Last Friday, at the end of class, we were talking about the tension over the meaning of discrimination. Discrimination can mean simply differentiation. Does the statute protect members of the majority from differentiation too? Or is the statute designed only to protect against prejudice and invidious discrimination? If that’s so, maybe the statute is only applicable to discrimination against minorities by the majority.
The Clark-Case memorandum
“To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by section 704 are those which are based on any five of the forbidden criteria[ ].”
Does this memorandum suggest that affirmative action shall be outlawed according to § 703 (j)? Is there anything in the Clark-Case memo that pushes us towards “permit”? No, on the contrary, there is language that seems to go beyond “require”.
When was § 703 (j) added to the bill? It looks like Dirksen added it. He makes substitute amendment 656, which contains an explanation of changes in the bill. What tells us that § 703(j) is new? It says “new subsection (j)”.
We know from looking at a “side-by-side” that this subsection was new.
The Clark-Case memorandum is useful for thinking about what the Senate had in mind when it was thinking about the House version, but it’s not especially relevant to § 703 (j) since that subsection didn’t exist when Clark and Case wrote their memo.
The union and the company make an agreement with an affirmative action plan to train black workers to get into craft positions. An on-the-job training program gave workers the chance to learn craft skills. 50% of the training slots were reserved for black workers. Weber is a white production worker with more seniority than all the black workers who were selected. He sues under the Civil Rights Act.
What did Brennan say? The plain language of § 703 seems clear. Why does Brennan go beyond the plain language? What’s Brennan’s justification?
We might consider the language and decide the word “discriminate” isn’t so clear as you might think. Instead, Brennan grants the plain meaning, but finds that some things can be outside the “spirit” of the act. Can he do that? What’s the basis of saying that something is within the letter of the law but we can ignore plain meaning? How could you justify this?
What is the basis upon which you can disregard plain meaning? When would we feel comfortable with this? Maybe we can ignore plain meaning when it is incompatible with what we think the Constitution permits or requires.
In theory, if there’s no disagreement as to what the statute says, it will guide us unless what the statute says is unconstitutional. But who gets to decide what’s incompatible with the purpose? Should courts avoid results that are inconsistent with those that Congress apparently had in mind?
What if what the statute, literally read, is absurd? What if there’s a mistake in the language? What if there is an untenable consequence? Then we may depart from plain meaning.
What does § 703 (a) and (d) require? Did Congress really mean “you may not distinguish on the basis of race”?
What other goals is Brennan ascribing to Congress? He argues that Congress wanted to improve the economic condition of blacks in our economy. How is permitting discrimination opposed to that?
It’s a means-ends issue. Are there any other means-ends arguments being made by Brennan? Maybe he also wants to “preserve the bargain” that was struck in Congress.
What’s the connection between trying to open job opportunities for blacks including jobs that might otherwise be held by whites and Title VII? If the goal is to integrate blacks into the economy, then Brennan is willing to attribute a wider set of means to Congress than just race-blind employment practices. Brennan is willing to say that race-conscious hiring is okay if it tries to rectify past victimhood instead of perpetuating it.
What is it that businesses can do on their own? What does it mean to say that businesses can do this on their own? What is Brennan talking about when he talks about “traditional business freedom”? Well, this is a statute that is being imposed on what the “state of the law” before it came into force, including the common law.
Brennan says that this is an “employment at will” world. Employees can be hired and fired for any reason except when a statute says they can’t do it.
Brennan is trying to argue that no matter what Rehnquist says, Brennan’s opinion is more compatible with preserving business freedom.
But isn’t there a tension here? Brennan disregards literal meaning to some extent. But what does he do when he goes and analyzes § 703 (j)?
It would have been very easy if Congress had meant the statute to be broader than it appears. That’s a plain meaning argument. They enacted one word, not two words. Brennan says that it also preserves business freedom. But he anchors part of his analysis in the plain language of § 703 (j). So he’s inconsistent, and he may appear to be result-oriented.
Is it appropriate for the Court to ask whether Congress would have accepted a certain amendment if it had been offered? It may be that we’re trying to discover was Congress had in mind.
Consider Rehnquist’s opinion. He focuses on purpose too. He focuses on the act as a “bargain” or “deal” to be narrowly construed. One point that Brennan has scored off Rehnquist is that Rehnquist’s analysis would displace more common law than Brennan’s version. Rehnquist would forbid more conduct that was acceptable at common law. On the issue of displacing managerial prerogative, Rehnquist goes further than Brennan.
Rehnquist seems confident that he had smoking guns that suggest Congress meant to ban just the sort of activity that Brennan is prepared to allow. But is Rehnquist’s reliance on legislative history persuasive?
What about the speech by Celler? People aren’t making set speeches for no reason. Rather, they are responding to criticism.
According to Humphrey and Celler the bill won’t force employers to do stuff. Senators Robertson and Williams talk back and forth. The discussion is: “Are you going to promote someone solely because they are black?” That’s not necessarily what’s going on in Weber. Or maybe it’s contestable. Rehnquist thinks he has smoking guns.
But the counterargument is that everything that is being said is an effort by supporters of the bill to counter attacks by Southern legislators that “Big Brother” is going to “make you do things”.
In this case, we have an “arguable violation” theory. Many what you’re doing isn’t totally voluntary, but rather trying to stay “one step ahead of the law”. You do this by negotiating with the union. The union could get sued too.
Why is there silence in the Congressional Record? Why isn’t the word “permit” included?
You could argue that the legislators didn’t fully contemplate the current effects of past discrimination. Part of what’s going on is that Brennan and Rehnquist are taking an “originalist” approach: what did the Congress of 1964 have in mind?
Notice that affirmative action didn’t exist in 1964. So why would Congress have thought about it in 1964?
The key phrase is: “additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress”. How is this different from originalism?