dissenting:
I respectfully dissent.
Today the Court grapples with the question whether, in a collective bargaining agreement, recognition of race for remedial purposes in employment practices is legal “affirmative action” or illegal “reverse discrimination”. The majority does not assert race may never be considered in employment practices or in other racially tense areas. Over ten years ago this Court declared, “The Constitution is both color blind *228and color conscious”.1 Where I differ from the majority is in my assessment of situations justifying reliance on race as a basis for decision-making. Here, the decision-making was by agreement between management and the union, presumably with the blessing of the legislative and executive branches of government but without benefit of the judicial branch. “Management and the government have been our [the unions’] partners in these endeavors [to eliminate discriminatory employment practices] and a great deal of credit must be given to them for the accomplishments of the past ten years.” Bredhoff, Affirmative Action in a Declining Economy: Seniority and the Incumbent Majority, in Federal Bar Association, An Equal Employment Opportunity Practice Guide, 118, 119 (1977). The third party beneficiaries of these joint endeavors and agreements are the disadvantaged minorities.
There are three independent legal justifications for these defendants’ actions. I must therefore dissent.
I.
The majority accurately and completely presents the facts of this case. A look at the facts from a different point of view, however, is needed to put the defendants’ actions in the proper perspective.
This action was brought by a white worker at the Kaiser Aluminum and Chemical Corporation [Kaiser] plant in Gramercy. Gramercy, a town with a population of about 2000, is in St. James Parish, Louisiana, about fifty miles northwest of New Orleans. The Gramercy plant was opened by Kaiser in 1958. Workers at that plant, as in other Kaiser plants, are represented by the United Steelworkers of America [the Union]. St. James and the adjacent parishes had a minority population of about 43 percent at the time of trial. The workforce in those parishes was estimated at 39 percent black.2 At the time of trial the Kaiser workforce at Gramercy was 14.8 percent black. This was a sharp increase from 1969, when, under federal government pressure, Kaiser began hiring at the gate on a one-to-one black to white ratio. At that time the Kaiser workforce was approximately 10 percent black.3 Before 1969 the plant had hired unskilled labor at the gate by choosing “the most qualified”. There was evidence at the trial from two Kaiser personnel officials that Kaiser had never discriminated by race at its Gramercy plant.
After the 1969 action, Kaiser was still concerned about the low percentage of black craftsmen at its plant. Prior to 1974 only five of the approximately 290 craftsmen at the plant were black. The company made strenuous but unsuccessful efforts to attract more black craftsmen. Pressure from the federal government continued, not just at the Gramercy plant but nationally. Kaiser and the Union discussed the problem in negotiations leading to their 1974 collective bargaining agreement.
Both sides were under pressure in 1974. The company feared federal action through the Office of Federal Contracts Compliance, *229the agency charged with enforcing Executive Order 11246. Both Kaiser and the Union feared private Title VII actions, by blacks on the basis of crafts employment. The contractual provision set out by the majority resulted. It was incorporated in the national collective bargaining agreement, governing fifteen Kaiser plants across the country.' Very similar provisions were included in the Union’s contracts with the other two major American aluminum producers, Reynolds Metals and ALCOA.4
A similar provision was also contained in the national steel producers settlement, approved by this Court in United States v. Allegheny-Ludlum Industries, Inc., 5 Cir. 1975, 517 F.2d 826. The government had investigated racial discrimination by the country’s nine major steel producers. The government, the producers, and this same union conducted intensive negotiations. After six months of negotiations, the government filed a pattern and practice suit against the Union and the nine producers. Simultaneously, two consent decrees were filed. The first decree, entered in April 1974, provided:
All permanent vacancies in apprenticeships and in entry level jobs in lines of promotion containing occupations which in fact lead to craft jobs, shall be filled on a plant-wide basis from among qualified bidding employees ... In order to meet the implementing ratio [50 percent], seniority factors shall be applied separately to each group for whom timetables are established and to all other employees.
United States v. Allegheny-Ludlum Industries, Inc., Consent Decree I, BNA FEP Manual, 431: 125,138-39 (1974). Although that decree had not been entered at the time of the agreement in question here, there was testimony that the Kaiser agreement was influenced by the Allegheny-Lud-lum negotiations.5 The Union was a party to both agreements.
II.
The district court rested its decision on two grounds. First, it held that Title VII prohibited completely any privately imposed “quotas”. Alternatively, it found this plan illegal because a court would not have imposed it as a remedy in the circumstances this case presents. The majority properly rejects the first groúnd. As Judge Gee points out, that position would completely contradict the emphasis Congress laid on voluntary conciliation under Title VII. See Albemarle Paper Co. v. Moody, 1975, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 45 L.Ed.2d 280; Alexander v. Gardner-Denver Co., 1974, 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147. The majority, however, accepted the district court’s second ground, and agreed that this plan would not have been imposed by a court.6 The Court accepted that conclusion largely on the strength of the district judge’s finding that the defendants had not engaged in discrimination in the past at Gramercy. I believe that the majority has judged the defendants’ actions by the wrong standard.7
*230The majority’s standard produces indirectly what the district court’s first ground established directly — an end to voluntary compliance with Title VIL The employer and the union are made to walk a high tightrope without a net beneath them. On one side lies the possibility of liability to minorities in private actions, federal pattern and practice suits, and sanctions under Executive Order 11246. On the other side is the threat of private suits by white employees and, potentially, federal action. If the privately imposed remedy is either excessive or inadequate, the defendants are liable. Their good faith in attempting to comply with the law will not save them from liability, including liability for back pay. See Albemarle Paper Co. v. Moody, 1975, 422 U.S. 405, 422-23, 95 S.Ct. 2362, 45 L.Ed.2d 280.
Divining the result a court would reach in any litigation is no small problem. In Title VII litigation it is particularly serious, in spite of the earnest efforts of courts, including this Court, to clarify the law. Different courts may apply the law in arguably proper distinct ways. Furthermore, decisions in these cases are fact-sensitive. An employer or a union must not only be sure of the law, but must be confident of what facts will be found.. Those problems afflict an employer with a single plant. Kaiser and the Union faced a more difficult situation. They were writing a national contract, covering 15 different plants. Each plant has its own area, its own history. Fifteen separate legal opinions would be required because, under the majority’s approach, each plant will be judged on its own facts. To complicate matters further, many companies, including Kaiser, operate in several federal circuits. If the interpretation of Title VII law varies among the circuits, a national agreement is even more difficult.
The majority’s standard will lead to less voluntary compliance with Title VII. Employers and unions would be liable unless they instituted exactly what a reviewing court felt should have been instituted. They could either bring declaratory judgment actions, or wait to be sued. Under either alternative, our dockets would be filled with more Title VII suits, the Congressional emphasis on voluntary conciliation would be frustrated, and the elimination of the blight of racial discrimination would be still further delayed.
In this case of first impression,8 we should not hold these defendants to so strict a standard. If an affirmative action plan, adopted in a collective bargaining agreement, is a reasonable remedy for an arguable violation of Title VII, it should be upheld. A zone of reasonableness, within which the employer and the union would be sheltered from liability, would encourage *231private settlements.9 If this standard were applied to the case before us, we should reverse.
In spite of the district court’s finding that the defendants had not discriminated against blacks at Gramercy, there were arguable violations. The district court made its finding on the basis of testimony from two Kaiser personnel officials. The defendants were never required to rebut a prima facie case, proved statistically, because the statistics were never analyzed by the district court.10 The reason for the lack of analysis is clear: no litigant wanted to see past discrimination found. The plaintiffs knew it would weaken their case. Kaiser and the Union could only admit past discrimination by strongly inviting private suits by blacks. Although the trial below was in no way collusive, the defendants could well have realized that a victory at the cost of admitting past discrimination would be a Pyrrhic victory at best. In the district court no one represented the separate interests of the minority employees of Kaiser, the only people potentially interested in showing past discrimination. It is not surprising, therefore, that no party fully analyzed the facts within the context of Title VII. Such an analysis would show three possible or probable violations.
First, Kaiser may have discriminated against blacks for unskilled jobs. The evidence showed that although 39 percent of the area workforce was black, only 14.8 percent of Kaiser’s employees in 1974 were black. That was an increase from around 10 percent in 1969. The testimony that Kaiser had hired “the best qualified” before 1969 left open the possibilities that Kaiser had determined qualifications through non-validated tests,11 or impermissibly subjective processes.12 The statistics here constituted a prima facie case of discrimination.13 The district court did not require and the defendants did not present any evidence in rebuttal. Such discrimination would be linked to this case because in the absence of that discrimination, more blacks could have entered a training program based solely on seniority.14
Second, the requirement that employees have prior experience in the crafts to enter the limited training program in effect before 1974 may have violated Title VII. Only two of 28 employees trained under that program were black. While there was evidence that each year of a worker’s experience saved the company money, no effort *232was made to present contrary evidence. The judge simply accepted the statement that prior experience was a business necessity validating the requirement in spite of possible differential effects on blacks and whites. The business necessity defense, however, is narrow. The fact that it may be cheaper or more convenient to use a criterion with divergent impact is not enough to justify its use. See Watkins v. Scott Paper Co., 5 Cir. 1976, 530 F.2d 1159, 1168, 1179-83, cert. denied, 1976, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139; United States v. Bethlehem Steel Corp., 2 Cir. 1971, 446. F.2d 652, 662-65; Local 189, United Papermakers and Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 989-91 cert. denied, 1970,397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. See also Jones v. Lee Way Motor Freight, 10 Cir. 1970, 431 F.2d 245, cert. denied, 1971,401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237; Pettway v. American Cast Iron Pipe, 5 Cir. 1974, 494 F.2d 211; Buckner v. Goodyear Tire and Rubber, 1972, N.D.Ala., 339 F.Supp. 1108, aff’d without opinion, 5 Cir. 1973, 476 F.2d 1287 (three cases where training programs were tested against the business necessity standard). Cf. E.E.O.C. v. New York Times Broadcasting Service, 6 Cir. 1976, 542 F.2d 356 (prior experience not a valid requirement when the previous employer prevented the discriminatees from acquiring experience).
The majority tries to avoid this contention by asserting that the program was “too limited in scope” to be characterized as an unlawful practice. The size of the program may be relevant to the weight to be given the statistics describing it, but the small impact of an action provides no immunity. See McDonald v. Sante Fe Trail Transportation Co., 1976, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (two people); Green v. McDonnell Douglas Corp., 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (one person). If past experience does not satisfy the business necessity requirement, and if more whites than blacks had past experience, then a serious question of Title VII liability is raised even if only one position is at stake.
Third, the requirement of any training for some craft jobs may be illegal. While this claim would be the most easily refuted by an employer, no refutation was even attempted. In light of the extremely narrow scope of the business necessity exception, some rebuttal would be necessary.
The district judge accepted Kaiser’s claims of nondiscrimination. It appears from the record that Kaiser did act in good faith. The company made admirable attempts to recruit black craftsmen, and responded strongly to the problem with its unskilled labor force in 1969. Good faith, however, is not a defense to Title VII. Although the three potential violations discussed above may not make the district court’s finding “clearly erroneous” in the sense contemplated by Rule 52(a), F.R. Civ.P., arguable violations clearly existed.
To immunize this plan the defendants should also be required to show that the plan is a reasonable remedy. The similar provisions required by courts in Title VII litigation demonstrate that this relief can be reasonable. See, e. g., Rios v. Enterprise Association Steamfitters Local 638, 2 Cir. 1974, 501 F.2d 622; United States v. Ironworkers Local 86, 9 Cir. 1971, 443 F.2d 544, cert. denied, 1971,404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367; Buckner v. Goodyear Tire and Rubber Co., 1972, N.D.Ala., 339 F.Supp. 1108, aff’d without opinion, 5 Cir., 476 F.2d 1287. Cf. Southern Illinois Builders Association v. Ogilvie, 7 Cir. 1972, 471 F.2d 680, upholding a similar program under the Executive Order and United States v. Allegheny-Ludlum Industries, Inc., 5 Cir. 1975, 517 F.2d 826, upholding a similar program as part of a consent decree. Three other factors add weight to that conclusion.
First, the plan was negotiated by the employer and the union. The privileges which federal law grants a union as the representative of the covered workers carry with them the duty to represent in good faith the interests of all the workers. See Steele v. Louisville & N. Rwy. Co., 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (Railway Labor Act); Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. *2331048; Humphrey v. Moore, 1964, 375 335, 84 S.Ct. 363, 11 L.Ed.2d 370; Vaca v. Sipes, 1967, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842. An affirmative action plan should be less suspect when negotiated between employer and union. The union’s duty to represent white workers, who may often be, as here, a majority of the bargaining unit, serves as a check on the fairness of the plan.15 U.S.
Second, the kind of relief given reduced the impact on white workers. Our Court and the Supreme Court have adopted the “rightful place” theory for remedying discrimination. See International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 371-377, 97 S.Ct. 1843, 1873-75, 52 L.Ed.2d 396, 437-441; Local 189, United Papermakers and Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100; Gamble v. Birmingham Southern R.R. Co., 5 Cir. 1975, 514 F.2d 678, 683; Bing v. Roadway Express, Inc., 5 Cir. 1973, 485 F.2d 441. Other circuits also adopted the rightful place theory as a fair solution. See, e. g., United States v. Navajo Freight Lines, 9 Cir. 1975, 525 F.2d 1318; Reed v. Arlington Hotel Co., 8 Cir. 1973, 476 F.2d 721, cert. denied, 1973, 414 U.S, 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (remedy must consider the interests of both groups); United States v. Bethlehem Steel Corp., 2 Cir. 1971, 446 F.2d 652, 659.
The rightful place remedy was originally seen as a compromise among three competing theories: “freedom now”, ■ “rightful place”, and “status quo”. Local 189, 416 F.2d at 988. The “freedom now” remedy would have displaced white workers in an effort to eliminate completely the effects of past discrimination. The “status quo” remedy would protect all the expectations acquired by white workers. The “rightful place” theory did not attempt to displace white workers, but required that any future actions be untainted by past discrimination. Since that time, some judges have expressed reservations about ordering relief which put too great a burden on white employees to assist blacks: “robbing Peter to pay Paul”. Franks v. Bowman Transportation Co., 1976, 424 U.S. 747, 781, 96 S.Ct. 1251, 47 L.Ed.2d 444 (Burger, C. J., dissenting). See id., 424 U.S. at 787-91, 96 S.Ct. 1251 (Powell, J., dissenting and concurring). The most prominent recent cases where a court refused to order a “quota” remedy involved lay-offs, when such a quota would have meant that whites would have lost their jobs in deference to less senior blacks. See Chance v. Board of Examiners, 2 Cir. 1976, 534 F.2d 993, cert. denied, 1977, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060; Watkins v. United Steelworkers of America, 5 Cir. 1975, 516 F.2d 41; Jersey Central Power & Light Co. v. IBEW, 3 Cir. 1975, 508 F.2d 687, vacated and remanded, 1976, 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812, on remand, 3 Cir., 542 *234F.2d 8; Waters v. Wisconsin Steel Works, 7 Cir. 1974, 502 F.2d 1309, cert. denied, 1976, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823; Anderson v. San Francisco School District, 1972, N.D.Cal., 357 F.Supp. 248; cf. Kirkland v. New York State Dept. of Correctional Services, 2 Cir. 1975, 520 F.2d 420 (quotas should not be imposed when identifiable white “victims” of the remedy exist).
In the instant case entirely new rights were created by the plan. None of the white or black employees affected by this proposal had any chance to receive craft training from Kaiser before the 1974 Agreement. Only those workers with prior experience had been eligible for training, and that pool had been exhausted. No white workers lost their jobs, none had expectations disappointed. Instead, the defendants created entirely new expectations in all the employees, without harming the chances of any Kaiser employee for such training.
Finally, the plan is reasonable because it allows significant white participation. Although the fastest way to remedy past discrimination would have been to institute a training program just for blacks,16 the Agreement provides that 50 percent of the workers trained will be white. Every Kaiser employee can benefit from the program. It is true that black employees receive more than their white colleagues, but the black employees arguably faced racial discrimination at Kaiser’s hands — the white workers did not. This white participation makes the plan more reasonable. See Carter v. Gallagher, 8 Cir. 1972, 452 F.2d 315 (en banc), cert. denied, 1972, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338; United States v. N. L. Industries, 8 Cir. 1973, 479 F.2d 354; Patterson v. Newspaper Deliverers’ Union, 2 Cir. 1975, 514 F.2d 767, 773, 775, cert. denied, 1976, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203.
Thus, the 1974 Agreement was a reasonable response to the situation. The defendants were faced with arguable violations of Title VII, federal government pressure, and the impending steel industry settlement. They created an affirmative action plan which aided all Kaiser employees while particularly assisting minority group members. We should not upset their efforts.17
III.
The defendants’ actions may also be upheld as a proper response to societal discrimination against blacks. The majority avoids the merits of this contention.
The Court does not deny that discrimination by craft unions may have had a major effect on the number of black craftsmen. The majority, however, focuses on the question of seniority. Those affected by the claimed discrimination are now unskilled workers. Because of the lower court’s determination that there was no • discrimination at Kaiser’s Gramercy plant, those unskilled workers have a seniority status which is unaffected by past discrimination. The majority then concludes that past discrimination cannot justify modification of this untainted seniority system to produce the job training ratios used.
*235“Where admissions to the craft on-the-job training programs are admittedly and purely functions of seniority and that seniority is untainted by prior discriminatory acts, the one-for-one ratio, whether designed by agreement between Kaiser and USWA or by order of court, has no foundation in restorative justice, and its preference for training minority workers thus violates Title VII.”
The majority’s error is in its last step. It connects the ratio with a change in the seniority system, but that misses the point. Seniority was the system voluntarily adopted by the defendants to allocate scarce opportunities within the black and white employee groups created by this plan. Although seniority is a major tool in modern labor relations, it is a voluntary tool. Unions and employers may agree on other methods of allocation. If, for example, the training program had provided that training opportunities would be divided among able black and white workers by two separate lotteries, the majority’s error would be clear. Although the past discrimination against blacks would not in any way affect their lottery numbers, that would have no implications for the validity of the program. The program stands or falls on its separation of workers into two racial pools for assignment to job training. The way that workers are then selected from within those pools is irrelevant. Admissions were not “admittedly and purely functions of seniority”, they were functions of race first, then seniority. No other situation existed before 1974, because there was no such training program before the 1974 Agreement. The only training program that existed then made admission a function of experience, not seniority. The Court cannot avoid the merits of the defendants’ assertion — societal discrimination justifies this plan.
Therefore, I am forced to confront directly the relationship between societal discrimination and Title VII. This is best dealt with by considering two subsidiary questions: May employers compensate employees for societal discrimination, and may race be used as a sign of societal discrimination?
Although the first question does not appear to have been passed upon in the courts, the answer should be “yes”. While the government might not be able to require that restorative justice be done, neither should it prevent it. Title VII prohibits only discrimination by race, sex, religion, or national origin. In other respects the discretion of the employe remains. There should be no objection to an employer preferring, for whatever reasons, employees who have faced discrimination. See majority opinion at 224-225.
The second question is more difficult. If employers may assist those victimized by past discrimination, may they use race as a proxy for the existence of such discrimination? A broad acceptance of that proposition could have drastic effects. Most of the ethnic groups represented in this country have been discriminated against at one time or another. If Americans of Irish, Italian, Jewish, or German extraction were allowed employment preferences as compensation for undoubted past societal discrimination, Title VII would be eviscerated.
Yet a negative answer to that question would also have serious implications. Acknowledged and damaging past discrimination would be without a private remedy in employment training. Unless a member of a minority group could show explicit discrimination, the laws that forbid future discrimination by employers would also forbid corrective action for past discrimination by others. If a large number of the people involved are not able to show this specific discrimination, then the group will be caught in the cycle caused by discrimination. The future laps of the race will be of equal length, but blacks, Latin-Americans, Asian-Americans, and women will have to start behind the other competitors.
In the present case the problem is clear. The history of discrimination in the trades is a sorry record of continual exclusion of women and minorities.18 Yet how many of *236the excluded workers could prove that they had applied for and been refused crafts jobs or training? How many have been deterred by the knowledge of their exclusion from even attempting to find crafts jobs? In some circumstances it is possible to determine whether a particular person has been harmed by discrimination, and to provide relief to that person. Here we know the discrimination existed, statistics show that it was effective, but it is difficult to identify individual victims. That situation would prevail against Title VII suits directly against the discriminating unions or in situations similar to the one this case presents, where third parties seek to compensate for the discrimination. The result would be a wrong without a remedy.
Some measures to compensate for past discrimination are provided by law currently. The federal government provides by statute a number of preferences for minorities.19 Closer to this case, employment discrimination law itself imposes requirements on employers which can be viewed only as compensation for racial isolation and its effects. Thus, Title VII’s requirement that employment tests must be validated does not require a finding that the employer chose the tests to produce discrimination, nor a finding that the employer produced the conditions that caused lower minority scores on the tests. Instead, it rests on a Congressional purpose not to allow the effects of past discrimination to affect employment decisions when those effects are not job-validated. Similarly, special recruiting efforts aimed at minority groups,
often imposed under affirmative action programs,20 are not conditioned on a showing that the employer intentionally selected the “white” media for recruiting. Instead, it is an effort to compensate for the isolation of minority groups from the mainstream of society, caused at least in part by past discrimination.
This dissent is not the place to explore the contours of a societal discrimination justification for employment or training preferences. However, when the discrimination is as egregious and recent as that against blacks in the crafts, a reasonable preference in training programs should be upheld.
IV.
A third ground for upholding the defendants’ actions is that their program was required by Executive Order 11246, 30 Fed. Reg. 12319. This Executive Order requires federal contractors to take affirmative action to prevent low employment of women and minorities in their workforces, starting from the assumption that most disproportionately low employment is the result of discrimination — if not of the contractor involved, then of someone else. I disagree with the majority’s view that if the Executive Order purports to legalize this program, the Executive Order is invalid. I believe, however, that the district court would have to determine whether this plan does in fact comport with the requirements of the Executive Order. Therefore, on this ground I would remand the case to the district court for further- proceedings.
*237I do not disagree with the majority’s conclusion that if a conflict between the Executive Order and Title VII exists, it should be resolved in favor of Title VII. But that weighty question of the allocation of power between the legislative and the executive branches of government need not be reached. Here, the two are not in conflict.
As the majority points out, affirmative action plans under the Executive Order have been held constitutional. See E.E.O.C. v. A.T. & T., 3 Cir. 1977, 556 F.2d 167, aff’g, 1976, E.D.Pa., 419 F.Supp. 1022; Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 3 Cir. 1971, 442 F.2d 159; Southern Illinois Builders Association v. Ogilvie, 7 Cir. 1972, 471 F.2d 680; Mele v. Department of Justice, 1975, D.N.J., 395 F.Supp. 592, aff’d without opinion, 3 Cir. 1976, 532 F.2d 747. Cf. Associated General Contractors of Massachusetts v. Altshuler, 1 Cir. 1973, 490 F.2d 9, cert. denied, 1974, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307; Joyce v. McCrane, 1970, D.N.J., 320 F.Supp. 1184; Weiner v. Cuyahoga Community College, 1968, Ohio Ct. of Appeals, aff’d mem., 1969,19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 1969, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (similar state plans). For a history of the Executive Order and the response to it in Congress and the courts, see Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 752 (1972).
The majority seeks to distinguish Contractors Ass’n of Eastern Pennsylvania by stressing the finding there that discrimination had existed in the industry. It should be noted that the parties involved in that case were the contractors; the groups discriminating were the crafts unions. The opinion is in fact directly in point in that respect because it involved actions of the non-discriminating parties.21
The legal situation has changed significantly since that opinion. Congress has implicitly exempted the Executive Order from the constraints of Title VII.22 See Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723, 751-57 (1972). Congress did so through three actions taken during consideration of the Equal Employment Opportunity Act of 1972, Pub.L. 92-261. At that time the regulations requiring affirmative action in the form of goals and timetables had been in effect for several years. The “Philadelphia Plan”, the subject of the Association Contractors decision, had been in effect for three years.
The legislation originally presented would have transferred the entire Executive Order enforcement program to the E.E.O.C. Congress eliminated that provision by an amendment offered by Senator Saxbe. In support of the amendment, the Senator stated:
It has been the “goals and timetables” approach which is unique to the OFCC’s efforts in equal employment, coupled with extensive reporting and monitoring procedures that has given the promise of equal employment opportunity a new credibility.
The Executive Order program should not be confused with the judicial remedies for proven discrimination which un*238fold on a limited and expensive case-by-case basis. Rather, affirmative action means that all Government contractors must develop programs to insure that all share equally in the jobs generated by the Federal Government’s spending. Proof of overt discrimination is not required.
118 Cong.Rec. 1385 (1972). Another amendment which would have had substantially the same result as the original language was rejected by Congress. 118 Cong.Rec. 3367-70, 3371-73, 3959-65 (1972).
The most telling action was the rejection by the Senate of an amendment to § 703(j) of Title VII, offered by Senator Ervin. The Ervin amendment would have extended that section to read:
Nothing contained in this title or in Executive Order No. 11246, or in any other law or Executive Order, shall be interpreted to require any employer . to grant preferential treatment to any individual. . . . [Emphasis added.]
118 Cong.Rec. 1676 (1972). This amendment was viewed and debated as an attack on Philadelphia-type plans. See 118 Cong. Rec. 1664-65 (1972) (Sen. Javits).23
Finally, the section-by-section analysis of the amendments undertaken by the Senate Subcommittee on Labor provided:
In any area where the new law does not address itself, or in any areas where a specific contrary intent is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.
Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, Legislative History of Equal Employment Opportunity Act of 1972 at 1844 (1972). With the decision in Contractors Association before it, there can be little question that whatever the status of that opinion before 1972, Congress ratified the Philadelphia Plan as consistent with Title VII.
The district court did not pass upon the validity and applicability of the Executive Order. There is a question whether Kaiser’s extensive recruiting efforts before 1974 completely satisfied the requirements of the Executive Order. See 41 C.F.R. § 60-2.1 et seq. Furthermore, the regulations promulgated under the Executive Order disclaim any intent to impose a “quota”. 41 C.F.R. § 60-2.30. If the majority is right about the effect of Title VII on this litigation, apart from considerations of the Executive Order, then the disavowal in the regulations of quotas might be read in the same way. Those questions require the consideration of the trial court. Therefore, if I accepted the majority’s position that Title VII, apart from the Executive Order, prohibited the conduct in question, I would still vacate the decision and remand it for further proceedings.24
V.
“Reverse discrimination” is a question of great current concern. It has spawned an extensive literature, and caused heated debates, some between former allies.25 It is a *239troubling question. The color blind constitution, so eloquently invoked by the first Justice Harlan, has great appeal. A person’s color should not be relevant to most decisions. This Court knows that acceptance of that principle did not come easily. At this stage in the history of eliminating racial discrimination, the use of a racial criterion because it is “benign” pulls us perilously close to self-contradiction. But in spite of our newly adopted equality, the pervasive effects of centuries of societal discrimination still haunt us. Kaiser and the United Steelworkers sought in a reasonable manner to remedy some of those effects in employment practices. Their actions may or may not be just to all its employees; they may or may not be wise; but I believe they are legal. Therefore, I respectfully dissent.
. United States v. Jefferson County School Board, 5 Cir. 1966, 372 F.2d 836, 876, aff’d on rehearing en banc, 380 F.2d 385, cert. denied sub nom. Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103. Continuing, we said: “To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.” 380 F.2d at 385.
. The plan in question applied to blacks, other minority groups, and women. However, at Gramercy its application thus far has involved only blacks. For convenience, I use the term “blacks” both in the specific Gramercy situation and in other situations, when a more complete statement would include the other affected groups.
. The record shows that the Gramercy plant has experienced an increase in black employment of about one percent of their total workforce per year since 1969. Although there was no direct evidence about the percentage of black employees in 1969, extrapolation from those figures produces an estimate that about 10 percent of the Kaiser workforce at Gramer-cy was black in 1969. Appendix at 123-24, 129-30, 137.
. Both companies entered this action as amici curiae, asserting an interest in the litigation because collective bargaining agreements to which they are parties contain similar provisions. ALCOA Brief at 1, Reynolds Brief at 1.
. See Appendix at 152 (Thomas Bowdle, Kaiser’s Director of Equal Opportunity Affairs), 131 (Dennis English, Industrial Relations Supervisor at Gramercy).
. The majority opinion leaves in question the status of consent decrees. These decrees, like the one approved by this Court two years ago in Allegheny-Ludlum, may be entered without extensive fact-finding by the district court. If consent decrees are immune from the majority’s test, friendly suits would offer employers an easy way to circumvent the holding of this opinion. If they are not immune, the district court, before accepting the consent decree, will be forced to determine the existence and extent of past discrimination by the defendants.
For reasons detailed below, at 221-222, I believe that the district court’s finding that there was no prior discrimination at the Gramercy plant is highly questionable. Even under the majority’s standard, the district court must be reversed if that finding is clearly erroneous. Rule 52(a) F.R.Civ.P. My disagreement with the standard the majority applies makes it unnecessary to determine whether this finding falls within Rule 52(a).
. The Supreme Court expressly reserved the question of the validity of “affirmative action programs” when it held that Title VII applied to white male workers. McDonald v. Santa Fe Trail Transportation Co., 1976, 427 U.S. 273, 281 n. 8, 96 S.Ct. 2574, 49 L.Ed.2d 493. The Courts of Appeals have considered and rejected “quotas” in some cases where such relief was sought in the district courts. See, e. g., Chance v. Board of Examiners, 2 Cir. 1976, 534 F.2d 993, cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060; Watkins v. United Steelworkers of America, 5 Cir. 1975, 516 F.2d 41; Waters v. Wisconsin Steel Works, 7 Cir. 1974, 502 F.2d 1309, cert. denied, 1976, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823. Several lower courts have considered voluntarily instituted preferential hiring in light of Title VII. See Cramer v. Va. Commonwealth University, 1976, E.D.Va., 415 F.Supp. 673; Reeves v. Eaves, 1976, N.D.Ga., 411 F.Supp. 531. Cf. Anderson v. San Francisco School Unified District, 1972, N.D.Cal., 357 F.Supp. 248 (not governed by Title VII); Flanagan v. Georgetown University, 1976, D.D.C., 417 F.Supp. 377 (distribution of scholarship funds, governed by Title VI).
The Supreme Court has held that race may “be considered in formulating a remedy” (North Carolina State Board of Education v. Swann, 1971, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586); in devising remedies, seniority credits for past discrimination (Franks v. Bowman Transportation Co., 1976, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444); in carrying out a prophylactic program to prevent racially disadvantageous outcomes, whether or not they violate the Constitution (United Jewish Organizations of Williamsburgh, Inc. v. Carey, 1977, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229); in avoiding racially disproportionate effects of employment testing practices (Albemarle Paper Co. v. Moody, 1975, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280).
. We need not consider in this case the validity of a settlement if actual, as opposed to arguable, discrimination is found by a reviewing court. Even if such a settlement were given no effect, voluntary compliance would be encouraged because the employer would be protected from suits from at least one side.
. Usually, a statistical showing of a significant discrepancy between the percentage of minority group members employed and the percentage of the minority group members in the relevant labor market is sufficient to make a prima facie case for a violation. See International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396; Wade v. Mississippi Cooperative Extension Service, 5 Cir. 1976, 528 F.2d 508, 516-17; United States v. Hayes International Corp., 5 Cir. 1972, 456 F.2d 112, 120. See also Hazelwood School District v. United States, 1977, - U.S. -,---, 97 S.Ct. 2736, 2741-2744, 53 L.Ed.2d 768, 777-80; Dothard v. Rawlinson, 1977, - U.S. -, ---, 97 S.Ct. 2720, 2726-2728, 53 L.Ed.2d 786, 797-98.
. See 42 U.S.C. § 2000e-2(h) (1970); Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Albemarle Paper Co. v. Moody, 1975, 422 U.S. 405, 425-36, 95 S.Ct. 2362, 45 L.Ed.2d 280; James v. Stockham Valves & Fittings Co., 5 Cir. 1977, 559 F.2d 310, 334-40; Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 221.
. See James v. Stockham Valves & Fittings Co., 5 Cir. 1977, 559 F.2d 310, 345-47; Bolton v. Murray Envelope Co., 5 Cir. 1974, 493 F.2d 191, 195; Rowe v. General Motors Corp., 5 Cir. 1972, 457 F.2d 348, 359; United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 442, cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815.
. Compare Dothard v. Rawlinson, 1977, - U.S.-,-, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786, 797 (relevant labor market 36.89 percent female, employees only 12.9 percent female establishes prima facie case).
. Compare this with the majority’s ground for rejecting societal discrimination as a justification for this program, supra at pp. 225-226.
. The Union’s influence can be seen in the f provisions which give white employees a signif- j icant share of these new opportunities. One of ' the Union’s major goals was to provide more '• advancement opportunities for Kaiser employees in place of workers hired off the street, j Appendix at 152. I
The Union’s duty to bargain in good faith for ' all its members does not prevent it from fairly advancing the national policy against discrimination, even if that requires assisting some of its members more than others.
Certainly there is no argument that the award of retroactive seniority to the victims of hiring discrimination in any way deprives other employees of indefeasibly vested rights conferred by the employment contract. This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest . . . The Court has also held that a collective bargaining agreement may go further, enhancing seniority status of certain employees for purposes of furthering public policy interests beyond what is required by statute, even though this will to some extent be detrimental to the expectations acquired by other employees under the previous seniority agreement And the ability of the union and employer voluntarily to modify the seniority system to the end of ameliorating the effects of past racial discrimination, a national policy objective of “the highest priority”; is certainly no less than in other areas of public policy interests.
Franks v. Bowman Transportation Co., 1976, 424 U.S. 747, 778-79, 96 S.Ct. 1251, 1271, 47 L.Ed.2d 444, 469-70.
. A program of pre-training preparation exclusively for blacks was approved by this Court in Buckner v. Goodyear Tire and Rubber Co., 5 Cir. 1973, 476 F.2d 1287, aff’g without opinion, 1972, N.D.Ala., 339 F.Supp. 1108. In a dissenting opinion strenuously attacking the use of quota remedies, Judge Hayes of the Second Circuit stated that training programs exclusively for blacks were legitimate affirmative action. Rios v. Enterprise Ass’n Steamfitters Local 638, 2 Cir. 1974, 501 F.2d 622, 637.
. One advantage of the standard I propose is that it takes the reasonableness of the remedy into consideration. The majority is concerned mainly with the existence of past discrimination. Once such discrimination is found, the only question appears to be whether a district court could have imposed such a remedy. A district court’s remedial authority in Title VII is extremely broad.
“The provisions of this subsection [§ 706(g)] are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible.”
118 Cong.Rec. 7168 (1972), Section-by-Section Analysis of Equal Employment Opportunity Act of 1972. The standard proposed in this dissent would limit private parties more than § 706(g) limits the judiciary by requiring that the remedy be “reasonable”.
. Judicial findings on discrimination in crafts are so common as to make it a proper subject for judicial notice. See, e. g., United States v. International Union of Elevator Constructors, 3 *236Cir. 1976, 538 F.2d 1012; Associated General Contractors of Massachusetts v. Aitshu’er, 1 Cir. 1973, 490 F.2d 9, cert. denied, 1974, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307; United States v. Wood, Wire and Metal Lathers, 2 Cir. 1973, 471 F.2d 408, cert. denied, 1973, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398; Southern Illinois Builders Association v. Ogilvie, 7 Cir. 1972, 471 F.2d 680; Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 3 Cir. 1971, 442 F.2d 159; cert. denied, 1971, 404 U.S. 854, 92 S.Ct. 447, 30 L.Ed.2d 367; Local 53 of International Association of Heat & Frost, etc. v. Vogler, 5 Cir. 1969, 407 F.2d 1047; Buckner v. Goodyear, 1972, N.D.Ala., 339 F.Supp. 1108, aff’d without opinion, 5 Cir. 1973, 476 F.2d 1287.
The “home town plans”, favored by recent Secretaries of Labor as an alternative to the Philadelphia-type plans, have not brought a great improvement. N. Y. Times, October 16, 1977 § 4, at 2, Col. 4.
. See Brief of the United States as Amicus Curiae, Regents of the University of California v. Bakke, U.S. No. 76-811 (argued Oct. 12, 1977), Appendix A. These programs may be of doubtful constitutionality pending the outcome of Bakke.
. See 41 C.F.R. § 60-2.24(e) (1976).
. The plaintiffs in that case were a contractors’ association and several intervening contractors. The unions, against whom the findings of exclusionary practices was lodged, participated only as amici. Thus, the contractors were in the same position that Kaiser finds itself in here.
. The predecessor of this Executive Order was mentioned in the 1964 Act in a section dealing with necessary reports, § 709(d), 42 U.S.C. § 2000e-8(d) (1970). It could be argued that the Order was protected by § 1103, 42 U.S.C. § 2000h-3 (1970), which is a saving clause for then existing authority for federal action.
it could also be argued that the rejection in 1969 of the so-called Fannin Rider demonstrated Congressional approval of the Executive Order. The Comptroller General had declared the Philadelphia Plan illegal on the ground that it lacked standards needed to comply with rules regulating competitive bidding. Senator Fan-nin introduced a rider to an appropriations bill which would have denied all funds for any contracts held illegal by the Comptroller General. The debate made clear that the Philadelphia Plan was the target of the Rider. See Comment, The Philadelphia Plan, supra, 747-50.
. Senator Javits made clear the connection between the Philadelphia Plan and the Ervin Amendment:
“First, it would undercut the whole concept of affirmative action as developed under Executive Order 11246 and thus preclude Philadelphia-type plans.”
118 Cong.Rec. 1665 (1972). The Contractors Association decision, which upheld the Philadelphia Plan, was printed in the Congressional Record at Senator Javit’s request.
. If, on remand, the district court were to conclude that the Executive Order was not violated by this plan, then a constitutional question might arise about the validity of this federal action. Of course, I express no opinion on the merits of that constitutional question. See United Jewish Organizations of Williamsburgh v. Carey, 1977, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229; Califano v. Webster, 1977, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360; Bakke v. Regents of the University of California, 1976, 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152, awaiting decision, U.S., No. 76-811 (Argued October 12, 1977).
. Among the more interesting treatments of this question are R. Dworkin, Taking Rights Seriously 223-39 (1977); N. Glazer, Affirmative Discrimination (1976); Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv.L.Rev. 1 (1976); Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974); Fiss, Groups and the *239Equal Protection Clause, 5 J.Phil. & Pub.Aff. 107 (1976); Fiss, A Theory of Fair Employment Laws, 38 U.Chi.L.Rev. 235 (1971); Kaplan, Equal Justice in an Unequal World: Equality for the Negro — The Problem of Special Treatment, 61 Nw.L.Rev. 363 (1966).