1. State the facts that led Kaiser to contract with the union concerning the affirmative action training program.
2. What did the Court state was the question before it?
3. Do you believe that the Supreme Court applied Section 703(d) as written by Congress in this case?
4. Does the Court set guidelines for what are permissible and impermissible affirmative action plans?

[In 1974, petitioners United Steelworkers of America (USWA) and Kaiser Aluminum & Chemical Corporation (Kaiser) entered into a master collective bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate racial imbalances in Kaiser's craft workforces by reserving for black employees 50 percent of the openings in in-plant craft training programs until the percentage of black craft workers in a plant was commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at Kaiser's Gramercy, Louisiana, plant where, prior to 1974, 1.83 percent of the skilled craft workers were black and the local workforce was approximately 39 percent black. Pursuant to the national agreement, Kaiser, rather than continuing its practice of hiring trained outsiders, established a training program to train its production workers to fill craft openings. Kaiser selected trainees on the basis of seniority and race so that at least 50 percent of the trainees were black until the percentage of black skilled craft workers 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 workforce, with the most senior black trainee having less seniority than several white production workers whose bids for admission to the training program were rejected. Thereafter, respondent Brian Weber, one of those white production workers, instituted a class 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 other similarly situated white employees had been discriminated against in violation of the provisions of Section 703 (a) and (d) of Title VII, which makes it unlawful to "discriminate… because of… race" in hiring and in the selection of apprentices for training programs. The district court held that the affirmative action plan violated Title VII, entered judgment in favor of the plaintiff class, and granted 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. The Supreme Court granted certiorari.]
BRENNAN, J.…
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 the Act. The 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. That question was expressly left open in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination.

Respondent argues that Congress intended in Title VII to prohibit 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 the selection of apprentices for training programs. Since, the argument runs, McDonald v. Santa Fe Trail Transp. Co., supra, settled that Title VII forbids discrimination against whites as well 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 plan violates Title VII.

Respondent's argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is 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. It is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." 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 historical context from which the Act arose. Examination of those sources makes clear that an interpretation of the sections that forbade 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 the Title VII of the Civil Rights Act of 1964 was with "the plight of the Negro in our economy." 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 the principal reasons why the bill should pass.

… Accordingly, it was clear to Congress that "[t]he 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 in employment was primarily addressed.…

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 this country's history," Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges….