(concurring):
Because Judge Smith’s opinion accurately tracks the law of this circuit as it now stands, I concur in the result we are required to reach. However, I believe it appropriate to set forth the following views.
Judge Smith correctly describes the holding of Kirkland v. New York State Dep’t of Correction Servs., 520 F.2d 420 (2d Cir. 1975), as allowing temporary quotas as a remedial measure only when there has been a “clear-cut pattern of long-continued and egregious racial discrimination,” 520 F.2d at 427, and the reverse discrimination is not concentrated on a relatively small, identifiable group. Appellees in Kirkland sought rehearing en banc, which was denied with three active judges dissenting and expressing the view that Kirkland conflicted with prior decisions of this court. At 5, 10 (2d Cir. 1975). Nevertheless, in Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976), the majority, Judge Oakes dissenting, relied upon Kirkland in setting aside a quota.
Since the issue of the legality of quotas is bound to recur and the court seems badly divided, and since Judge Smith has set forth his views on that issue, it may be useful for me to discuss it briefly. In Patterson v. Newspaper & Mail Deliverers Union of N.Y. & Vicinity, 514 F.2d 767, 775 (2d Cir. 1975) (concurring opinion), I expressed doubts regarding the legality of racial quotas. Although the opinion in Kirkland cites that concurrence with approval, 520 F.2d at 427, n. 22, it nevertheless seems to me— even at the risk of appearing ungracious— that the test laid down in Kirkland is itself open to question. The dissenting opinion of Judge Hays in Rios v. Steamfitters Local 638, 501 F.2d 622, 634 (2d Cir. 1974), strongly disapproved of racial quotas, relying on the legislative intention expressed in section 703(j) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(j). The opinion in Kirkland also cites Judge Hays’s dissent with approval, 520 F.2d at 427, n. 22, but allows the continued use of racial quotas, albeit under sharply limited circumstances; the opinion does not discuss the effect of section 703(j), probably because the parties ignored it. I respectfully suggest that the effect of that section, which is reproduced in the margin, cannot be ignored.1
*834Since we disapprove the racial quota here, it is not now necessary for me to explore the issue at greater length. I emphasize, however, that the disapproval of racial quotas expressed in section 703(j) does not prevent the granting of broad relief to effectuate Title VII’s purpose of correcting racial injustice. Focusing on individuals rather than on groups in granting relief, as by providing an immediate remedy to identifiable plaintiffs who were themselves discriminatorily denied jobs, can accomplish much without resort to quotas. Cf. Acha v. Beame, 531 F.2d 648 (2d Cir. 1976). The remedy would go to all who fell into this category and would be based, not upon a percentage or quota perhaps forbidden by section 703(j), but upon proof of individual discrimination. Indeed, Judge Smith’s opinion in this case utilizes this concept in approving a back-pay award to those who had applied to Local 28 and JAC and had been rejected for racial reasons. See also Acha v. Reame, supra. However, since Kirkland presently controls and since I agree with the result reached here, further discussion of the problem is not now necessary.
. Section 703(j) provides:
Nothing contained in this subchapter shall be interpreted to require any employer, em*834ployment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.