dissenting:

I respectfully dissent.

Discrimination in employment based upon race, creed or color is a practice inconsistent with the views and aspirations of nearly all Americans and clearly repugnant to the principles upon which our society is built. But even in rooting out such an evil practice, we are bound by certain procedural and jurisdictional limitations which may serve to protect the rights of others.

I think it is clear from the record that the plaintiffs’ challenges to two of the three allegedly illegal employment practices are barred by such a jurisdictional limitation. The majority concedes that the named plaintiffs have no standing to attack the defendants’ pre-1971 hiring procedures. I agree. I believe it equally plain that they lack standing to challenge the height limitation.

As to the remedy, I conclude that while the plaintiffs may well have standing to challenge the post-1971 hiring procedures, there is a critical issue as to whether the imposition of minority hiring quotas is now warranted given the limited scope of this issue and the circumstances under which the defendants’ objectionable conduct occurred. Because the district 1 court imposed quotas based on conduct which in large part has been rejected by the majority as a basis for remedial action, the district judge may well now believe that mandatory quotas are no longer appropriate. Because the question should be resolved in the first instance by the trial judge, I would reverse and remand for reconsideration of the appropriate remedy in light of the limited standing of the plaintiffs and the nature of the defendants’ conduct within the new, limited time frame adopted by the majority in this case.

I. The Height Limitation

As an initial matter, it is clear to me that the issue of the 5'7" height limitation was never properly before the district court. The issue comes to us by a curious route. The plaintiffs phrase their request for relief as follows:

Since the plaintiffs do not contest the legality of the height limitation, I do not see how the district judge erred in taking the height limitation into account in fashioning the remedy.

But even assuming the height limitation is properly at issue, the parties before us do not have standing to pursue it. None oT the named plaintiffs is alleged to be shorter than 5'7". To the contrary, it has been stipulated that all of the named plaintiffs are present employees or presently on an eligibility list. Since one of the requirements is a minimum height of 5'7", each of them must be at least that tall. Consequently, none of them have suffered an injury-in-fact from the alleged discriminatory practice. In addition, since the class was certified as “all present and future Mexican-American applicants,” some of whom will surely be less than 5'7" tall, the named plaintiffs cannot properly represent them because their interests are potentially antagonistic. Fed.R.Civ.P. 23(a)(3), (4). Indeed, applicants 5'7" or taller have an interest in limiting the number of their competitors by retaining the height requirement. This may be the reason why the plaintiffs did not ask that the height limitation be enjoined but merely now seek a larger hiring quota for Mexican-Americans in spite of it. These facts amply demonstrate the need for and the protection built into standing requirements. Although this lack of standing is obvious, it is not even discussed by the majority.

II. The Pre-1971 Examination Procedures

The villain of the pre-1971 examination procedures was a discriminatory written test used as a ranking device. All hiring was done from an eligibility list which was the final product of an examination process. The process began with the written test and a physical agility test and the top scorers were then selected for oral interviews. A total score was given each applicant, with the discriminatory written test having a 35 percent weighted value. The highest ranking candidates were certified for placement on the eligibility list from which vacancies were filled. When the list was exhausted, which usually happened in about two years, a new examination process would begin in order to produce a new eligibility list.

The district court held that the plaintiffs made out a prima facie case of employment discrimination by proving that at the time the complaint was filed in 1973, only 3.3 percent of the firemen employed by the defendants were black or Mexican-American despite the fact that those minorities accounted for approximately 29.1 percent of the population of Los Angeles County. 1 These employment statistics are necessarily the result of the defendants’ pre-1971 hiring practices since no firemen were hired thereafter until the complaint was filed. But the majority admits that the plaintiffs lacked standing to challenge these practices. Consequently, the pre-1971 practices were entitled to only a narrowly restricted role in the fashioning of the remedy in this case, as explained in part III. C. below.

III. The Post-1971 Examination Procedures

A. The Facts

Prior to accepting applications for a new examination procedure in 1971, the entire procedure was changed. Since the named plaintiffs’ applications were processed under these new procedures, they clearly have standing to litigate their legality. Given the limited scope of the claim, however, I *1346 question the appropriateness of the sweeping injunctive relief granted.

The new procedures were to be as follows. Written tests were to be eliminated as a ranking device, but because of the large number of applicants (3500) and the relatively few job openings (33), some method had to be adopted to limit the number of applicants interviewed. Thus a new written test was designed in an attempt to eliminate cultural bias. The test was to be given and graded on a pass-fail basis for the sole purpose of screening out illiterates. Five hundred of the passing applicants were to be selected at random for oral interviews. This method eliminated the written test as a ranking device and gave every passing applicant an equal opportunity to be chosen for an oral interview. Ninety-seven percent of the applicants passed the written test; 1,885 were white, 170 black and 283 Mexican-American. The passing applicants were to be ranked solely on the basis of the results of the physical agility test and the oral interviews.

The new written test was administered in 1972, but before the random selection could be made, a lawsuit was filed in state court against the county, charging that the random selection process violated provisions of the county charter and civil service regulations requiring that selection for oral interviews be made on merit. The county was enjoined from using this method pending trial on the merits. As a result, the examination process was halted for over two years and no interviews or physical tests were given and no eligibility list was certified.

As vacancies increased, the county fire department urged that the applicants who by this time had been waiting for almost 18 months, be interviewed and an eligibility list certified. In desperation, the county Department of Personnel proposed to interview those applicants who had received the top 544 scores on the 1972 written test. Of this number, 492 were white, 10 black and 33 Mexican-American. These applicants were not to be ranked on the basis of the test results, however, and the interviews were not intended to eliminate the remaining applicants from consideration. The purpose was solely to expedite the hiring of sufficient firemen to meet the immediate, urgent requirements of the fire department.

The plaintiffs herein objected to this proposal. Upon learning of the complaint about to be filed in this action, the Director of Personnel abandoned the plan and implemented a new procedure whereby all of the passing applicants would be interviewed. The interviews commenced on January 20, 1973.

The plaintiffs filed this civil rights action naming as defendants the County of Los Angeles, the Board of Supervisors of the county and the Civil Service Commission. The complaint alleged racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983; it was later amended to invoke Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. as well. The defendants completed interviewing all of the applicants by the end of March 1973 and certified an eligibility list. Of the top 315 applicants on this list, 210 were white, 39 black, 59 Mexican-American and 7 of other races (a total of 33.5 per cent “minorities”). It was conceded by the plaintiffs that this examination and ranking procedure did not have a discriminatory impact on blacks and Mexican-Americans.

At the conclusion of the trial, the district court specifically found that the defendants had not interfered with affirmative action efforts designed to increase black and Mexican-American participation rates and that, to the contrary, several officials had engaged in efforts designed to increase minority representation in the fire department. The court further found that neither the defendants nor their officials had engaged in employment practices with a willful or conscious purpose of excluding blacks and Mexican-Americans from employment.

The court concluded, however, that the defendants had engaged in the discriminatory employment practice of utilizing as a selection device non-validated written tests that had a disproportionate detrimental im *1347 pact on blacks and Mexican-Americans. This evidently included the defendants’ short-lived intent to interview only the top 544 scorers on the 1972 examination. This, of course, is the only examination procedure of which the plaintiffs may complain since they lack standing to challenge all previous examinations.

B. Liability for the Attempted Use of the 1972 Examination

In deciding that the attempted use of the Í972 written examination was illegal, the majority relies almost exclusively upon 42 U.S.C. § 1981 . Only in a footnote is it mentioned that this same conduct also constitutes a Title VII violation. 2 I agree with the majority that under United States v. W. T. Grant Co., 345 U.S. 629, 632-33 , 73 S.Ct. 894 , 97 L.Ed. 1303 (1953), the defendants’ decision, prompted by the commencement of this lawsuit, not to use improperly the 1972 examination as a selection device, does not shield them from liability. But I would base that liability on Title VII, not section 1981. The majority’s extensive discussion of section 1981 is not only incorrect, but in this case it is wholly unnecessary.

The district judge found as a matter of fact that “neither the defendants nor their officials had engaged in employment practices with a willful or conscious purpose of excluding blacks and Mexican-Americans from employment.” Since a prima facie case under Title VII clearly does not require proof of an improper purpose when a discriminatory impact is alleged, Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971), this finding does not put defendants beyond the reach of Title VII.

The majority’s decision that section 1981 similarly requires no proof of intentional discrimination is both unnecessary and unfortunate. The potential scope of section 1981 is exceptionally broad, going far beyond the Title VII realm of employment, and conceivably reaching virtually all private contractual arrangements. See Runyon v. McCrary, 427 U.S. 160, 168-71 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976). Since the relief available under Title VII is extensive enough to include the remedy approved by the majority in this case, 3 the wiser course would be to base the finding of liability on that statute and to wait for a more appropriate opportunity to consider the reaches of section 1981. Since the majority does choose to rely upon section 1981, however, I wish to make it clear that I cannot accept its easy conclusion that a prima facie case under that statute does not require proof of discriminatory intent.

The majority asserts that the Supreme Court’s opinion in Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), does not address the question of whether cases brought under section 1981— like those brought directly under the Fourteenth Amendment — always require proof of discriminatory intent, or whether — as.in Title VII cases — proof of discriminatory impact alone may be sufficient. 4 I agree. But Washington v. Davis serves at least to *1348 remind us that improper intent may be an essential ingredient in some discrimination cases where the lower courts have heretofore thought otherwise. When it is necessary to decide such cases on' the basis of authority other than Title VII or the Fourteenth Amendment, therefore, a most careful reconsideration of the role of discriminatory intent is in order.

The majority reasons that because both Title VII and section 1981 apply to employment discrimination cases, because the remedies available under these two statutes are “parallel or overlapping,” Alexander v. Gardner-Denver Co., 415 U.S. 36 , 47 & n.7, 94 S.Ct. 1011 , 39 L.Ed.2d 147 (1974), and because Washington v. Davis does not decide that intentional discrimination is required under section 1981, “there remains no operational distinction in this context between liability based upon Title VII and section 1981.” This analysis is inadequate. 5

That both statutes can apply to the same facts and that both may afford similar remedies is beside the point. The same can be said of Title VII and the Fourteenth Amendment, yet, after Washington v. Davis, there remains an essential “operational distinction” between them. The proper inquiry is whether the legislative history of section 1981 indicates that it should track the Fourteenth Amendment’s standards of proof rather than those of Title VIL I believe that the history of section 1981 strongly suggests precisely that.

Because section 1981 is peculiarly linked to the Fourteenth Amendment, the stan *1349 dards pertaining to that amendment should also control section 1981. Of course, Title VII also depends in part upon the Fourteenth Amendment for its validity. 6 Title VII, however, was intentionally structured to rest upon as many other constitutional bases as possible. 7 It is otherwise with section 1981. Section 1981 originated in two earlier statutes: section 1 of the Civil Rights Act of 1866, 14 Stat. 27 , and section 16 of the Voting Rights Act of 1870, 16 Stat. 144 . Runyon v. McCrary, supra, 427 U.S. at 168 -70 n.8, 96 S.Ct. 2586 . The 1866 Act is generally regarded as a “Thirteenth Amendment statute,” see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422, 437-38 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968), but it has also been found to rely upon the Fourteenth Amendment. In fact, part of the motivation behind the congressional support of the Fourteenth Amendment was to eliminate doubts about the constitutionality of the 1866 Act. Id. at 436 , 88 S.Ct. 2186 . The second root of section 1981, section 16 of the Voting Rights Act of 1870, is clearly a “Fourteenth Amendment statute,” Runyon v. McCrary, supra, 427 U.S. at 195-202 , 96 S.Ct. 2586 (White, J. dissenting); its legislative history demonstrates that its precise purpose was to implement the congressional powers created by that Amendment. Id.

The significance of this is that section 1981 enjoys a unique historical and conceptual relationship to the Fourteenth Amendment which is not shared by Title VII. 8 Consequently, it is quite proper to assume, absent a contrary holding by the Supreme Court, that the standards for establishing a prima facie case of discrimination under section 1981 and the Equal Protection Clause of the Fourteenth Amendment should be the same: there must be proof of discriminatory intent.

Other factors reinforce this conclusion. Interpreting section 1981 to require discriminatory intent is consistent with the Su *1350 preme Court’s statement in Jones v. Alfred H. Mayer Co., supra, that Congress intended section 1 of the Civil Rights Act of 1866 — the source of what is now section 1982 as well as one source of section 1981— “to prohibit all racially motivated deprivations of the rights enumerated in the statute .. . Id. 392 U.S. at 426 , 88 S.Ct. at 2196 (emphasis partly added); That racial motivation was originally meant by Congress to be a requirement in actions under the 1866 Act is further suggested by section 2 of the Act which imposes criminal penalties upon anyone who, under color of law, deprives another of the rights protected by section 1 “by reason of his color or race.” 14 Stat. 27 . 9

In addition, there are practical reasons for requiring proof of discriminatory intent in section 1981 cases, but not in Title VII cases. Title VII is part of a complex statute; together with its accompanying administrative regulations it identifies with particularity the conduct it proscribes and imposes a course of administrative remedies that must be exhausted before the jurisdiction of the courts may be invoked. 42 U.S.C. § 2000e-5; 29 C.F.R. §§ 1601.1 et seq. Because these barriers tend to eliminate claims that are frivolous or suffering from obvious legal or factual defects, it is not unreasonable to provide that a prima facie case may be established without a showing of discriminatory intent.

Section 1981 is a very different statute. Its language is both brief and sweeping in scope, and it does not have the screening mechanism provided by a requirement of the exhaustion of administrative remedies. The section 1981 screening mechanism, as in actions proceeding directly under the Fourteenth Amendment, is the required demonstration of discriminatory intent.

Indeed, because section 1981 can probably be invoked in a great many cases brought directly under the Fourteenth Amendment, the consequence of judicially creating a less demanding standard for section 1981 than for the Fourteenth Amendment might often be to circumvent the holding in Washington v. Davis altogether. In the vast array of cases such as the one before us now and Washington v. Davis itself, where Title VII does not apply but Section 1981 and the Fourteenth Amendment do, one could easily avoid the intent requirement of the Amendment by simply pleading section 1981. 10 See Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa. 1977).

Finally, an observation made by the Supreme Court in Washington v. Davis is relevant here. The Court was concerned about the problems that might arise if the Fourteenth Amendment could be invoked upon a mere showing of disproportionate racial impact:

*1351 426 U.S. at 248 , 96 S.Ct. at 2051 (footnote omitted) Section 1981, extending as it does far beyond “the field of public employment” to the expansive realm of both public and private contractual relationships, might well precipitate many of these same consequences if proof of discriminatory intent is not required.

For these reasons I would base defendants’ liability for the use of the 1972 examination on Title VII alone. The majority’s reliance on section 1981 is ill-advised because it is both unnecessary and incorrect.

C. The Scope of the Remedy

Even if the plaintiffs have established a Title VII violation with respect to the defendants’ use of the 1972 written test results, however, that violation does not necessarily justify the imposition of minority hiring quotas on the defendants. The use of quotas must be carefully weighed. As the Supreme Court stated in Griggs v. Duke Power Co., supra, 401 U.S. at 430-31 , 91 S.Ct. at 853 :

In this case the trial judge ordered that 20 percent of all newly-hired firemen be black and that 20 percent be Mexican-American, compared to the respective proportions of those minorities in the population of 10.8 percent and 18.3 percent. Imposition of this hiring quota may well result in discrimination against equally or better qualified applicants solely on account of their race. Here, for example, a native American Indian, Asian-American, Hungarian-American or Polish-American may not be hired in order to provide a job for a black or Mexican-American. While quotas are sometimes necessary to correct past discrimination against certain groups, the possible prejudicial effects upon others must be weighed carefully by the district court. 11

In civil rights cases, “[a]s with any equity case, the nature of the violation determines the scope of the remedy.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 , 91 S.Ct. 1267, 1276 , 28 L.Ed.2d 554 (1971). Accord, Milliken v. Bradley, 418 U.S. 717, 744 , 94 S.Ct. 3112 , 41 L.Ed.2d 1069 (1974). In fashioning remedies under Title VII, it is therefore essential to identify accurately the nature of the violations that have occurred. Here, the district judge believed he had properly found the defendants liable not only for their thwarted attempt to use the 1972 exam results in a discriminatory manner, but also for their use in earlier years of the examinations which actually produced the racial imbalance in the fire department’s work force. It is obvious that the quotas were imposed to remedy that racial imbalance, 12 and thus that in *1352 devising his hiring order, the district judge relied heavily upon his conclusion that the defendants were liable for their use of the pre-1972 examinations. For the reasons that follow, this reliance was misplaced.

The majority concedes .that none of the defendants’ examination procedures except the aborted attempt to use the 1972 exam results in a discriminatory manner were properly before the district court. I agree. The complete absence of standing on the part of any plaintiff to contest the earlier procedures makes them legally indistinguishable from the act described in United Air Lines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977), which could have been, but was not, properly brought before a federal court:

Id. at 558 , 97 S.Ct. at 1889 . 13 Therefore, the district court was not entitled to treat the pre-1972 examination procedures as substantive violations to be corrected, but only as “relevant background” to the narrow issues properly before him.

Moreover, even if the pre-1972 examinations could be properly considered by the district judge as background, their relationship to the defendants’ Title VII violation militates against taking them heavily into account. The remedial obligation of the district court was first and foremost to grant relief for the violations of law properly found to exist. It is true that judicial remedies sometimes attempt to correct past discrimination as well, Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975), but this is because present violations often “operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., supra, 401 U.S. at 430 , 96 S.Ct. at 853.

The Title VII violation in this case had no such effect. Both the majority and I agree that the defendants are liable for nothing more than devising a plan — never carried out — which would have had a discriminatory impact. The plaintiffs concede in their brief that in fact “the post-March 1972 discrimination . . . had no ‘effects.’ ” Because the racial imbalance of which the plaintiffs complain was neither aggravated nor perpetuated by the defendants’ actionable discrimination, the liability of defendants for that limited threat of discrimination does not create a proper platform from which to reach back to correct the racial imbalance. 14

Even under the majority’s view of this case, a remand is essential. Had the district judge initially found the defendants liable for as little as this court does today, I cannot believe he would have imposed the drastic remedy which the majority now sustains. It is conceded that the only objectionable “use” of a written examination by the defendants was their intent to narrow the field of applicants to the top 544 scorers *1353 on the 1972 exam. This plan was made only after an apparently nondiscriminatory system (interviewing randomly selected applicants who passed the 1972 exam) was enjoined in a state court proceeding. It came when the defendants were under the great stress of needing to fill mounting vacancies and at a time when they were affirmatively working to end prior discriminatory practices.

In light of these facts, I would reverse and remand to the district court for reconsideration of the appropriateness of quotas in this case. 15 It is clear to me that the court can fashion an effective order prohibiting any discriminatory use of the 1972 examination directly without imposing quotas.

. The district court found that 10.8 percent of the population of Los Angeles County was black and 18.3 percent Mexican-American.

. Even if they had had proper standing, the plaintiffs could not have attacked defendants’ pre-1972 procedures under Title VII since that statute first became applicable to state public employers on March 24, 1972. Since a stipulation states that the defendants abandoned their plan to make a discriminatory use of the 1972 exam on January 8, 1972, Title VII is arguably unavailable to the plaintiffs as a basis of liability in this case. In that event, and in light of the subsequent analysis in the text, the defendants would be absolved of all liability whatsoever. It appears, however, that the stipulated date may be in error, and in addition it seems to me that a persuasive argument can be made that the threat to use the 1972 examination in a discriminatory manner can fairly be construed as continuing after March 24, 1972, thus providing a legitimate basis for some relief to the plaintiffs.

. “[T]he remedies available to the individual under Title VII are co-extensive with the individual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981 . . .” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459 , 95 S.Ct. 1716, 1719 , 44 L.Ed.2d 295 (1975), quoting H.R.Rep. No. 92-238, 92nd Cong., 1st Sess. 19 (1971).

. As the majority notes in footnote 7 of its opinion, few courts have had occasion to construe section 1981 in light of Washington v. Davis. Of those which have dealt with the issue explicitly, most have done so without analysis, e. g., Kinsey v. First Regional Securi *1348 ties, Inc., 557 F.2d 830 , 838 n.22 (D.C.Cir.1977), or under the assumption, rejected by us today, that Washington v. Davis did decide the section 1981 question. E. g., League of United Latin Am. Citizens v. City of Santa Ana, 13 FEP Cases 1019-20 (C.D.Cal.1976). The only post-Washington v. Davis cases I have located that shed any light on the problem support the position taken in this dissent. Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa.1977); Johnson v. Hoffman, 424 F.Supp. 490, 493-94 (E.D.Mo. 1977).

Significantly, the Supreme Court vacated and remanded the Tenth Circuit’s decision in Chicano Police Officer’s Ass’n v. Stover, 526 F.2d 431 (10th Cir. 1975), cert. granted, vacated, and remanded, 426 U.S. 944 , 96 S.Ct. 3161 , 49 L.Ed.2d 1181 (1976), in which it was held that “the measure of a claim under the Civil Rights Act [/. e., section 1981 ef seq.] is in essence that applied in a suit under Title VII of the Civil Rights Act of 1964.” 526 F.2d at 438 . Stover did not involve Title VII, but turned on sections 1981, 1983, and 1985, suggesting that the Supreme Court may well believe that constitutional standards apply in section 1981 cases. This is the interpretation placed on the Supreme Court’s action by the Tenth Circuit panel that originally decided Stover , as evidenced by their treatment of the case on remand. Chicano Police Officer’s Ass’n v. Stover, 552 F.2d 918, 920 (10th Cir. 1977).

. The majority’s analysis is not helped by the string of citations offered in support of the propositions that section 1981 has been applied “to bar discrimination in employment,” and that Title VII principles are a “benchmark” in discrimination cases. The burden of these cases is that section 1981 provides a cause of action for private acts of employment discrimination and that it was not implicitly repealed by Title VII. I do not disagree. If any of these decisions arguably imply that section 1981 and Title VII are equivalent with respect to the required elements of a prima facie case, it should be noted that all but two of them were rendered prior to Washington v. Davis, and of those, none offers any analysis of the critical issue of discriminatory intent which the opinion in that case revived as a major factor in discrimination law. The two post- Washington v. Davis decisions, Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977) and McCormick v. Attala County Bd. of Educ., 541 F.2d 1094 (5th Cir. 1976), make no reference to Washington v. Davis or to the issues it discussed. Thus, none of these cases contributes much to the resolution of the issue at hand.

Actually, one of the Fifth Circuit cases relied upon by the majority, Wade v. Mississippi Coop. Extension Serv., 528 F.2d 508 (5th Cir. 1976), undermines the majority’s position. Wade specifically rejected the lower court’s application to section 1981 of “the standard of proof established by the regulations implementing Title VII” and held that “[ujnder the law of this circuit, . . . public employment tests are to be judged under a constitutional standard in suits brought under 42 U.S.C.A. §§ 1981 , 1983.” Id. at 518 (emphasis added). The court in Wade, although it had the foresight to recognize that Washington v. Davis, then pending before the Supreme Court, could affect its understanding of the issues in the case before it, id. at 518 n.7, unavoidably lacked the wisdom later supplied by Washington v. Davis that purposeful discrimination is one element of the constitutional standard. But of interest here is the Fifth Circuit’s recognition that section 1981 tracks the Constitution, not Title VII, in its standards of proof.

. E. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 447-48 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976) (1972 amendments to Title VII rely upon Fourteenth Amendment). With respect to section 1981, see subsequent text.

. In his June 19, 1963 message to Congress, President John Kennedy submitted a proposed bill which developed into the Civil Rights Act of 1964 and which contained the embryo of what is now Title VII. The proposed bill was expressly made to rely upon

H.R.Doc. No. 124, 88th Cong., 1st Sess. 14 (1963). That the present version of Title VII rests on more than the Civil Rights Amendments may also be seen in the deliberate inclusion of interstate commerce concepts in Title VII’s definitions, signifying a reliance upon the Commerce Clause. 42 U.S.C. § 2000e(b)-(e), (g) & (h). Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 249-50 , 85 S.Ct. 348 , 13 L.Ed.2d 258 (1964) (Title II of Civil Rights Act of 1964 valid under the Commerce Clause).

Several courts of appeals, including our own, have found that Title VII extends beyond the reach of the Equal Protection Clause. E. g., Berg v. Richmond Unified School Dist., 528 F.2d 1208 , 1212 n.8 (9th Cir. 1975), cert. granted, 429 U.S. 1071 , 97 S.Ct. 806 , 50 L.Ed.2d 788 (1977); Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir. 1975), cert. granted, 429 U.S. 1071 , 97 S.Ct. 806 , 50 L.Ed.2d 788 (1977); Communications Workers v. American Tel. & Tel. Co., 513 F.2d 1024 , 1031 (2d Cir. 1975), cert. granted, vacated and remanded, 429 U.S. 1033 , 97 S.Ct. 724 , 50 L.Ed.2d 744 (1977). Although the holdings in these cases that the exclusion of pregnant women from certain insurance and other employment benefits have been undermined or put in doubt by General Elec. Co. v. Gilbert, 429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976), the Gilbert decision itself does not question the idea that Title VII invokes congressional powers beyond those derived from the Fourteenth Amendment. Rather, Gilbert simply holds that the exclusion of pregnancy benefits from an employer’s disability insurance plan does not constitute a sex-based discrimination capable of invoking either Title VII or the Fourteenth Amendment. Id. at 136 , 97 S.Ct. 401 .

. As Runyon v. McCrary, 427 U.S. 160 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976), makes clear, section 1981 is also very closely tied to the Thirteenth Amendment. Washington v. Davis did not decide whether discriminatory intent is required in Thirteenth Amendment cases. I think that it is, but any uncertainty in this assumption merely underscores that the majority’s decision to delve into section 1981 is unwise.

. In addition, the original draft of the 1866 Act, as introduced by Senator Trumball of Illinois, prohibited “discrimination in civil rights or immunities . . . on account of race, color, or previous condition of slavery . . . McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 , 96 S.Ct. 2574, 2582 , 49 L.Ed.2d 493 (1976) (emphasis added).

. In Washington v. Davis, the plaintiffs did plead section 1981. The defendants here argue that in that decision section 1981 was implicitly held to require a showing of discriminatory intent. The plaintiffs argue that the opposite implication exists. Both sides have a certain logical basis, but a close reading of the Supreme Court’s opinion convinces me, as it does the majority, that Washington v. Davis simply does not consider the standards governing section 1981.

. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976) (section 1981 and Title VII prohibit racial discrimination in private employment against white persons as well as against nonwhites). Cf. Franks v. Bowman Transp. Co., 424 U.S. 747, 780-81 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976) (Burger, C. J., concurring and dissenting) (white employees injured by award of retroactive seniority to nonwhites may petition for equitable relief on their own behalf); Weber v. Kaiser Alum. & Chem. Corp., 415 F.Supp. 761 (E.D.La.1976) (Title VII prohibits discrimination against white employees; private employment context).

I agree, of course, that equitable relief to rectify past discrimination will often impose burdens on those innocent of any discriminatory activity. Franks v. Bowman Transp. Co., supra, 424 U.S. at 773-79 , 96 S.Ct. 1251 . But, as I explain in the subsequent text, relief appropriate to the violation in this case requires the imposition of no such burdens.

. In his conclusions of law, the district judge stated:

(Emphasis added).

. It is not only the standing issue that made it improper for the district court to rely upon the pre-1972 procedures in fashioning its remedial order, but also the fact that even a plaintiff with standing could probably not have shown them to be illegal. Since Title VII first became applicable to the defendants on March 24, 1972, liability for the defendants’ conduct previous to that date must be evaluated under section 1981. But that statute, as I explain above, appears to require proof of a discriminatory intent, and the district judge explicitly found as a matter of fact that such intent was lacking here.

. “At the threshold we observe that Title VII speaks only to the future. The only justification for a backward gaze is in determining whether a present employment practice may, in fact, perpetuate past discrimination.” EEOC v. University of M. M., 504 F.2d 1296, 1301 (10th Cir. 1974).

. It is instructive to compare with this case one from the Second Circuit in which the district court’s imposition of quotas was reversed as unwarranted. Kirkland v. New York State Dept. of Correct. Serv., 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823 , 97 S.Ct. 73 , 50 L.Ed.2d 84 (1976). The case involved a challenge to the use of a discriminatory written test as the basis for promotion under a civil service system. The plaintiffs challenged the disproportionate impact of only the most recent test and made no claim of bad faith or intentional discrimination. The district court ordered the defendants to develop a validated nondiscriminatory promotion procedure and imposed promotion quotas to cure the effects of past discrimination. The Second Circuit upheld the order to develop a nondiscriminatory procedure, but rejected the imposition of quotas. The court also noted that quotas would unnec-cessarily nullify the state constitutional provisions requiring that promotions be made from the top three officers on the eligibility list, a decision which should be left to “the people speaking through their legislators.” Id. at 429.

See also Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976) (racial quotas in public employment layoffs not designed to remedy past discrimination are not authorized under section 1981 or Title VII).