General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982)

Author: Justice Rehnquist

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General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982)

JUSTICE REHNQUIST delivered the opinion of the Court.

Respondents, the Commonwealth of Pennsylvania and the representatives of a class of racial minorities who are skilled or seek work as operating engineers in the construction industry in Eastern Pennsylvania and Delaware, commenced this action under a variety of federal statutes protecting civil rights, including 42 U.S.C. § 1981. The complaint sought to redress racial discrimination in the operation of an exclusive hiring hall established in contracts between Local 542 of the International Union of Operating Engineers and construction industry employers doing business within the Union’s jurisdiction. Respondents also alleged discrimination in the operation of an apprenticeship program established by Local 542 and several construction trade associations. Named as defendants were Local 542, the trade associations, the organization charged with administering the trade’s apprenticeship program, and a class of approximately 1,400 construction industry employers. Petitioners, the defendant contractors and trade associations, seek review of a judgment granting an injunction against them. The questions we resolve are whether liability under 42 U.S.C. § 1981 requires proof of discriminatory intent, and whether, absent such proof, liability can nevertheless be imposed vicariously on the employers and trade associations for the discriminatory conduct of the Union.


The hiring hall system that is the focus of this litigation originated in a collective bargaining agreement negotiated in 1961 by Local 542 and four construction trade associations in the Philadelphia area, three of whom are petitioners in this Court.{1} The agreement was concluded only after a 10-week strike prompted by the resistance of the trade associations to the Union’s demand for an exclusive hiring hall.{2} Under the terms of the agreement, the Union was to maintain lists of operating engineers, or would-be engineers, classified according to the extent of their recent construction experience. Signatory employers were contractually obligated to hire operating engineers only from among those referred by the Union from its current lists. Workers affiliated with the Union were barred from seeking work with those employers except through Union referrals. Thus, the collective bargaining agreement effectively channeled all employment opportunities through the hiring hall. Since 1961, this requirement has been a constant feature of contracts negotiated with Local 542 by the trade associations, as well as of contracts signed with the Union by employers who were not represented by one of those associations in collective bargaining.{3}

Among the means of gaining access to the Union’s referral lists is an apprenticeship program established in 1965 by Local 542 and the trade associations. The program, which involves classroom and field training, is administered by the Joint Apprenticeship and Training Committee (JATC), a body of trustees half of whom are appointed by the Union and half by the trade associations. While enrolled in the program, apprentices are referred by the Union for unskilled construction work. Graduates of the program become journeymen operating engineers and are referred for heavy equipment jobs.

This action was filed in 1971 by the Commonwealth of Pennsylvania and 12 black plaintiffs representing a proposed class of minority group members residing within the jurisdiction of Local 542. The complaint charged that the Union and the JATC had violated numerous state and federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp. IV), and 42 U.S.C. § 1981. The complaint alleged that these defendants had engaged in a pattern and practice of racial discrimination, by systematically denying access to the Union’s referral lists, and by arbitrarily skewing referrals in favor of white workers, limiting most minority workers who did gain access to the hiring hall to jobs of short hours and low pay. The contractor employers and trade associations were also named as defendants, although the complaint did not allege a Title VII cause of action against them.{4}

The District Court divided the trial into two stages. See Pennsylvania v. Local 542, Int’l Union of Operating Engineers, 469 F.Supp. 329, 348 (ED Pa.1978). The first stage, from which petitioners appeal, addressed issues of liability; assessment of damages was deferred to a second stage. For purposes of the first phase of the proceedings, the court certified a plaintiff class of minority operating engineers and would-be engineers, as well as a defendant class consisting of all trade associations and employers who had been parties to labor contracts with Local 542. A single employer, petitioner Glasgow, Inc., was certified to represent the defendant subclass of approximately 1,400 contractor employers.{5}

The District Court’s opinion in the liability phase of the trial is lengthy. For our purposes, however, the relevant findings and conclusions can be summarized briefly. First, the court found that the hiring hall system established by collective bargaining was neutral on its face. Id. at 342. Indeed, after May 1, 1971, the contracts contained a provision expressly prohibiting employment discrimination on the basis of race, religion, color, or national origin. Id. at 340, and n. 6. But the court found that Local 542, in administering the system,

practiced a pattern of intentional discrimination and that union practices in the overall operation of a hiring hall for operating engineers created substantial racial disparities.

Id. at 370. The court made similar findings regarding the JATC’s administration of the job training program. Id. at 384. On the basis of these findings, the District Court held that Local 542 and the JATC had violated Title VII, both because they intentionally discriminated and because they enforced practices that resulted in a disparate racial impact. Id. at 397-399.{6} The court also interpreted 42 U.S.C. § 1981 to permit imposition of liability "on roughly the same basis as a Title VII claim," 469 F.Supp. at 401, and therefore concluded that the Union and the JATC had also violated § 1981. Id. at 399-401.

Turning to petitioners’ liability under § 1981, the court found that the plaintiffs had failed to prove "that the associations or contractors, viewed simply as a class, were actually aware of the union discrimination," id. at 401, and had failed to show "intent to discriminate by the employers as a class," id. at 412. Nevertheless, the court held the employers and the associations liable under § 1981 for the purpose of imposing an injunctive remedy

as a result of their contractual relationship to and use of a hiring hall system which, in practice, effectuated intentional discrimination, whether or not the employers and associations knew or should have known [of the Union’s conduct].

Id. at 401. The court reasoned that liability under § 1981 "requires no proof of purposeful conduct on the part of any of the defendants." Id. at 407. Instead, it was sufficient that

(1) the employers delegated an important aspect of their hiring procedure to the union; [and that] (2) the union, in effectuating the delegation, intentionally discriminated or, alternatively, produced a discriminatory impact.

Id. at 412.

[P]laintiffs have shown that the requisite relationship exists among employers, associations, and union to render applicable the theory of respondeat superior, thus making employers and associations liable injunctively for the discriminatory acts of the union.

Id. at 413.{7}

Following an appeal authorized by 28 U.S.C. § 1292(b), the Court of Appeals for the Third Circuit, sitting en banc, affirmed the judgment of liability against petitioners by an equally divided vote. 648 F.2d 923 (1981). We granted certiorari, 454 U.S. 939 (1981), and we now reverse.


The District Court held that petitioners had violated 42 U.S.C. § 1981 notwithstanding its finding that, as a class, petitioners did not intentionally discriminate against minority workers, and neither knew nor had reason to know of the Union’s discriminatory practices. The first question we address, therefore, is whether liability may be imposed under § 1981 without proof of intentional discrimination.{8}

Title 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

We have traced the evolution of this statute and its companion, 42 U.S.C. § 1982,{9} on more than one occasion, see, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287-296 (1976); Runyon v. McCrary, 427 U.S. 160, 168-170 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-437 (1968), and we will not repeat the narrative again except in broad outline.

The operative language of both laws apparently originated in § 1 of the Civil Rights Act of 1866, 14 Stat. 27, enacted by Congress shortly after ratification of the Thirteenth Amendment.{10}

The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality.

Georgia v. Rachel, 384 U.S. 780, 791 (1966). The same Congress also passed the Joint Resolution that was later adopted as the Fourteenth Amendment. See Cong.Globe, 39th Cong., 1st Sess., 3148-3149, 3042 (1866). As we explained in Hurd v. Hodge, 334 U.S. 24, 32-33 (1948) (footnotes omitted):

Frequent references to the Civil Rights Act are to be found in the record of the legislative debates on the adoption of the Amendment. It is clear that, in many significant respects, the statute and the Amendment were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land. Others supported the adoption of the Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States.

Following ratification of the Fourteenth Amendment, Congress passed what has come to be known as the Enforcement Act of 1870, 16 Stat. 140, pursuant to the power conferred by § 5 of the Amendment. Section 16 of that Act contains essentially the language that now appears in § 1981.{11} Indeed, the present codification is derived from § 1977 of the Revised Statutes of 1874, which in turn codified verbatim § 16 of the 1870 Act. Section 16 differed from § 1 of the 1866 Act in at least two respects. First, where § 1 of the 1866 Act extended its guarantees to "citizens, of every race and color," § 16 of the 1870 Act -- and § 1981 -- protects "all persons." See United States v. Wong Kim Ark, 169 U.S. 649, 675 (1898). Second, the 1870 Act omitted language contained in the 1866 Act, and eventually codified as § 1982, guaranteeing property rights equivalent to those enjoyed by white citizens. Thus,

[a]lthough the 1866 Act rested only on the Thirteenth Amendment . . . and, indeed, was enacted before the Fourteenth Amendment was formally proposed, . . . the 1870 Act was passed pursuant to the Fourteenth, and changes in wording may have reflected the language of the Fourteenth Amendment.

Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439-440, n. 11 (1973). See Runyon v. McCrary, supra, at 168-170, n. 8.

In determining whether § 1981 reaches practices that merely result in a disproportionate impact on a particular class, or instead is limited to conduct motivated by a discriminatory purpose, we must be mindful of the "events and passions of the time" in which the law was forged. United States v. Price, 383 U.S. 787, 803 (1966). The Civil War had ended in April, 1865. The First Session of the Thirty-ninth Congress met on December 4, 1865, some six months after the preceding Congress had sent to the States the Thirteenth Amendment, and just two weeks before the Secretary of State certified the Amendment’s ratification. On January 5, 1866, Senator Trumbull introduced the bill that would become the 1866 Act.{12}

The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen.{13} Most of these laws embodied express racial classifications, and although others, such as those penalizing vagrancy, were facially neutral, Congress plainly perceived all of them as consciously conceived methods of resurrecting the incidents of slavery.{14} Senator Trumbull summarized the paramount aims of his bill:

Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the [Thirteenth] amendment.

Cong.Globe, 39th Cong., 1st Sess., 474 (1866). Senator Trumbull emphasized:

This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man.

Id. at 476 (emphasis in original).

Of course, this Court has found in the legislative history of the 1866 Act evidence that Congress sought to accomplish more than the destruction of state-imposed civil disabilities and discriminatory punishments. We have held that both § 1981 and § 1982 "prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein." Jones v. Alfred H. Mayer Co., 392 U.S. at 436. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-460 (1975); Runyon v. McCrary, 427 U.S. at 168. Nevertheless, the fact that the prohibitions of § 1981 encompass private as well as governmental action does not suggest that the statute reaches more than purposeful discrimination, whether public or private. Indeed, the relevant opinions are hostile to such an implication. Thus, although we held in Jones, supra, that § 1982 reaches private action, we explained that § 1 of the 1866 Act "was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute." 392 U.S. at 426 (emphasis on "racially motivated" added). Similarly, in Runyon v. McCrary, supra, we stated that § 1981 would be violated

if a private offeror refuses to extend to a Negro, solely because he is a Negro, the same opportunity to enter into contracts as he extends to white offerees.

427 U.S. at 170-171.

The immediate evils with which the Thirty-ninth Congress was concerned simply did not include practices that were "neutral on their face, and even neutral in terms of intent," Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971), but that had the incidental effect of disadvantaging blacks to a greater degree than whites. Congress instead acted to protect the freedmen from intentional discrimination by those whose object was "to make their former slaves dependent serfs, victims of unjust laws, and debarred from all progress and elevation by organized social prejudices." Cong.Globe, 39th Cong., 1st Sess., 1839 (1866) (Rep. Clarke). See Memphis v. Greene, 451 U.S. 100, 131-136 (1981) (WHITE, J., concurring in judgment). The supporters of the bill repeatedly emphasized that the legislation was designed to eradicate blatant deprivations of civil rights, clearly fashioned with the purpose of oppressing the former slaves. To infer that Congress sought to accomplish more than this would require stronger evidence in the legislative record than we have been able to discern.{15}

Our conclusion that § 1981 reaches only purposeful discrimination is supported by one final observation about its legislative history. As noted earlier, the origins of the law can be traced to both the Civil Rights Act of 1866 and the Enforcement Act of 1870. Both of these laws, in turn, were legislative cousins of the Fourteenth Amendment. The 1866 Act represented Congress’ first attempt to ensure equal rights for the freedmen following the formal abolition of slavery effected by the Thirteenth Amendment. As such, it constituted an initial blueprint of the Fourteenth Amendment, which Congress proposed in part as a means of "incorporat[ing] the guaranties of the Civil Rights Act of 1866 in the organic law of the land." Hurd v. Hodge, 334 U.S. at 32.{16} The 1870 Act, which contained the language that now appears in § 1981, was enacted as a means of enforcing the recently ratified Fourteenth Amendment. In light of the close connection between these Acts and the Amendment, it would be incongruous to construe the principal object of their successor, § 1981, in a manner markedly different from that of the Amendment itself.{17}

With respect to the latter, "official action will not be held unconstitutional solely because it results in a racially disproportionate impact," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-265 (1977).

[E]ven if a neutral law has a disproportionately adverse impact upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979). See Washington v. Davis, 426 U.S. 229 (1976). The same Congress that proposed the Fourteenth Amendment also passed the Civil Rights Act of 1866, and the ratification of that Amendment paved the way for the Enforcement Act of 1870. These measures were all products of the same milieu, and were directed against the same evils. Although Congress might have charted a different course in enacting the predecessors to § 1981 than it did in proposing the Fourteenth Amendment, we have found no convincing evidence that it did so.

We conclude, therefore, that § 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.


The District Court held petitioners liable under § 1981 notwithstanding its finding that the plaintiffs had failed to prove intent to discriminate on the part of the employers and associations as a class. In light of our holding that § 1981 can be violated only by intentional discrimination, the District Court’s judgment can stand only if liability under § 1981 can properly rest on some ground other than the discriminatory motivation of the petitioners themselves. Both the District Court and respondents have relied on such grounds, but we find them unconvincing.


The District Court reasoned that liability could be vicariously imposed upon the employers and associations, based upon the intentional discrimination practiced by Local 542 in its operation of the hiring hall. The court’s theory was that petitioners had delegated to the "union hiring hall" the authority to select workers as "the agent for two principals -- the union and the contractors, with their respective associations." 469 F.Supp. at 411. Since the hiring hall came into existence only through the agreement of petitioners, and since the exclusive hiring hall was the means by which "the intentional discrimination of the union was able to work its way broadly into the common workforce of operating engineers," id. at 412, the court concluded that "[t]he acts of the union therefore justify imposition of responsibility upon those employers participating in the original delegation," ibid. The effect of this holding, as the court recognized, was to impose a "duty to see that discrimination does not take place in the selection of one’s workforce," regardless of where the discrimination originates. Ibid.

As applied to the petitioner associations, the District Court’s theory is flawed on its own terms. The doctrine of respondeat superior, as traditionally conceived and as understood by the District Court, see id. at 411, enables the imposition of liability on a principal for the tortious acts of his agent and, in the more common case, on the master for the wrongful acts of his servant. See Restatement (Second) of Agency §§ 215-216, 219 (1958) (Restatement); W. Prosser, Law of Torts §§ 69-70 (4th ed.1971) (Prosser); W. Seavey, Law of Agency § 83 (1964) (Seavey).

Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.

Restatement § 1. A master-servant relationship is a form of agency in which the master employs the servant as "an agent to perform service in his affairs" and "controls or has the right to control the physical conduct of the other in the performance of the service." Id., § 2. See 2 F. Harper & F. James, Law of Torts § 26.6 (1956) (Harper & James). Local 542, in its operation of the hiring hall, simply performed no function as the agent or servant of the associations. The record demonstrates that the associations themselves do not hire operating engineers, and never have. Their primary purpose is to represent certain employers in contract negotiations with the Union. Even if the doctrine of respondeat superior were broadly applicable to suits based on § 1981, therefore, it would not support the imposition of liability on a defendant based on the acts of a party with whom it had no agency or employment relationship.{18}

We have similar difficulty in accepting the application of traditional respondeat superior doctrine to the class of contractor employers. In the run of cases, the relationship between an employer and the union that represents its employees simply cannot be accurately characterized as one between principal and agent or master and servant. Indeed, such a conception is alien to the fundamental assumptions upon which the federal labor laws are structured.

At the core of agency is a "fiduciary relation" arising from the "consent by one person to another that the other shall act on his behalf and subject to his control." Restatement § 1. Equally central to the master-servant relation is the master’s control over or right to control the physical activities of the servant. See id. § 220; 2 Harper & James § 26.3; Seavey § 84, p. 142. See also Logue v. United States, 412 U.S. 521, 527 (1973). The District Court found that the requirement of control was satisfied because "the employers retained power to oppose the union discrimination." 469 F.Supp. at 411, n. 61. However, the "power to oppose" the Union, even when the opposition is grounded in the terms of the collective bargaining agreement, is not tantamount to a "right to control" the Union. See Lummus Co. v. NLRB, 119 U.S.App.D.C. 229, 236, 339 F.2d 728, 735 (1964).{19} Indeed, a rule equating the two would convert every contractual relationship into an agency relationship, a result clearly unsupported by the common law doctrines on which the District Court relied.

The District Court’s assumptions about the relation between the Union and the class of employers with whom it has contracted also runs counter to the premises on which the federal labor laws have been constructed. While authorizing collective bargaining and providing means of enforcing the resultant contracts, the National Labor Relations Act expressly prohibits employers from compromising the independence of labor unions. See 49 Stat. 452, as amended, 29 U.S.C. § 158(a); 61 Stat. 157, as amended, 29 U.S.C. § 186. The entire process of collective bargaining is structured and regulated on the assumption that

[t]he parties -- even granting the modification of views that may come from a realization of economic interdependence -- still proceed from contrary and, to an extent, antagonistic viewpoints and concepts of self-interest.

NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960). See Vaca v. Sipes, 386 U.S. 171, 177 (1967). We have no reason to doubt the validity of that assumption in the instant case.

Respondents also suggest that petitioners can be held vicariously liable for the discriminatory conduct of the JATC. They argue that the JATC is properly viewed as an agent of both Local 542 and the associations, emphasizing that half of the trustees charged with administering the JATC are appointed by the associations, and that the JATC is wholly funded by mandatory contributions from the employers. We note initially that the District Court premised petitioners’ liability not on the actions of the JATC, but on the discriminatory conduct of the Union. See 469 F.Supp. at 411-413. The record, therefore, contains no findings regarding the relationship between the JATC and petitioners, beyond those noted above, that might support application of respondeat superior.

The facts emphasized by respondents, standing alone, are inadequate. That the employers fund the activities of the JATC does not render the JATC the employers’ servant or agent any more than an independent contractor is rendered an agent simply because he is compensated by the principal for his services. The employers must also enjoy a right to control the activities of the JATC, and there is no record basis for believing that to be the case. Neither is a right of control inferable merely from the power of the associations to appoint half of the JATC’s trustees. It is entirely possible that the trustees, once appointed, owe a fiduciary duty to the JATC and the apprentices enrolled in its programs, rather than to the entities that appointed them. Cf. NLRB v. Amax Coal Co., 453 U.S. 322 (1981). On the assumption that respondeat superior applies to suits based on § 1981, there is no basis for holding either the employers or the associations liable under that doctrine without evidence that an agency relationship existed at the time the JATC committed the acts on which its own liability was premised.


The District Court also justified its result by concluding that § 1981 imposes a "nondelegable duty" on petitioners "to see that discrimination does not take place in the selection of [their] workforce." 469 F.Supp. at 412. The concept of a nondelegable duty imposes upon the principal not merely an obligation to exercise care in his own activities, but to answer for the wellbeing of those persons to whom the duty runs. See Restatement § 214.{20} The duty is not discharged by using care in delegating it to an independent contractor. Consequently, the doctrine creates an exception to the common law rule that a principal normally will not be liable for the tortious conduct of an independent contractor. See 2 Harper & James § 26.11, pp. 1405-1408; Prosser § 70, p. 467, § 71, p. 470. So understood, a nondelegable duty is an affirmative obligation to ensure the protection of the person to whom the duty runs.

In a sense, to characterize such a duty as "nondelegable" is merely to restate the duty. Thus, in this litigation, the question is not whether the employers and associations are free to delegate their duty to abide by § 1981, for, whatever duty the statute imposes, they are bound to adhere to it. The question is what duty does § 1981 impose. More precisely, does § 1981 impose a duty to refrain from intentionally denying blacks the right to contract on the same basis as whites, or does it impose an affirmative obligation to ensure that blacks enjoy such a right? The language of the statute does not speak in terms of duties. It merely declares specific rights held by "[a]ll persons within the jurisdiction of the United States." We are confident that the Thirty-ninth Congress meant to do no more than prohibit the employers and associations in these cases from intentionally depriving black workers of the rights enumerated in the statute, including the equal right to contract. It did not intend to make them the guarantors of the workers’ rights as against third parties who would infringe them. Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-578 (1978) (Title VII); Rizzo v. Goode, 423 U.S. 362, 376-377 (1976) (42 U.S.C. § 1983).

Our earlier holding that § 1981 reaches only intentional discrimination virtually compels this conclusion. It would be anomalous to hold that § 1981 could be violated only by intentional discrimination, and then to find this requirement satisfied by proof that the individual plaintiffs did not enjoy "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens," and that the defendants merely failed to ensure that the plaintiffs enjoyed employment opportunities equivalent to that of whites. Such a result would be particularly inappropriate in the case of the associations, who are not engaged in the construction business, do not employ operating engineers, and consequently did not delegate to the Union any hiring functions which they otherwise would have performed themselves. Neither the District Court nor respondents identify anything in the language or legislative history of the statute to support a contrary conclusion.{21}


In a separate portion of their brief, respondents urge several independent bases for the issuance of an injunction against the petitioners and the allocation to them of a portion of the costs of the remedial decree. Respondents first assert that the court had inherent equitable power to allocate remedial costs among all the named defendants. They also rely on the All Writs Act, 28 U.S.C. § 1651(a), as an independent basis for the injunctive portions of the District Court’s order running against petitioners. We shall deal with these contentions in turn.

The District Court, in an opinion issued after judgment, set forth the basis for its holding that

defendants held injunctively liable solely under a theory of vicarious responsibility are nevertheless liable for "a share" of the costs under Rule 54(d).

Pennsylvania. v. Local 542, Int’l Union of Operating Engineers, 507 F.Supp. 1146, 1152 (1980). The District Court framed the inquiry before it as whether a party held vicariously liable to an injunction, but not for damages, might nonetheless have a proportionate share of the costs assessed against it. While this may have been an entirely appropriate frame of reference for the District Court, following its holding that petitioners were vicariously liable and therefore subject to an injunction, it is obviously not the proper frame of reference for our discussion. For the reasons previously stated, we have concluded that petitioners were not properly subject to an injunction on any of the theories set forth by the District Court. The issue before us, therefore, is whether a party not subject to liability for violating the law may nonetheless be assessed a proportionate share of the costs of implementing a decree to assure nondiscriminatory practices on the part of another party which was properly enjoined.

We find respondent’s arguments based on the traditional equitable authority of courts to be unpersuasive. In Milliken v. Bradley, 433 U.S. 267 (1977), upon which respondents rely and which we believe to be the case most closely in point, we expressly noted that the state petitioners had been found guilty of creating at least a portion of the constitutional violation which the order challenged in that case was designed to remedy. Id. at 281-282, 289. Thus our holding there was consistent with our opinion in Hills v. Gautreaux, 425 U.S. 284 (1976), where we explained the relationship between our holding in the first Milliken case, Milliken v. Bradley, 418 U.S. 717 (1974), and our opinion in Swann v.Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). We read these earlier decisions as recognizing "fundamental limitations on the remedial powers of the federal courts." 425 U.S. at 293. Those powers could be exercised only on the basis of a violation of the law, and could extend no farther than required by the nature and the extent of that violation. Id. at 293-294. This principle, we held, was not one limited to school desegregation cases, but was instead

premised on a controlling principle governing the permissible scope of federal judicial power, a principle not limited to a school desegregation context.

Id. at 294, n. 11.

We think that the principle enunciated in these cases, transposed to the instant factual situation, offers no support for the imposition of injunctive relief against a party found not to have violated any substantive right of respondents. This is not to say that defendants in the position of petitioners might not, upon an appropriate evidentiary showing, be retained in the lawsuit and even subjected to such minor and ancillary provisions of an injunctive order as the District Court might find necessary to grant complete relief to respondents from the discrimination they suffered at the hands of the Union. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399-400 (1982). But that sort of minor and ancillary relief is not the same, and cannot be the same, as that awarded against a party found to have infringed the statutory rights of persons in the position of respondents.

The order of the District Court, insofar as it runs against petitioners, cannot be regarded as "minor" or "ancillary" in any proper sense of those terms. First, it imposes considerable burdens on the employers and associations. It directs the employers to meet detailed "minority utilization goals" in their hiring, keyed to the number of hours worked. App. to Pet. for Cert. in No. 81-280, p. 236. If they are unable to do so through referrals from Local 542, they are required to hire minority operating engineers who are not affiliated with the Union. Ibid. If the goals are still not satisfied, the employers must recruit and hire unskilled minority workers from the community and provide on-the-job training. Id. at 236-237. The employers are also obligated to make quarterly reports detailing the extent of their compliance with these directives. Id. at 241-242. Finally, the District Court imposed on the employers and the associations a share of the financial cost incidental to enforcement of the remedial decree as a whole. Id. at 252-254. See 507 F.Supp. 1146 (1980). According to petitioners, the expense of the decree in the first year of its 5-year life exceeded $200,000. See Brief for Petitioner in No. 81-280, p. 45, n. 77.

Absent a supportable finding of liability, we see no basis for requiring the employers or the associations to aid either in paying for the cost of the remedial program as a whole or in establishing and administering the training program. Nor is the imposition of minority hiring quotas directly upon petitioners the sort of remedy that may be imposed without regard to a finding of liability. If the Union and the JATC comply with the decree by training and referring minority workers, we see no reason to assume, absent supporting evidence, that the employers will not hire the minority workers referred pursuant to the collective bargaining agreement, and employ them at wages and hours commensurate with those of nonminority workers. If experience proves otherwise, the District Court will then have more than sufficient grounds for including the employers within the scope of the remedial decree.

To the extent that the remedy properly imposed upon the Union and the JATC requires any adjustment in the collective bargaining contract between petitioners and the Union, it is entirely appropriate for the District Court to fashion its injunctive remedy to so provide, and to have that remedy run against petitioners as well as the Union and the JATC. But the injunctive decree entered by the District Court, as presently drawn, treats petitioners as if they had been properly found liable for the Union’s discrimination. A decree containing such provisions, we hold, is beyond the traditional equitable limitations upon the authority of a federal court to formulate such decrees.

Nor does the All Writs Act, 28 U.S.C. § 1651(a), support the extensive liability imposed upon petitioners by the District Court. The District Court did not rely upon this Act, and we think it completely wide of the mark in justifying the relief granted by the District Court. That Act was most recently considered by this Court in United States v. New York Telephone Co., 434 U.S. 159 (1977), where we said:

This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained. . . .

Id. at 172. In New York Telephone, we held that the All Writs Act was available to require a third party to assist in the carrying out of a District Court order pertaining to the installation of pen registers, and, in doing so, we noted that

[t]he order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations.

Id. at 175.

An examination of our cases which have relied on the All Writs Act convinces us that respondents are simply barking up the wrong tree when they seek to support the injunctive order of the District Court against petitioners on the basis of the provisions of that Act. There was no need for the District Court to treat petitioners as strangers to this lawsuit, and therefore to rely upon some extraordinary form of process or writ to bring them before the court. Petitioners had been named as defendants by respondents in their complaint, and they litigated the injunctive liability phase of the action before the District Court. Petitioners were parties to the action in every sense of the word, and subject to the jurisdiction of the District Court both as to the imposition of liability and as to the framing of a remedial decree. The difficulty faced by respondents in supporting the decree of the District Court insofar as it grants affirmative relief and requires payment toward the cost of implementing the decree is not that petitioners would otherwise be strangers to the action. The difficulty lies instead with the fact that, on the record before the District Court, the petitioners could not properly be held liable to any sort of injunctive relief based on their own conduct.

Thus, insofar as respondents’ arguments for the imposition of remedial obligations upon petitioners rests upon the assumption that petitioners were properly found liable for the violation of respondents’ rights to be free from discrimination, that assumption can no longer stand in view of the conclusions previously set forth in this opinion. Insofar as respondents’ assertions are based on some authority of the District Court to impose the sort of obligations which it did upon petitioners even though petitioners could not be held liable on the record before the District Court, we hold that such obligations can be imposed neither under traditional equitable authority of the District Court nor under the All Writs Act.{22}

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

* Together with No. 81-330, United Engineers & Constructors, Inc. v. Pennsylvania, et al.; No. 81-331, Contractors Association of Eastern Pennsylvania et al. v. Pennsylvania, et al.; No. 81-332, Glasgow, Inc. v. Pennsylvania et al.; and No. 81-333, Bechtel Power Corp. v. Pennsylvania, et al., also on certiorari to the same court.

1. The petitioner associations are the General Building Contractors Association (GBCA), the Contractors Association of Eastern Pennsylvania (CAEP), and the United Contractors Association (UCA). The fourth group, the Pennsylvania Excavating Contractors Association, was dissolved in 1972 after the commencement of this action.

2. A second strike occurred in 1963, when the contractor associations unsuccessfully sought to remove the hiring hall provision from the area collective bargaining agreement.

3. The District Court found that "a vast majority of the employers are not and have not been active members of the defendant associations." Pennsylvania v. Local 542, Int’l Union of Operating Engineers, 469 F.Supp. 329, 342 (ED Pa.1978). Nevertheless, the court found that "the negotiations conducted by those bodies have established a standard to which the unaffiliated contractors may conform." Ibid.

4. The complaint did not assert a Title VII cause of action against petitioners, because they were not named in the complaint filed by the plaintiffs with the Equal Employment Opportunity Commission, a precondition to suit in federal court. See Brief for Individual and Class Respondents 12, n. 18.

5. Certification of this class evidently was influenced by the District Court’s conclusion that liability could be imposed without regard to individualized issues such as the intent or work-force statistics of the individual employers. See 469 F.Supp. at 384, 414. The court emphasized that the determination of liability in damages could require individualized proof; it therefore held out the possibility that the defendant class might be decertified in the second stage of the proceedings. Id. at 413, 415, 41420.

6. The District Court’s legal conclusions addressed only the liability of Local 542. The court explained:

Because of the JATC’s participation in the overall intentional discrimination of the union, there is no need to discuss its legal liability separately. The JATC is liable as the union is liable.

Id. at 401, n. 52.

7. The District Court absolved petitioners of liability under 42 U.S.C. § 1985(3) (1976 ed., Supp. IV), noting that

no per se or vicarious liability theory could be used to hold a class of employers liable for conspiracy to commit the discrimination practiced by the union.

469 F.Supp. at 413. Absent such a theory, the plaintiffs could not prevail, because "there was no sufficient proof that as a class the employers agreed to violate equal protection rights or equal privileges and immunities." Ibid. Moreover,

[n]ot even acquiescence of the whole class of employers in the sense of a conscious toleration of the discrimination of the union ha[d] been shown.


In light of its disposition, the court found it unnecessary to address other causes of action alleged by the plaintiffs. See id. at 386, n. 43.

8. The District Court concluded, by analogy to Title VII, that a violation of § 1981 could be made out by "proof of disparate impact alone." Id. at 401. The court referred to Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which we held that Title VII forbids the use of employment tests that produce a disproportionate racial impact unless the employer shows "a manifest relationship to the employment in question," id. at 432. See Teamsters v. United States, 431 U.S. 324, 335-336 (1977).

The District Court’s holding on this issue is contrary to the holding of every Court of Appeals that has addressed the matter, including that of the Third Circuit in a subsequent case. See Guardians Assn. v. Civil Service Comm’n of New York City, 633 F.2d 232, 263-268 (CA2 1980), cert. granted, 454 U.S. 1140 (1982); Croker v. Boeing Co., 662 F.2d 975, 984-989 (CA3 1981) (en banc); Williams v. DeKalb County, 582 F.2d 2 (CA5 1978); Mescall v. Burrus, 603 F.2d 1266, 1269-1271 (CA7 1979); Craig v. County of Los Angeles, 626 F.2d 659, 668 (CA9 1980), cert. denied, 450 U.S. 919 (1981); Chicano Police Officer’s Assn. v. Stover, 552 F.2d 918, 920-921 (CA10 1977). Two other Circuits have approved a requirement of discriminatory intent in dicta. See Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 14 (CA1 1979); Detroit Police Officers’ Assn. v. Young, 608 F.2d 671, 692 (CA6 1979), cert. denied, 452 U.S. 938 (1981). See also Johnson v. Alexander, 572 F.2d 1219, 1223-1224 (CA8), cert. denied, 439 U.S. 986 (1978); Donnell v. General Motors Corp., 576 F.2d 1292, 1300 (CA8 1978). But see Kinsey v. First Regional Securities, Inc., 181 U.S.App.D.C. 207, 215, n. 22, 557 F.2d 830, 838, n. 22 (1977).

9. Section 1982 provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

10. Section 1 of the Act of Apr. 9, 1866, read in part:

That all persons born in the United States and not subject to any foreign power, . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

11. That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void.

16 Stat. 144.

Section 18 of the 1870 Act also reenacted the 1866 Act, and declared that § 16 "shall be enforced according to the provisions of said act." Ibid.

12. Cong.Globe, 39th Cong., 1st Sess., 129 (1866).

13. Discussion of the Black Codes occupied a central place in the congressional debates leading to enactment of the 1866 Act. See id. at 588-589 (remarks of Rep. Donnelly); 602 (Sen. Lane); 603 (Sen. Wilson); 1123-1124 (Rep. Cook); 1118-1119 (Rep. Wilson); 1151-1152, 1153 (Rep. Thayer); 1160 (Rep. Windom); 1785 (Sen. Stewart); 1833-1835 (Rep. Lawrence); 1838-1839 (Rep. Clarke). The Codes are described in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 29-44 (1871).

14. See, e.g., Cong.Globe, 39th Cong., 1st Sess., supra, at 1124 (Rep. Cook); 1151-1152 (Rep. Thayer); 1159 (Rep. Windom); 1785 (Sen. Stewart); 1839 (Rep. Clarke). See also Memphis v. Greene, 451 U.S. 100, 131-135 (1981) (WHITE, J., concurring in judgment).

15. We attach significance to the fact that, throughout much of the congressional debates, S.B. 61, which became the 1866 Act, contained an opening declaration that

there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.

See Cong.Globe, 39th Cong., 1st Sess., 474 (1866). This passage had occasioned controversy in both the Senate and the House because of the breadth of the phrase "civil rights and immunities." After the Senate had passed the bill, and as debates in the House were drawing to a close, the bill’s floor manager, Representative Wilson, introduced an amendment proposed by the House Judiciary Committee, of which he was also the Chairman. That amendment deleted the language quoted above and left the bill as it would read when ultimately enacted. Seen. 10, supra. Representative Wilson explained that the broad language of the original bill could have been interpreted to encompass the right of suffrage and other political rights.

To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section.

Cong.Globe, 39th Cong., 1st Sess., supra, at 1367. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 292, n. 22 (1976). The deleted language, emphasized above, strongly suggests that Congress was primarily concerned with intentional discrimination. That the passage was removed in an effort to narrow the scope of the legislation sharply undercuts the view that the 1866 Act reflects broader concerns.

16. See, e.g., Cong.Globe, 39th Cong., 1st Sess., supra, at 1294 (Rep. Wilson); id. at 2465 (Rep. Thayer).

17. It is true that § 1981, because it is derived in part from the 1866 Act, has roots in the Thirteenth as well as the Fourteenth Amendment. Indeed, we relied on that heritage in holding that Congress could constitutionally enact § 1982, which is also traceable to the 1866 Act, without limiting its reach to "state action." See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968). As we have already intimated, however, the fact that Congress acted in the shadow of the Thirteenth Amendment does not demonstrate that Congress sought to eradicate more than purposeful discrimination when it passed the 1866 Act. For example, Congress also enacted 42 U.S.C. § 1985(3) (1976 ed., Supp. IV) in part to implement the commands of the Thirteenth Amendment. See Griffin v. Breckenridge, 403 U.S. 88, 104-105 (1971). While holding that § 1985(3) does not require state action but also reaches private conspiracies, we have emphasized that a violation of the statute requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action." Id. at 102.

We need not decide whether the Thirteenth Amendment itself reaches practices with a disproportionate effect as well as those motivated by discriminatory purpose, or indeed whether it accomplished anything more than the abolition of slavery. See Memphis v. Greene, 451 U.S. at 125-126. We conclude only that the existence of that Amendment, and the fact that it authorized Congress to enact legislation abolishing the "badges and incidents of slavery," Civil Rights Cases, 109 U.S. 3, 20 (1883), do not evidence congressional intent to reach disparate effects in enacting 1981.

18. In this case, the associations were held liable because they negotiated an agreement, fair on its face, which was later implemented by another party in a manner that was not only discriminatory but in violation of the agreement itself and in a manner of which the associations were neither aware nor had reason to be aware. Since the associations’ only role was as agent for employers whose hiring would actually be governed by the agreement, the District Court’s theory presumably would also permit the imposition of liability on the attorneys who actually conducted the contract negotiations. We are unaware of any authority supporting such an extended application of respondeat superior.

19. According to respondents, the District Court’s conclusion that petitioners retained the power to control the hiring hall was a finding of fact that cannot be set aside unless clearly erroneous. We disagree. The District Court found that petitioners had the "power to oppose" the Union, a conclusion we do not question. Whether the power to oppose the Union is equivalent to a right of control sufficient to invoke the doctrine of respondeat superior is, however, a legal question to which we must devote our independent judgment.

20. The court relied on Restatement § 214:

A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.

21. Respondents also contend that petitioners can be held liable on the theory that the hiring hall was a "joint enterprise" involving petitioners as well as the Union. They point to language in the District Court’s opinion holding that "the union hiring hall was the agent for two principals -- the union and the contractors, with their respective associations." 469 F.Supp. at 411. Even this theory, however, requires, among other things, the existence of a mutual right of control as between the members of the enterprise. See Restatement § 491; 2 Harper & James § 26.13, p. 1414. For reasons we have already stated, there is no record basis for finding that petitioners had a right to control Local 542 in its administration of the hiring hall. We also doubt the validity of the assumption that the hiring hall is a separate entity, except perhaps as a physical structure. The District Court did not find, and respondents do not assert, that the hiring hall has a separate juridical existence. Indeed, in discussing the operation of the hiring hall, the District Court made clear that it was imposing liability on the basis of the Union’s conduct. As used in the court’s opinion, the phrase "hiring hall" appears to be no more than a shorthand reference for the referral process administered on a day-to-day basis by the Union.

22. Petitioners have raised several objections to the District Court’s certification of a defendant class. In light of our disposition, however, we find it unnecessary to reach these issues. It is evident from the District Court’s opinion that certification of the defendant class was premised on theories of liability that made individualized questions irrelevant. Seen. 5, supra. We have now rejected those theories, and we assume that the District Court will reconsider the issue of class certification in the event of a new trial to determine liability.

Petitioners have also questioned the standing of respondent Commonwealth of Pennsylvania to act either on its own behalf or as parens patriae in this litigation. We need not reach this issue either. Petitioners have not challenged the standing of the other plaintiffs and, therefore, even if Pennsylvania lacks standing, the District Court possessed Art. III jurisdiction to entertain those common issues presented by all plaintiffs. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160 (1981); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264, n. 9 (1977). Petitioners note that Pennsylvania has sought attorney’s fees in its own right, but our judgment has removed the basis for such an award against petitioners until such time as Pennsylvania can again assert status as a prevailing party. Until Pennsylvania obtains relief different from that sought by plaintiffs whose standing has not been questioned, we decline to address the Commonwealth’s standing.


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Chicago: Rehnquist, "Rehnquist, J., Lead Opinion," General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982) in 458 U.S. 375 458 U.S. 379–458 U.S. 395. Original Sources, accessed August 21, 2019,

MLA: Rehnquist. "Rehnquist, J., Lead Opinion." General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982), in 458 U.S. 375, pp. 458 U.S. 379–458 U.S. 395. Original Sources. 21 Aug. 2019.

Harvard: Rehnquist, 'Rehnquist, J., Lead Opinion' in General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982). cited in 1982, 458 U.S. 375, pp.458 U.S. 379–458 U.S. 395. Original Sources, retrieved 21 August 2019, from