular race, religion or other group,
but would be limited to ordering an end of discrimination.
The statement that a Federal inspector could order theemployment and promotion only of members of a specificracial or religious group is therefore patently erroneous.
The Bill would do no more than prevent.., employers from discriminating aga2ist or in favor of workers
because of their race, religion, or national origin.
"It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing 'racial or religious imbalance' in employment byrequiring the hiring of certain people without regard totheir qualifications simply because they are of a given
race or religion. Only actual discrimination could be
stopped." 110 Cong. Rec. 1518 (1964) (emphasis added).
Representative Celler's construction of Title VII was repeatedby several other supporters during the House debate.' 3
1"Representative Lindsay had this to say:"This legislation . ..does not, as has been suggested heretofore both on
and off the floor, force acceptance of people in ... jobs ...because they
are Negro. It does not impose quotas or any special privileges of seniority

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

Thus, the battle lines were drawn early in the legislative
struggle over Title VII, with opponents of the measure charging that agencies of the Federal Government such as the Equal
Employment Opportunity Commission (EEOC), by interpreting the word "discrimination" to mean the existence of "racial
imbalance," would "require" employers to grant preferential
treatment to minorities, and supporters responding that the
EEOC would be granted no such power and that, indeed, Title
VII prohibits discrimination "in favor of workers because of
their race." Supporters of H. R. 7152 in the House ultimately
prevailed by a vote of 290 to 130,'" and the measure was sent
to the Senate to begin what became the longest debate in thatbody's history.
or acceptance. There is nothing whatever in this bill about racial balance
as appears so frequently in the minority report of the Committee.
"What the bill does do is prohibit discrimination because of race .
110 Cong. Rec. 1540 (1964).
Representative Minish added: "Under title VII, employment will be on
the basis of merit, not of race. This means that no quota system will be

set up, no one will be forced to hire incompetent help because of race orreligion, and no one will be given a vested right to demand employment
for a certain job." Id., at 1600. Representative Goodell, answering thecharge that Title VII would be interpreted "to requir[e] a racial balance,"
id., at 2557, responded: "There is nothing here as a matter of legislative
history that would require racial balancing ....

We are not talking abouta union having to balance its membership or an employer having tobalance the number of employees. There is no quota involved. It is amatter of an individual's rights having been violated, charges having
been brought, investigation carried out and conciliation having been attempted and then proof in court that there was discrimination and denialof rights on the basis of race or color." Id., at 2558. After H. R. 7152
had been passed and sent to the Senate, Republican supporters of thebill in the House prepared an interpretative memorandum making clearthat "title VII does not permit the ordering of racial quotas in businesses
or unions and does not permit interferences with seniority rights of employees or union members." Id., at 6566 (emphasis added).
14 Eleven Members did not vote.

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

B
The Senate debate was broken into three phases: the debate
on sending the bill to Committee, the general debate on thebill prior to invocation of cloture, and the debate following
cloture.
1
When debate on the motion to refer the bill to Committee
opened, opponents of Title VII in the Senate immediately
echoed the fears expressed by their counterparts in the House,
as is demonstrated by the following colloquy between Senators
Hill and Ervin:"Mr. ERVIN. I invite attention to ... Section [703(a)]"I ask the Senator from Alabama if the Commission
could not tell an employer that he had too few employees,that he had limited his employment, and enter an order,
under [Section 703 (a)], 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.
"Mr. HILL. The Senator is correct. That power iswritten into the bill. The employer could be forced tohire additional persons . . . ." 110 Cong. Rec. 4764
15(1964).
15Continuing with their exchange, Senators Hill and Ervin broached
the subject of racial balance:"Mr. ERVIN.

So if the Commissioner . . . should be joined by anothermember of the Commission in the finding that the employer had too higha percentage, in the Commission's judgment, of persons of the Caucasianrace working in his business, they could make the employer either hire, in
addition to his present employees, an extra number of Negro employees,
or compel him to fire employees of the Caucasian race in order to make aplace for Negro employees?
"Mr. HILL. The Senator is correct, although the employer might notOCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

Senator Humphrey, perhaps the primary moving force behind
H. R. 7152 in the Senate, was the first to state the proponents'
understanding of Title VII. Responding to a political advertisement charging that federal agencies were at liberty tointerpret the word "discrimination" in Title VII to require
racial balance, Senator Humphrey stated: "[T]he meaningof racial or religious discrimination is perfectly clear ...
[l]t means a distinction in treatment given to different individuals because of their different race, religion, or national
origin." Id., at 5423.1" Stressing that Title VII "does not
limit the employer's freedom to hire, fire, promote or demote
for any reasons-or no reasons-so long as his action is notneed the additional employees, and although they might bring his business
into bankruptcy." 110 Cong. Rec. 4764 (1964).
This view was reiterated by Senator Robertson:"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. Of course, this works the other way around where whites
would be fired." Id., at 5092.
Senator Humphrey interrupted Senator Robertson's discussion, responding: "The bill does not require that at all. If it did, I would vote against
it. . . . There is no percentage quota." Ibid.
16 This view was reiterated two days later in the "Bipartisan Civil Rights
Newsletter" distributed to the Senate on March 19 by supporters of
H. R. 7152:"3. Defining discrimination: Critics of the civil rights bill have charged
that the word 'discrimination' is left undefined in the bill and therefore
the door is open for interpretation of this term according to 'whim or
caprice.' . .
"There is no sound basis for uncertainty about the meaning of discrimination in the context of the civil rights bill. It means a distinction intreatment given to different individuals because of their different race,
religion, or national origin." Id., at 7477.

STEELWORKERS v. WEBER
193

REHINQUIST,J., dissenting

based on race," Senator Humphrey further stated that
"nothing in the bill would permit any official or court torequire any employer or labor union to give preferential
1
treatment to any minority group." Ibid."
After 17 days of debate, the Senate voted to take up the bill
directly, without referring it to a committee. Id., at 6455.
Consequently, there is no Committee Report in the Senate.

2
Formal debate on the merits of H. R. 7152 began on March

30, 1964.

Supporters of the bill in the Senate had madeelaborate preparations for this second round.

Senator Hum-phrey, the majority whip, and Senator Kuchel, the minority
whip, were selected as the bipartisan floor managers on theentire civil rights bill. Responsibility for explaining and defending each important title of the bill was placed on bipartisan "captains."

Senators Clark and Case were selected as the

bipartisan captains responsible for Title VII. Vaas, Title
VII: Legislative History, 7 B. C. Ind. & Com. L. Rev. 431,
444-445 (1966) (hereinafter Title VII: Legislative History).
In the opening speech of the formal Senate debate on thebill, Senator Humphrey addressed the main concern of Title
17 Earlier in the debate, Senator Humphrey had introduced a newspaper
article quoting the answers of a Justice Department "expert" to the "10most commonly expressed objections to [Title VIII." Insofar as is pertinent here, the article stated:"Objection: The law would empower Federal 'inspectors' to require
employers to hire by race. White people would be fired to make room
for Negroes. Seniority rights would be destroyed. ...
"Reply: The bill requires no such thing. The five-member Equal
Employment Opportunity Commission that would be created would haveno powers to order anything. ...
"'...The bill would not authorize anyone to order hiring or firing toachieve racial or religious balance. An employer will remain wholly free
to hire on the basis of his needs and of the job candidate's qualifications.
What is prohibited is the refusal to hire someone because of his race orreligion. Similarly, the law will have no effect on union seniority rights."
Id., at 5094.

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U.S.

VII's opponents, advising that not only does Title VII not
require use of racial quotas, it does not permit their use.
"The truth," stated the floor leader of the bill, "is that thistitle forbids discriminating against anyone on account of race.
This is the simple and complete truth about title VII." 110Cong. Rec. 6549 (1964). Senator Humphrey continued:"Contrary to the allegations of some opponents of thistitle, there is nothing in it that will give any power to theCommission 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.
"That bugaboo has been brought up a dozen times;
but it is nonexistent. In fact, the very opposite is true.
Title VII prohibits discrimination. In effect, it says that
race, religion and national origin are not to be used as
the basis for hiring and firing. Title VII is designed toencourage hiring on the basis of ability and qualifications,
not race or religion." Ibid. (emphasis added).
At the close of his speech, Senator Humphrey returned briefly
to the subject of employment quotas: "It is claimed that thebill would require racial quotas for all hiring, when in fact itprovides that race shall not be a basis for making personnel
decisions." Id., at 6553.
Senator Kuchel delivered the second major speech in support of H. R. 7152. In addressing the concerns of the opposition, he observed that "[n]othing could be further from thetruth" than the charge that "Federal inspectors" would be
empowered under Title VII to dictate racial balance and preferential advancement of minorities. Id., at 6563. Senator
Kuchel emphasized that seniority rights would in no way beaffected by Title VII: "Employers and labor organizations
could not discriminate in favor of or against a person becauseof his race, his religion, or his national origin. In such matters . . .the bill now before us .. . is color-blind."

6564 (emphasis added).

Id., atSTEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

A few days later the Senate's attention focused exclusively
on Title VII, as Senators Clark and Case rose to discuss thetitle of H. R. 7152 on which they shared floor "captain" responsibilities. In an interpretative memorandum submitted
jointly to the Senate, Senators Clark and Case took pains to
refute the opposition's charge that Title VII would result inpreferential treatment of minorities. Their words were clear
and unequivocal:"There is no requirement in title VII that an employer
maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a
violation of title VII because maintaining such a balance
would require an employer to hire or to refuse to hire on
the basis of race. It must be emphasized that discrimination is prohibited as to any individual." Id., at 7213.18
ISIn obvious reference to the charge that the word "discrimination" inTitle VII would be interpreted by federal agencies to mean the absence of
racial balance, the interpretative memorandum stated:"[Section 703] prohibits discrimination in employment because of race,color, religion, sex, or national origin. It has been suggested that theconcept of discrimination is vague. In fact it is clear and simple andhas no hidden meanings. To discriminate is to make a distinction, tomake a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [Section 703] arethose which are based on any five of the forbidden criteria: race, color,religion, sex, and national origin." Id., at 7213 (emphasis added).
Earlier in his speech, Senator Clark introduced a memorandum prepared at his request by the Justice Department with the purpose of
responding to criticisms of Title VII leveled by opponents of the measure,particularly Senator Hill. With regard to racial balance, the Justice Department stated:"Finally, it has been asserted that title VII would impose a requirement for 'racial balance.' This is incorrect. There is no provision . . .
in title VII . . .that requires or authorizes any Federal agency or Federal
court to require preferential treatment for any individual or any groupfor the purpose of achieving racial balance. . . . No employer is required to maintain any ratio of Negroes to whites .... On the contrary,OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U.S.

Of particular relevance to the instant litigation were their ob-

servations regarding seniority rights. As if directing theircomments at Brian Weber, the Senators said:"Title VII would have no effect on established seniority
rights. Its effect is prospective and not retrospective.
Thus, for example, if a business has been discriminatingin the past and as a result has an all-white working force,when the title comes into effect the employer's obligation
would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged-or indeed permitted-to fire whites in order to hire Negroes, or toprefer Negroes for future vacancies, or, once Negroes are

hired, to give them special seniority rights at the expenseof the white workers hired earlier." Ibid. (emphasis

added) ."any deliberate attempt to maintain a given balance would almost certainly run afoul of title VII because it would involve a failure or refusal
to hire some individual because of his race, color, religion, sex, or national
origin. What title VII seeks to accomplish, what the civil rights billseeks to accomplish is equal treatment for all." Id., at 7207.
19 A Justice Department memorandum earlier introduced by Senator
Clark, see n. 18, supra, expressed the same view regarding Title VII's
impact on seniority rights of employees:"Title VII would have no effect on seniority rights existing at the time ittakes effect. . . . This would be true even in the case where owing todiscrimination prior to the effective date of the title, white workers had
more seniority than Negroes ....

[A]ssuming that seniority rights werebuilt up over a period of time during which Negroes were not hired, theserights would not be set aside by the taking effect of title VII. Employers
and labor organizations would simply be under a duty not to discriminate
against Negroes because of their race." 110 Cong. Rec. 7207 (1964).
The interpretation of Title VII contained in the memoranda introduced
by Senator Clark totally refutes the Court's implied suggestion that
Title VII would prohibit an employer from discriminating on the basisof race in order to maintain a racial balance in his work force, but would
permit him to do so in order to achieve racial balance. See ante, at 208,and n. 7.
The maintain-achieve distinction is analytically indefensible in any event.

STEELWORKERS v. WEBER
193

REHNQUIST,241

J., dissenting

Thus, with virtual clairvoyance the Senate's leading supporters of Title VII anticipated precisely the circumstances ofthis case and advised their colleagues that the type of minority
preference employed by Kaiser would violate Title VII's ban
on racial discrimination. To further accentuate the point,
Senator Clark introduced another memorandum dealing with
common criticisms of the bill, including the charge that racial
quotas would be imposed under Title VII. The answer was
simple and to the point: "Quotas are themselves discriminatory." Id., at 7218.
Despite these clear statements from the bill's leading andmost knowledgeable proponents, the fears of the opponents
Apparently, the Court is saying that an employer is free to achieve a
racially balanced work force by discriminating against whites, but thatonce he has reached his goal, he is no longer free to discriminate in orderto maintain that racial balance. In other words, once Kaiser reaches its
goal of 39% minority representation in craft positions at the Gramercy
plant, it can no longer consider race in admitting employees into its on-thejob training programs, even if the programs become as "all-white" asthey were in April 1974.
Obviously, the Court is driven to this illogical position by the glaring
statement, quoted in text, of Senators Clark and Case that "any deliberateattempt to maintain a racial balance . . . would involve a violation of title
VII because maintaining such a balance would require an employer to hireor to refuse to hire on the basis of race." 110 Cong. Rec. 7213 (1964)(emphasis added). Achieving a certain racial balance, however, no lessthan maintaining such a balance, would require an employer to hire or torefuse to hire on the basis of race. Further, the Court's own conclusionthat Title VII's legislative history, coupled with the wording of § 703 (j),evinces a congressional intent to leave employers free to employ "private,
voluntary, race-conscious affirmative action plans," ante, at 208, is inconsistent with its maintain-achieve distinction. If Congress' primary purpose
in enacting Title VII was to open employment opportunities previously
closed to Negroes, it would seem to make little difference whether theemployer opening those opportunities was achieving or maintaining a certain racial balance in his work force. Likewise, if § 703 (j) evinces Congress' intent to permit imposition of race-conscious affirmative action plans,
it would seem to make little difference whether the plan was adopted toachieve or maintain the desired racial balance.

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

were not put to rest.

Senator Robertson reiterated the view

that

could

"discrimination"

be interpretedby afederalId., at 7418-7420." °Senators Smathers and Sparkman, while conceding that Title"bureaucrat" to require hiring quotas.

VII does not in so many words require the use of hiring
quotas, repeated the opposition's view that employers would

be coerced to grant preferential hiring treatment to minorities
by agencies of the Federal Government. 2

Senator Williams

was quick to respond:"Those opposed to H. R. 7152 should realize that to hirea Negro solely because he is a Negro is racial discrimination, just as much as a 'white only' employment policy.
Both forms of discrimination are prohibited by title VIIof this bill. The language of that title simply states thatrace is not a qualification for employment. . . .

Somepeople charge that H. R. 7152 favors the Negro, at theexpense of the white majority. But how can the language of equality favor one race or one religion overanother? Equality can have only one meaning, and thatmeaning is self-evident to reasonable men. Those who
say that equality means favoritism do violence to com-

mon sense."
20 SenatorId., at 8921.

Robertson's observations prompted Senator Humphrey tomake the following offer: "If the Senator can find in title VII . . . any
language which provides that an employer will have to hire on the basisof percentage or quota related to color ... I will start eating the pages one
after another, because it is not in there." 110 Cong. Rec. 7420 (1964).
21 Referring to the EEOC, Senator Smathers argued that Title VII"would make possible the creation of a Federal bureaucracy which would,
in the final analysis, cause a man to hire someone whom he did not wantto hire, not on the basis of ability, but on the basis of religion, color, or
creed . . . ." Id., at 8500. Senator Sparkman's comments were to thesame effect. See n. 23, infra. Several other opponents of Title VII
expressed similar views. See 110 Cong. Rec. 9034-9035 (1964) (remarksof Sens. Stennis and Tower); id., at 9943-9944 (remarks of Sens. Longand Talmadge); id., at 10513 (remarks of Sen. Robertson).

STEELWORKERS v. WEBER
193

REIHNQUIST,J., dissenting

Senator Williams concluded his remarks by noting that Title
VII's only purpose is "the elimination of racial and religious
discrimination in employment." Ibid.22 On May 25, Senator Humphrey again took the floor to defend the bill against"the well-financed drive by certain opponents to confuse andmislead the American people." Id., at 11846. Turning once
again to the issue of preferential treatment, Senator Humphrey remained faithful to the view that he had repeatedly
expressed:"The title does not provide that any preferential treatment in employment shall be given to Negroes or to any
other persons or groups. It does not provide that any
quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit
preferential treatment for any particular group, and any
person, whether or not a member of any minority group,
would be permitted to file a complaint of discriminatory
employment practices." Id., at 11848 (emphasis added).
While the debate in the Senate raged, a bipartisan coalition
under the leadership of Senators Dirksen, Mansfield, Humphrey, and Kuchel was working with House leaders and representatives of the Johnson administration on a number of
amendments to H. R. 7152 designed to enhance its prospectsof passage. The so-called "Dirksen-Mansfield" amendment
was introduced on May 26 by Senator Dirksen as a substitutefor the entire House-passed bill. The substitute bill, which
ultimately became law, left unchanged the basic prohibitory
language of §§ 703 (a) and (d), as well as the remedial provisions in § 706 (g). It added, however, several provisions defining and clarifying the scope of Title VII's substantive proSeveral other proponents of H. R. 7152 commented briefly on Title
VII, observing that it did not authorize the imposition of quotas to correct
racial imbalance. See id., at 9113 (remarks of Sen. Keating); id., at 98819882 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Carlson);id., at 11768 (remarks of Sen. McGovern).
22

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

hibitions. One of those clarifying amendments, § 703 (j), wasspecifically directed at the opposition's concerns regarding
racial balancing and preferential treatment of minorities, providing in pertinent part: "Nothing contained in [Title VII]
shall be interpreted to require any employer . . . to grant

preferential treatment to any individual or to any group because of the race . . . of such individual or group on accountof" a racial imbalance in the employer's work force. 42
U. S. C. § 2000e-2 (j); quoted in full in n. 8, supra.
The Court draws from the language of § 703 (j) primary
support for its conclusion that Title VIi's blanket prohibition
on racial discrimination in employment does not prohibit preferential treatment of blacks to correct racial imbalance. Alleging that opponents of Title VII had argued (1) that the Act
would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to minorities and (2) that "employers with racially imbalanced workforces would grant preferential treatment to racial minorities,
even if not required to do so by the Act," ante, at 205, the Court
concludes that § 703 (j) is responsive only to the opponents'
first objection and that Congress therefore must have intended
to permit voluntary, private discrimination against whites inorder to correct racial imbalance.
Contrary to the Court's analysis, the language of § 703 (j)is precisely tailored to the objection voiced time and again byTitle Vii's opponents. Not once during the 83 days of debate
in the Senate did a speaker, proponent or opponent, suggestthat the bill would allow employers voluntarily to prefer racial
minorities over white persons. 23 In light of Title VII's flat
23 The Court cites the remarks of Senator Sparkman in support of its
suggestion that opponents had argued that employers would take it uponthemselves to balance their work forces by granting preferential treatment
to racial minorities. In fact, Senator Sparkman's comments accuratelyreflected the opposition's "party line." He argued that while the languageof Title VII does not expressly require imposition of racial quotas (no one,of course, had ever argued to the contrary), the law would be applied by

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

prohibition on discrimination "Against any individual . .
because of such individual's race," § 703 (a), 42 U. S. C.
§ 2000e-2 (a), such a contention would have been, in any
event, too preposterous to warrant response. Indeed, speakers

on both sides of the issue, as the legislative history makes
clear, recognized that Title VII would tolerate no voluntary
racial preference, whether in favor of blacks or whites.

The

complaint consistently voiced by the opponents was that Title
VII, particularly the word "discrimination," would be interpreted by federal agencies such as the EEOC to require thefederal agencies in such a way that "some kind of quota system will be
used." Id., at 8619. Senator Sparkman's view is reflected in the following exchange with Senator Stennis:"Mr. SPARKMAN. At any rate, when the Government agent came
to interview an employer who had 100 persons in his employ, the firstquestion would be, 'How many Negroes are you employing?' Suppose
the population of that area was 20 percent Negro. Immediately the agent
would say, 'You should have at least 20 Negroes in your employ, andthey should be distributed among your supervisory personnel and in all
the other categories'; and the agent would insist that that be done
immediately.
"Mr. STENNIS....
"The Senator from Alabama has made very clear his point about employment on the quota basis. Would not the same basis be applied topromotions?
"Mr. SPARKMAN. Certainly it would. As I have said, when theFederal agents came to check on the situation in a small business which
had 100 employees, and when the agents said to the employer, 'You musthire 20 Negroes, and some of them must be employed in supervisory capacities,' and so forth, and so on, the agent would also say, 'And you must
promote the Negroes, too, in order to distribute them evenly among
the various ranks of your employees.'" Id., at 8618 (emphasis added).
Later in his remarks, Senator Sparkman stated: "Certainly the suggestion
will be made to a small business that may have a small Government contract . . .that if it does not carry out the suggestion that has been made to
the company by an inspector, its Government contract will not be renewed." Ibid. Except for the size of the business, Senator Sparkman
has seen his prophecy fulfilled in this case.

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

correction of racial imbalance through the granting of preferential treatment to minorities. Verbal assurances that Title
VII would not require-indeed, would not permit-preferential treatment of blacks having failed, supporters of H. R. 7152
responded by proposing an amendment carefully worded tomeet, and put to rest, the opposition's charge. Indeed, unlike§§ 703 (a) and (d), which are by their terms directed atentities-e. g., employers, labor unions-whose actions are
restricted by Title VII's prohibitions, the language of § 703 (j)is specifically directed at entities-federal agencies andcourts-charged with the responsibility of interpreting Title
VII's provisions. 4
In light of the background and purpose of § 703 (j), theirony of invoking the section to justify the result in this caseis obvious. The Court's frequent references to the "voluntary" nature of Kaiser's racially discriminatory admission
quota bear no relationship to the facts of this case. Kaiser
and the Steelworkers acted under pressure from an agency of
the Federal Government, the Office of Federal Contract Compliance, which found that minorities were being "underutilized" at Kaiser's plants. See n. 2, supra. That is, Kaiser's
work force was racially imbalanced. Bowing to that pressure,
Kaiser instituted an admissions quota preferring blacks overwhites, thus confirming that the fears of Title VII's opponents
were well founded. Today, § 703 (j), adopted to allay thosefears, is invoked by the Court to uphold imposition of a racial
quota under the very circumstances that the section was
25
intended to prevent.
24 Compare § 703 (a), 42 U. S. C. § 2000e-2 (a) ("It shall be an unlawful employment practice for an employer . . ."), with § 703 (j), 42
U. S. C. § 2000e-2 (j) ("Nothing contained in this subchapter shall beinterpreted . . .").
25 In support of its reading of § 703 (j), the Court argues that "a prohibition against all voluntary, race-conscious, affirmative action efforts
would disserve" the important policy, expressed in the House Report on
H. R. 7152, that Title VII leave "management prerogatives, and union

STEELWORKERS v. WEBER
193

REHNQUIST, J., dissenting

Section 703 (j) apparently calmed the fears of most of the
opponents; after its introduction, complaints concerning racialbalance and preferential treatment died down considerably.2
Proponents of the bill, however, continued to reassure theopposition that its concerns were unfounded. In a lengthy
defense of the entire civil rights bill, Senator Muskie emphasized that the opposition's "torrent of words ... cannot obscure
this basic, simple truth: Every American citizen has the rightto equal treatment-not favored treatment, not complete
freedoms . . . undisturbed to the greatest extent possible."

H. R. Rep.,pt. 2, p. 29, quoted ante, at 206. The Court thus concludes that "Congress did not intend to limit traditional business freedom to such a degree
as to prohibit all voluntary, race-conscious affirmative action." Ante,at 207.
The sentences in the House Report immediately following the statement
quoted by the Court, however, belie the Court's conclusion:"Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race and thatjobs in companies or membership in unions are strictly filled on the basisof qualification." H. R. Rep., pt. 2, p. 29 (emphasis added).
Thus, the House Report invoked by the Court is perfectly consistent withthe countless observations elsewhere in Title VII's voluminous legislative
history that employers are free to make employment decisions without
governmental interference, so long as those decisions are made without
regard to race. The whole purpose of Title VII was to deprive employersof their "traditional business freedom" to discriminate on the basis ofrace. In this case, the "channels of employment" at Kaiser were hardly"open" to Brian Weber.
26 Some of the opponents still were not satisfied.
For example, Senator
Ervin of North Carolina continued to maintain that Title VII "would give
the Federal Government the power to go into any business or industry
in the United States . . . and tell the operator of that business whom hehad to hire." 110 Cong. Rec. 13077 (1964). Senators Russell and Byrd
remained of the view that pressures exerted by federal agencies would
compel employers "to give priority definitely and almost completely, inmost instances, to the members of the minority group." Id., at 13150(remarks of Sen. Russell).

OCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

individual equality-just equal treatment." 110 Cong. Rec.
12614 (1964). With particular reference to Title VII, Senator Muskie noted that the measure "seeks to afford to all
Americans equal opportunity in employment without discrimination. Not equal pay. Not 'racial balance.' Only equal
opportunity." Id., at 12617.27
Senator Saltonstall, Chairman of the Republican Conference of Senators participating in the drafting of the DirksenMansfield amendment, spoke at length on the substitute bill.
He advised the Senate that the Dirksen-Mansfield substitute,which included § 703 (j), "provides no preferential treatment
for any group of citizens. In fact, it specifically prohibits
such treatment." 110 Cong. Rec. 12691 (1964) (emphasis
added) .2
27 Senator Muskie also addressed the charge that federal agencies would

equate "discrimination," as that word is used in Title VII, with "racialbalance":"[S]ome of the opposition to this title has been based upon its alleged vagueness [and] its failure to define just what is meant by discrimination . . . . I submit that, on either count, the opposition is not welltaken. Discrimination in this bill means just what it means anywhere: a
distinction in treatment given to different individuals because of theirrace . . . [aind, as a practical matter, we all know what constitutes racial
discrimination." Id., at 12617.
Senator Muskie then reviewed the various provisions of § 703, concludingthat they "provide a clear and definitive indication of the type of practicewhich this title seeks to eliminate. Any serious doubts concerning [Title
VII's] application would, it seems to me, stem at least partially from thepredisposition of the person expressing such doubt." 110 Cong. Rec. 12618(1964).
28 The Court states that congressionalcomments regarding § 703 (j)"were all to the effect that employers would not be required to institutepreferential quotas to avoid Title VII liability." Ante, at 207 n.7 (emphasis in original). Senator Saltonstall's statement that Title VII of theDirksen-Mansfield substitute, which contained § 703 (j), "specifically prohibits" preferential treatment for any racial group disproves the Court's
observation. Further, in a major statement explaining the purpose of theDirksen-Mansfield substitute amendments, Senator Humphrey said of

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

On June 9, Senator Ervin offered an amendment thatwould entirely delete Title VII from the bill. In answer to
Senator Ervin's contention that Title VII "would make themembers of a particular race special favorites of the laws,"
id., at 13079, Senator Clark retorted:"The bill does not make anyone higher than anyoneelse. It establishes no quotas. It leaves an employer
free to select whomever he wishes to employ ...
"All this is subject to one qualification, and that qualification, is to state: 'In your activity as an employer . . .
you must not discriminate because of the color of a man's
skin. .'
"That is all this provision does ...
"It merely says, 'When you deal in interstate commerce,
you must not discriminate on the basis of race
Id., at 13080.
The Ervin amendment was defeated, and the Senate turned
its attention to an amendment proposed by Senator Cotton
to limit application of Title VII to employers of at least 100
employees. During the course of the Senate's deliberations on
the amendment, Senator Cotton had a revealing discussion
with Senator Curtis, also an opponent of Title VII. Bothmen expressed dismay that Title VII would prohibit preferential hiring of "members of a minority race in order toenhance their opportunity":"Mr. CURTIS. Is it not the opinion of the Senatorthat any individuals who provide jobs for a class of people who have perhaps not had sufficient opportunity forjobs should be commended rather than outlawed?
§ 703 (j): "This subsection does not represent any change in the substanceof the title. It does state clearly and accurately what we have maintained
all along about the bill's intent and meaning." 110 Cong. Rec. 12723(1964). What Senator Humphrey had "maintained all along about thebill's intent and meaning," was that it neither required nor permitted
imposition of preferential quotas to eliminate racial imbalances.

OCTOBER TERM, 1978
REHNQUIST, J., dissenting"Mr. COTTON.

Indeed it is."443 U. S.

Id., at 13086.29

Thus, in the only exchange on the Senate floor raising the possibility that an employer might wish to reserve jobs for minorities in order to assist them in overcoming their employment
disadvantage, both speakers concluded that Title VII prohibits such, in the words of the Court, "voluntary, private,
race-conscious efforts to abolish traditional patterns of racial
29 The complete exchange between Senators Cotton and Curtis, insofar
as is pertinent here, is as follows:"Mr. COTTON....

"I would assume that anyone who will administer the laws in futureyears will not discriminate between the races. If I were a Negro, and bydint of education, training, and hard work I had amassed enough property
as a Negro so that I had a business of my own-and there are many ofthem in this country-and I felt that, having made a success of it myself,
I wanted to help people of my own race to step up as I had stepped up,
I think I should have the right to do so. I think I should have the rightto employ Negroes in my own establishment and put out a helping handto them if I so desired. I do not believe that anyone in Washington
should be permitted to come in and say, 'You cannot employ all Negroes.

You must have some Poles. You must have some Yankees.'"Mr. CURTIS....
"The Senator made reference to the fact that a member of a minority
race might become an employer and should have a right to employ members of his race in order to give them opportunity. Would not the samething follow, that a member of a majority race might wish to employ
almost entirely, or entirely, members of a minority race in order to enhance their opportunity? And is it not true that under title VII as
written, that would constitute discrimination?
"Mr. COTTON. It certainly would, if someone complained about it
and felt that he had been deprived of a job, and that it had been given

to a member of a minority race because of his race and not because ofsome other reason." Id., at 13086.
This colloquy refutes the Court's statement that "[t]here was no suggestion after the adoption of § 703 (j) that wholly voluntary, race-conscious,
affirmative action efforts would in themselves constitute a violation of
Title VII." Ante, at 207 n. 7.

STEELWORKERS v. WEBER

193

REHNQUIST,J., dissenting

segregation and hierarchy." Ante, at 204. Immediately after
this discussion, both Senator Dirksen and Senator Humphrey
took the floor in defense of the 25-employee limit containedin the Dirksen-Mansfield substitute bill, and neither Senatordisputed the conclusions of Senators Cotton and Curtis. The
Cotton amendment was defeated.
3
On June 10, the Senate, for the second time in its history,
imposed cloture on its Members. The limited debate that
followed centered on proposed amendments to the DirksenMansfield substitute. Of some 24 proposed amendments,
only 5 were adopted.
As the civil rights bill approached its final vote, several supporters rose to urge its passage. Senator Muskie adverted
briefly to the issue of preferential treatment: "It has been
said that the bill discriminates in favor of the Negro at the expense of the rest of us. It seeks to do nothing more than tolift the Negro from the status of inequality to one of equalityof treatment."
110 Cong. Rec. 14328 (1964) (emphasis
added). Senator Moss, in a speech delivered on the day thatthe civil rights bill was finally passed, had this to say about
quotas:"The bill does not accord to any citizen advantage or
preference-it does not fix quotas of employment or
school population-it does not force personal association.
What it does is to prohibit public officials and those who
invite the public generally to patronize their businesses
or to apply for employment, to utilize the offensive,
humiliating, and cruel practice of discrimination on thebasis of race. In short, the bill does not accord special
consideration; it establishes equality." Id., at 14484(emphasis added).
Later that day, June 19, the issue was put to a vote, and theDirksen-Mansfield substitute bill was passed.

OCTOBER TERM, 1978
RXHNQUIST,J., dissenting

443 U. S.

CThe Act's return engagement in the House was brief. The
House Committee on Rules reported the Senate version without amendments on June 30, 1964. By a vote of 289 to 126,
the House adopted H. Res. 789, thus agreeing to the Senate's
amendments of H. R. 7152.30 Later that same day, July 2,
the President signed the bill and the Civil Rights Act of 1964
became law.
IV
Reading the language of Title VII, as the Court purports
to do, "against the background of [its] legislative history...
and the historical context from which the Act arose," ante, at
201, one is led inescapably to the conclusion that Congress fully
understood what it was saying and meant precisely what it
said. Opponents of the civil rights bill did not argue that
employers would be permitted under Title VII voluntarily to
grant preferential treatment to minorities to correct racial
imbalance. The plain language of the statute too clearlyprohibited such racial discrimination to admit of any doubt.
They argued, tirelessly, that Title VII would be interpreted
by federal agencies and their agents to require unwilling employers to racially balance their work f6rces by granting preferential treatment to minorities. Supporters of H. R. 7152
30 Only three Congressmen spoke to the issue of racial quotas during theHouse's debate on the Senate amendments. Representative Lindsaystated: "[W]e wish to emphasize also that this bill does not require quotas,
racial balance, or any of the other things that the opponents have been
saying about it." 110 Cong. Rec. 15876 (1964). Representative McCulloch echoed this understanding, remarking that "[t]he bill does not
permit the Federal Government to require an employer or union to hireor accept for membership a quota of persons from any particular minority
group." Id., at 15893. The remarks of Representative MacGregor,
quoted by the Court, ante, at 207-208, n. 7, are singularly unhelpful. He
merely noted that by adding § 703 (j) to Title VII of the House bill, "[t]heSenate . . . spelled out [the House's] intentions more specifically." 110Cong. Rec. 15893 (1964).

STEELWORKERS v. WEBER
193

REHNQUIST,J., dissenting

responded, equally tirelessly, that the Act would not be sointerpreted because not only does it not require preferential
treatment of minorities, it also does not permit preferential
treatment of any race for any reason. It cannot be doubted
that the proponents of Title VII understood the meaning of
their words, for "[s]eldom has similar legislation been debated with greater consciousness of the need for 'legislative
history,' or with greater care in the making thereof, to guidethe courts in interpreting and applying the law." Title VII:
Legislative History, at 444.
To put an end to the dispute, supporters of the civil rights
bill drafted and introduced § 703 (j). Specifically addressedto the opposition's charge, § 703 (j) simply enjoins federal
agencies and courts from interpreting Title VII to require
an employer to prefer certain racial groups to correct imbalances in his work force. The section says nothing about
voluntary preferential treatment of minorities because such
racial discrimination is plainly proscribed by §§ 703 (a) and(d). Indeed, had Congress intended to except voluntary,
race-conscious preferential treatment from the blanket prohibition of racial discrimination in §§ 703 (a) and (d), it
surely could have drafted language better suited to the task
than § 703 (j). It knew how. Section 703 (i) provides:"Nothing contained in [Title VIII shall apply to any
business or enterprise on or near an Indian reservation
with respect to any publicly announced employment
practice of such business or enterprise under which apreferential treatment is given to any individual because
he is an Indian living on or near a reservation." 78 Stat.
257, 42 U. S. C. § 2000e-2 (i).
V
Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent of Congress. To divine that intent, we traditionally look first to theOCTOBER TERM, 1978
REHNQUIST,J., dissenting

443 U. S.

words of the statute and, if they are unclear, then to thestatute's legislative history. Finding the desired result hopelessly foreclosed by these conventional sources, the Court
turns to a third source-the "spirit" of the Act. But close
examination of what the Court proffers as the spirit of the Act
reveals it as the spirit animating the present majority, not the88th Congress. For if the spirit of the Act eludes the cold
words of the statute itself, it rings out with unmistakableclarity in the words of the elected representatives who madethe Act law. It is equality. Senator Dirksen, I think, captured that spirit in a speech delivered on the floor of the
Senate just moments before the bill was passed:"... [T]oday we come to grips finally with a bill that
advances the enjoyment of living; but, more than that,it advances the equality of opportunity.
"I do not emphasize the word 'equality' standing byitself. It means equality of opportunity in the field of
education. It means equality of opportunity in the fieldof employment. It means equality of opportunity in thefield of participation in the affairs of government . ...
"That is it.
"Equality of opportunity, if we are going to talk about
conscience, is the mass conscience of mankind that speaksin every generation, and it will continue to speak longafter we are dead and gone." 110 Cong. Rec. 14510(1964).
There is perhaps no device more destructive to the notionof equality than the numerus clausus-the quota. Whether
described as "benign discrimination" or "affirmative action,"
the racial quota is nonetheless a creator of castes, a two-edged
sword that must demean one in order to prefer another. In
passing Title VII, Congress outlawed all racial discrimination,
recognizing that no discrimination based on race is benign,that no action disadvantaging a person because of his color isaffirmative. With today's holding, the Court introduces into

STEELWORKERS v. WEBER
193

REHNQUIST, J.,

255

dissenting

Title VII a tolerance for the very evil that the law was intended to eradicate, without offering even a clue as to what
the limits on that tolerance may be. We are told simply that
Kaiser's racially discriminatory admission quota "falls on thepermissible side of the line." Ante, at 208. By going not
merely beyond, but directly against Title VII's language andlegislative history, the Court has sown the wind. Later courts
will face the impossible task of reaping the whirlwind.