1. Is it clear to you why a court would be able to include in its remedies those who are not directly discriminated against by an employer? Explain.

2. If you were the court and were still trying to get the union to comply with your order 18 years after the fact, what would you have done?

3. As an employer, how could you avoid such a result?

Issue: Whether a court could impose, a plan which would include benefits for minorities who may not have actually been discriminated against by the employer, upon a recalcitrant union, which defied years of court orders, to remedy its longstanding discriminatory policies.

Facts: The union and its apprenticeship committee were found guilty of discrimination against Hispanics and blacks and were ordered to remedy the violations. They were found numerous times to be in contempt of the court’s order and after 18 years the court eventually imposed fines and an affirmative action plan. The plan included benefits to persons not members of the union.

Decision: The Supreme Court held remedies to be appropriate under the circumstances. They held that section 706(g) does not prohibit a court from ordering, inappropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, they also held that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.

The availability of race-conscious affirmative relief under section 706(g) as a remedy for a violation of Title VII furthers the broad purposes underlying the statue. Congress enacted Title VII based on its determination that racial minorities were subject to pervasive and systematic discrimination in employment. It was clear to Congress that the crux of the problem was to open employment opportunities for Negroes in occupations which have been traditionally closed to them and it was to this problem that Title VII’s prohibition against racial discrimination was primarily addressed. Title VII was designed to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. In order to foster equal employment opportunities, Congress gave the lower courts broad power under section 706(g) to fashion the most complete relief possible to remedy past discrimination.

In most cases, the court needs to only order the employer or union to cease engaging in discriminatory practices, and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce the Title VII. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII’s prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring a recalcitrant employer or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce may be the only effective way to ensure the full enjoyment of the rights protected by Title VII.

Further, even when the employer or union formally ceases to engage in discrimination, informal mechanisms may obstruct equal employment opportunities. An employer’s reputation for discrimination may discourage minorities from seeking available employment. In these circumstances, affirmative race-conscious relief may be the only means available to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Affirmative action promptly operates to change the outward and visible signs of yesterday’s racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices.