This Court has long recognized that in cases of employment discrimination it is often necessary to order affirmative relief in order to insure that the effects of the past discrimination are overcome. In Local 53 of the International Assoc. of Heat Frost Insulator Asbestos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047, an employment discrimination case granting broad affirmative relief, Judge Dyer stated: "In formulating relief from such practices the courts are not limited to simply parroting the Act's prohibitions but are permitted, if not required, to `order such affirmative action as may be appropriate.
See Bing v. Roadway Express, Inc., supra; Jones v. Lee Way Motor Freight, Inc., supra, 431 F.2d at 247-248; United States v. Dillon Supply Co., supra, 429 F.2d at 803-804; United States v. Hayes International Corp., supra; Quarles v. Philip Morris, Inc., supra. Others have concerned discriminatory union referral or seniority arrangements. See United States v. International Brotherhood of Electrical Workers Local 38, 6 Cir. 1970, 428 F.2d 144, cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248; United States v. Sheet Metal Workers Local 36, supra; Local 189, United Papermakers Paperworkers v. United States, supra; Local 53, International Association of Heat Frost Insulators Asbestos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047. None supports the proposition that employment statistics outweigh a defendant's evidence manifesting a "business necessity" for job assignment decisions. Moreover, no transfer and promotion system described in these cases is analogous to the Terminal's post-Act imposition of a "best qualified" hiring standard.
While it is true that the Act was intended to have prospective application only, relief may be granted to remedy present and continuing effects of past discrimination. Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969); United States v. Local 189, 282 F. Supp. 39, 44 (E.D.La. 1968), aff'd, 416 F.2d 980 (5 Cir. 1969); Quarles v. Philip Morris, Inc., 279 F. Supp. 505, 516 (E.D.Va. 1968). See, United States v. Hayes International Corporation, 415 F.2d 1038 (5 Cir. 1969) (Sept. 16, 1969).
Once it has been determined that blacks have been discriminatorily assigned to a particular department within a plant, departmental seniority cannot be utilized to freeze those black employees into a discriminatory caste. United States v. Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1973); United States v. Hayes International Corp., 456 F.2d 112, 117 (5th Cir. 1972); United States v. Jacksonville Terminal Co., 451 F.2d 418, 453 (5th Cir. 1971); Local 189, Papermakers Paperworkers v. United States, 416 F.2d 980, 988 (5th Cir. 1969); Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047, 1054 (5th Cir. 1969); United States v. Bethlehem Steel Corp., 446 F.2d 652, 660-661 (2d Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d 791, 795-796 (4th Cir. 1971), dismissed pursuant to Rule 60, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); United States v. Chesapeake Ohio Ry. Co., 471 F.2d 582, 593 (4th Cir. 1972). The district court granted full plant seniority through the first transfer from the labor department to another department.
The district court, finding some evidence of nepotism, said, "[I]t may well be that it does exist in the carpenter trade as it does in other areas and specifically the professions." The Fifth Circuit observed in Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047, 1054 (5th Cir. 1969): "While the nepotism requirement is applicable to black and white alike and is not on its face discriminatory, in a completely white union the present effect of its continued application is to forever deny to negroes and Mexican-Americans any real opportunity for membership."
400 F.2d at 33. See also Local 53 of Int'l Ass'n of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1055 (5th Cir. 1969). Appellant also contends that the Company's recruitment policy in February, 1967, and prior thereto, which depended primarily upon existing employees to refer new prospects for employment, operated to discriminate against blacks.
When the stated purposes of the Act and the broad affirmative relief authorization above are read in context with ยง 2000e-2(j), we believe that section cannot be construed as a ban on affirmative relief against continuation of effects of past discrimination resulting from present practices (neutral on their face) which have the practical effect of continuing past injustices. Any other interpretation would allow complete nullification of the stated purposes of the Civil Rights Act of 1964. This could result from adoption of devices such as a limitation of new apprentices to relatives of the all-white membership of a union, Local 53 of Int'l Ass'n of Heat Frost Insulators Asbestos Wkrs. v. Vogler, 407 F.2d 1047 (5th Cir. 1969), or limitation of membership to persons who had previous work experience under union contract, while such experience was racially limited to whites, Local 189, United Papermakers Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969), or administration of qualification examinations which had no objective standards and which produced unexplained discriminatory results. United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 416 F.2d 123 (8th Cir. 1969).
The order could order abolition of a rule requiring that a candidate for membership have his application countersigned by union members. Such a rule was ordered eliminated in Vogler v. McCarty, 294 F. Supp. 368, 371 (E.D.La. 1968), aff'd sub. nom., 407 F.2d 1047, 1054 (5th Cir. 1969), because it, the court felt, was applied in a discriminatory manner. Such an order would conflict with Section 87 of the Constitution of the International Brotherhood of Painters and Allied Trades (hereinafter the constitution).
In the preceding year it had referred 3487 persons for work through the hiring hall, only 2 of whom were Negroes. 428 F.2d at 151. Although the statistics in the case of Local 40 do not compel a conclusion that there is present active discrimination, it is now clear that quite neutral practices which have the effect of discriminating because of past history impose a duty on the District Courts to change them. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2 Cir. 1971); United States v. IBEW, Local No. 38, 428 F.2d 144 (6 Cir. 1970); United States v. Sheet Metal Workers, 416 F.2d 123 (8 Cir. 1969); Local 53 v. Vogler, 407 F.2d 1047 (5 Cir. 1969). Although the Civil Rights Act appears to provide that preferential treatment (by a quota system) is not to be granted on account of existing number or percentage imbalance based on population ratios, 42 U.S.C. ยง 2000e-2(j), the courts have determined that the statute merely prohibits a requirement of "preferential treatment" solely because of an imbalance in racial employment existing at the effective date of the Act.
Whether the plans were contractually agreed upon or not is irrelevant since private parties cannot agree to perform illegal acts. United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5 Cir. 1969) (Congress, under the Commerce Clause, may invalidate private agreements violative of the Civil Rights Act). The defendant argues that even if the original pension plan is void, the 1967 amended plan cures any illegality and that the exception therein merely recognizes rights accrued prior to the revision of the pension plan.