Even prior to the court holdings relating to statistics, the judiciary had startled those commentators who thought the fact that Title VII required a showing of specific "intent" to discriminate and was intended to be "prospective" (that is, to apply from July 2, 1965, the effective date of the statute, onward) limited the impact of the law. Could pre-1965 conduct be considered? If so, what relationship, if any, was it to have with contemporary employment practices which might be considered nondiscriminatory if considered without reference to the past?
The first major appeals court decision to confront this problem was Local 53 Heat and Frost Insulators v. Vogler.1 In Vogler, the Fifth Circuit held that a union's policy of nepotism, though concededly neutral and nondiscriminatory in vacuo (that is, when considered in the abstract), was unlawful if there was a showing of past discrimination leading to the exclusion of minorities. The union had contended that the district court had improperly eliminated the union policy of exclusion of workers not related by "blood or marriage," because the remedy, a quota system to correct racial imbalance, was in effect a "penalty" and was in violation of the antipreferential-treatment provisions of Title VII. The court responded to this argument:
The District Court did no more than prevent future discrimination when it prohibited a continuing exclusion of negroes through the application of an apparently neutral membership provision which was originally instituted at least in part because of racial discrimination and which served no significant trade-related purpose. While the nepotism requirement is applicable to black and white alike and is not on its face discriminatory, in a completely white union the present effect of its continued application is to forever deny to negroes and Mexican-Americans any real opportunity for membership.2
The court, while avoiding the issue of seniority systems and their lawfulness under Title VII, noted that they were "not analogous to the exclusion of negroes from an all white union by a system of nepotism. While the former might for a limited time operate to exclude negroes, the latter probably would do so interminably."3 The effect of nepotism -- even if actually economically justified -- was to continue in the present system the former exclusion of racial minorities, since the incumbent employees were predominately white. This continuation Vogler held to be unlawful.