The opinion of the court was delivered by: WHIPPLE
This is a motion by the Equal Employment Opportunity Commission (EEOC), joined by the International Brotherhood of Electrical Workers Union No. 52 (IBEW), for an order dismissing the complaint for failure to state a claim upon which relief can be granted. For the purposes of this motion, all well-pleaded material allegations of the complaint will be taken as true. Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Landy v. Federal Deposit Ins. Corp., 486 F.2d 139 (10th Cir. 1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1979, 40 L. Ed. 2d 312.
Plaintiff, a Caucasian job applicant, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, alleging employment discrimination. Jurisdiction is specifically conferred on this Court by 42 U.S.C. § 2000e-5. Equitable and other relief are also sought under 42 U.S.C. § 2000e-5(g).
Plaintiff alleges that the defendants have failed to employ him
"by using an illegal minority recruitment program which was involved in quota systems, proportional representation, and discrimination in reverse which is prohibited under executive order 11246-Title VII, Civil Rights Act of 1964."
The EEOC defends on the ground that the hiring system current [currently] utilized by the IBEW is the product of a consent decree entered by this Court in United States v. United Ass'n of Journeymen, 364 F. Supp. 808 (D.N.J. 1973). The decree provides, inter alia, goals for minority membership within the IBEW in order to eradicate the effects of past discrimination. (Section IV of the Decree). It is, apparently, the utilization of these goals which has precipitated the present action.
In the "Charge of Discrimination" form attached to the complaint, plaintiff charges
"that unjust quota systems were used in the hiring of 35 apprenticeship trainee positions of which 30 had to be minority applicants."
He further alleges that an illegal dual scoring standard was utilized in grading employment examinations. By Court decree in Civil No. 444-71, a quota had been established for future hiring. Of the next 35 persons hired, 30 would be members of minority groups and 5 would be non-minorities. Oral argument revealed that minority and white applicants took the same examination. The employer separated the minority group examinations from the rest and chose to employ those 30 minority applicants with the highest scores. The same system was used to select the 5 non-minority applicants. Plaintiff charges that since the examination was not validated pursuant to EEOC Guidelines, it is discriminatory per se and therefore invalid.
Title VII of the Civil Rights Act of 1964 makes it unlawful for any employer to discriminate as to hiring, firing, compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex or national origin. Plaintiff, as a white male, alleges that the preferential hiring of minorities has the effect of discriminating against him in violation of Title VII. The defendants respond that the hiring practice upon which plaintiff predicates his claim of discrimination is valid since it follows the mandate of Executive Order No. 11246, by which the United States has undertaken to establish affirmative action plans to ensure equal opportunity.
District courts, sitting as courts of equity, possess the wide authority to fashion relief which will eradicate the effects of past discrimination. Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir. 1972) (en banc). District court decrees that have established quota systems to eliminate such past discrimination have been consistently upheld.
See Bridgeport Guardians, Inc. v. Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Carter v. Gallagher, supra; Contractors Association of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971), cert. denied, 404 U.S. 854, 92 S. Ct. 98, 30 L. Ed. 2d 95; Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970).
The Third Circuit, in Contractors Association of Eastern Pa. v. Secretary of Labor, supra, considered such an affirmative action program and found no inherent conflict between the limitation on quota hiring in Title VII of the 1964 Civil Rights Act and the requirements of minority hiring goals for federal construction contracts. The Title VII limitation on quota hiring was held to apply only to the Civil Rights Act, and it did not prevent the President, acting through the Executive Order program, from requiring federal contractors to comply with minority hiring goals. The plan in question was found to be a valid exercise of executive action designed to remedy the perceived evil stemming from past exclusion of minority tradesmen from the labor pool available for the performance of construction projects in which the federal government had an interest. See Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J. 1970).
This Court, therefore, after careful reconsideration of the consent decree in question, finds that it was entered in conformity with existing law and is a valid ...