How to Read the Civil Rights Act

When Steelworkers v. Weber began its way through the federal courts in 1976, it was widely thought that the case would prove an even more important challenge to affirmative action programs than the famous Bakke case. Bakke tested affirmative action programs in universities and professional schools. But Weber tested the legality of programs giving blacks advantages in training programs for industry, programs that would benefit more blacks directly, and might be expected to have an earlier impact on economic racial inequality.

Blacks were seriously underrepresented in the work force of the Kaiser Aluminum Company’s plant in Gramercy, Louisiana, where Brian Weber, a white laborer, was employed. Blacks held hardly any of the plant’s craft or skilled jobs. Kaiser agreed with its union to establish a training program for craft jobs, to which current employees would be admitted in order of seniority, that is, in the order in which they had entered the plant—except that one black employee would be admitted for each white employee until the number of blacks in skilled jobs formed the same proportion of all skilled workers as blacks formed of the labor force in the Gramercy area.

Weber applied for the program but was insufficiently senior to obtain a “white” place, though he was more senior than applicants who received “black” places. He sued Kaiser, arguing that the program used a racial quota system and so was illegal under the Civil Rights Act of 1964, which provides in Section 703(a) of Title VII that it is unlawful for an employer:

1) to fail or refuse to hire or discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or,

2) to limit, segregate, or classify his employees or applicants for employment in any way which would 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.

Five justices—Justices Brennan, Marshall, White, Stewart, and Blackmun—held that Weber was wrong, and that this statute did not outlaw the Kaiser plan. They said that Congress did not intend to outlaw affirmative action plans of this sort, and that if a court interpreted the statute as Weber wished the statute’s “purpose” would be frustrated. Chief Justice Burger and Justice Rehnquist dissented. The two other justices—Justices Powell and Stevens—took no part in the case.

In the Bakke case Justice Powell had held that the admissions program of the Davis medical school was unconstitutional because it set aside a fixed number of places for minority applicants. The Kaiser training plan also set aside a fixed number of places for blacks, but it could not be said to be unconstitutional. The Equal Protection Clause of the Constitution requires states (and therefore state university professional schools) to treat people as equals, but imposes no such …

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