In 1974, the United Steelworkers and Kaiser Aluminum Chemical Corporation agreed to create a training program designed to remedy gross disparities between the representation of black workers in the local labor market and Kaiser's skilled craft trades in their plants. The new program would train both white and black workers for craft trades jobs. Selections would be based on seniority, but half of the training opportunities would be available to black workers until their representation in the higher paying and higher quality jobs rose to approximate their labor market representation. In and around Kaiser's Gramercy, Louisiana plant, the racial disparity when the training program launched was more than 20-to-1.
The Steelworkers and Kaiser agreed to this national collectively bargained solution only 10 years after Congress enacted Title VII of the Civil Rights Act, which banned racial discrimination in hiring. The meaning of that prohibition --- a radical reform in a deeply segregated and racist society and economy --- was still in the process of being settled. Unsatisfied that he was excluded from the new training program, a white worker named Brian Weber sought to use the new law to secure a slot. He sued the Steelworkers and Kaiser claiming that considering race in the training program's selection process violated Title VII's ban on discriminating against any employee "because of his race."
A majority of the Supreme Court disagreed in the landmark decision of United Steelworkers of America v. Weber. As the Court phrased it, "[t]he only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan." (Emphasis in original) The Court majority's answer was no. Title VII's goal was not colorblindness, but to redress, in Senator Hubert Humphrey's terms, "the plight of the Negro in our economy." Voluntary affirmative action --- private action by employers and unions --- served that purpose. So, the statute could not be read to prohibit it. In fact, the only provision of the statute (section 703(j)) to directly address affirmative action prohibited government from requiring it as a remedy for discrimination, but did not prohibit its voluntary use by private parties.
In Johnson v. Transportation Agency, Santa Clara County, the Supreme Court's majority reaffirmed Weber's interpretation of Title VII in the context of an effort to increase the representation of women in job classifications where they had been traditionally underrepresented. Johnson added some qualifications and conditions to the legal analysis, but the bottom line remained the same: Title VII permits voluntary affirmative action by employers and unions.
Does that conclusion survive the Supreme Court's recent decisions in Students for Fair Admissions (SFFA) v. University of North Carolina and SFFA v. Harvard College holding that considering race in college admissions decisions violates both the Constitution's Equal Protection Clause and Title VI of the Civil Rights Act? The correct answer is that voluntary affirmative action in employment should remain legal, but "should" and "will" are not synonyms.
The argument that voluntary workplace affirmative action survives SFFA is straightforward: SFFA was not an interpretation of Title VII. The Court's majority purported to interpret the Constitution's 14th Amendment and the Civil Rights Act's Title VI, which share a legal standard, according to Chief Justice Roberts's opinion for the majority. Roberts said nothing about Title VII. In fact, only Justice Gorsuch in his concurrence, joined by Justice Thomas, sought to wield the Court's anti-affirmative action result against Title VII. He plainly did not have the votes. Further, Gorsuch's reasoning was, at best, poor. There is a meaningful textual difference between Title VI and Title VII: section 703(j)'s prohibition on government requiring affirmative action as a remedy for discrimination. As the Weber majority pointed out, section 703(j) easily could have stated that voluntary affirmative action plans are not permitted, but Congress instead chose to permit them. If Justice Gorsuch (and his colleagues who also claim the mantle) were a sincere textualist, he would have to acknowledge that the Weber majority was right.
These arguments address the legal merits of the issue, but they should not be necessary. The Court should never reach the merits. If the Roberts Court could be trusted to respect the rule of law, the cleanest and simplest argument would be that the issue of whether Title VII prohibits voluntary affirmative action by employers and union has already been decidedd. Twice. Unlike in constitutional jurisprudence, which was the domain in which SFFA was decided, stare decisis (literally, stand by prior decisions) is supposed to be strongest when the Supreme Court has interpreted a statute. If the Court's statutory interpretation is wrong, fundamental separation of powers principles dictate that Congress should fix it, not the Court. Congress has had 46 years to "fix" Weber and Johnson. It has not, even though it has enacted substantial legislation otherwise amending Title VII.
Yet, the Roberts Court cannot be trusted to respect stare decisis. The most recent two terms of the Court have seen well-established, fundamental precedents fall to the policy agenda of an extreme right-wing majority unconcerned with maintaining respect for the law, the Supreme Court, themselves, or democracy. Bluntly, there is a meaningful risk the Supreme Court's majority will make a lawless decision that ignores Title precedent, history, and statutory text.
This is where we must look beyond "should" and "will" of the law to consider what likely will happen in corporate offices and at bargaining tables now that the Court has dropped a bomb on racial and gender justice. In a recent article for the New York Times, Noam Scheiber catalogued efforts by right-wing groups to pressure corporations to abandon their diversity, equity, and inclusion efforts. Lawsuits against corporate employers seeking to overturn Weber and Johnson are inevitable, particularly in light of the invitation extended by Justice Gorsuch's SFFA concurrence. Regardless of the merits of these lawsuits, lawyers representing corporations tend to give their clients conservative advice. They are likely to counsel away from practices that might invite litigation, or suggest methods of watering down affirmative action efforts to reduce risk. The danger is those methods also may reduce effectiveness.
This could be --- and I predict will be --- where the labor movement steps in. As one of the largest multi-racial enterprises in American society, and one of the leading voices for inclusion, social progress, and economic justice, and against discrimination and repression, unions can be expected to push back. They will bargain and advocate in favor of remedying longstanding, systemic racial injustices and disparities in American society. It is not a mere happenstance of history that the leading case on affirmative action in employment arose out of a collectively bargained plan. This is the labor movement's legacy prosecuted by labor lawyers who, to put it mildly, do not mimic their corporate counterparts' conservatism.
In sum, regardless of how the battle over Title VII and voluntary affirmative action in employment plays out, unions are an essential part of the solution to the dangers of a reactionary Supreme Court.
