Facts—In 1974 the United Steel Workers of America (USWA) and Kaiser Aluminum and Chemical Corporation (Kaiser) entered into a master collective bargaining agreement covering terms and conditions of employment. It included an affirmative action plan designed to eliminate racial imbalances in Kaiser’s then almost exclusively white craftwork forces by reserving for black employees 50 percent of the openings in in-plant craft-training programs until the percentage of black craft workers equaled the percentage of blacks in the local labor force. Craft trainees was selected on the basis of seniority. At the Kaiser plant in Gramercy, Louisiana, a black was selected with less seniority than several white production workers whose bids were rejected. Thereafter, Brian Weber, a white man, instituted a class action in the U.S. District Court alleging that the manner of filling craft trainee positions discriminated against him in violation of Title VII of the Civil Rights Act of 1964.

Question—Does Title VII prohibit all private, voluntary race-conscious affirmative action plans?

Decision—No.

Reasons—J. Brennan (5–2). “Given . . . 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 . . . in view of Congress’s desire to avoid undue federal regulation of private businesses, use of the word ‘require’ rather than the phrase ‘require or permit’ (in Sec. 703 j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action. We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. 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 have been traditionally closed to them.’ 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 replacement with new black hires. Nor does the plan create an absolute bar to the advance of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. We conclude, therefore, that the adoption of the Kaiser-USWA 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.”

C.J. Burger and J. Rehnquist authored dissents claiming that this opinion contradicted clear congressional language designed to prohibit racial preferences. Rehnquist said that the decision was a “tour de force reminiscent not of jurists such as Hale, Holmes and Hughes, but of escape artists such as Houdini.”