# United States v. City of Chicago > Court of Appeals for the Seventh Circuit · November 2, 1981 · 663 F.2d 1354 URL: https://www.frixlaw.com/law-library/cases/8914255 ## Case - **Full name:** UNITED STATES of America v. CITY OF CHICAGO v. FRATERNAL ORDER OF POLICE, etc., Intervening Defendants-Appellants UNITED STATES of America v. CITY OF CHICAGO v. Robert W. SUESS, Intervening Defendants-Appellants UNITED STATES of America v. CITY OF CHICAGO v. FRATERNAL ORDER OF POLICE, etc., Intervening - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** November 2, 1981 - **Citations:** 663 F.2d 1354; 27 Fair Empl. Prac. Cas. (BNA) 177; 27 Empl. Prac. Dec. (CCH) 32,253; 1981 U.S. App. LEXIS 16417 - **Precedential status:** Published - **Opinion:** Concurring in part by Cudahy - **Judges:** Bauer, Cudahy, Cummings, Fairchild, Pell, Sprecher, Wood - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8914255 ## How later opinions describe it (automated extraction) - noting that “numerous cases have mechanically employed the Swift ‘grievous wrong’ test, thereby suggesting that hardship to the defendant is the sole touchstone for modification of an injunction” ## Opinion text CUDAHY, Circuit Judge, concurring in part and dissenting in part: I fully agree that promotion to police sergeant in rank order from the presumptively discriminatory 1979 list would be unjustified. But, unlike the majority, I believe the district court should have granted the joint motion of the United States and the City of Chicago to modify the 1976 decree with respect to the quota for promotion of minority male police officers in the light of changed conditions. 1 Quotas are quite extraordinary measures — not to be applied in ways not wholly and inescapably justified by present conditions. The simple fact is that the mandatory 60-40 quota for hiring of police officers has been abandoned. In 1976 the district court approved a nondiscriminatory examination for the hiring of police officers. United States v. City of Chicago, 420 F.Supp. 733, 737 (N.D.Ill.1976). The 1975 test resulted in a roster of qualified candidates that was 25.8% minority. The police officer force is now about 21% black and Spanish surnamed. Current hiring based on the 1975 police officer’s examination *1370 cannot raise this percentage above 25%. At the same time, the percentage of minority sergeants (aided by the 60-40 promotion ratio) has also reached 21%. This condition of parity is entirely different from the circumstances prevailing in 1976 when the 60-40 sergeant promotional quota was set. In light of these changed conditions, the United States and the City of Chicago were well advised in moving to modify the quota for minority male promotions to 25%. A reasonable and proper objective for minority sergeant promotions, as indicated by Judge Marshall in the memorandum decision imposing a promotional quota, United States v. City of Chicago, 411 F.Supp. 218, 243 (N.D.Ill.1976), 2 should be to reach parity with the officer force. It may well be, as the majority points out, that the composition of the police force as a whole should, in the long run, match that of the City’s work force. See United States v. City of Chicago, 411 F.Supp. 218, 249 (N.D.Ill.1976). But, at present, the police rank, and file are being hired under a nondiseriminatory examination with the approval of the district court and with recourse to no quota at all at a rate below 25%. 3 There is no basis in law or policy — or simple equity — for a promotion quota far in excess of that percentage. Quotas are remedies of last resort-fraught with difficulty and the potential of unfairness to innocent individuals. We do no service to their (sometimes inescapable) use when we apply them irrationally and arbitrarily. The majority suggests that an adjustment of the quota is an “implicit assertion that having a greater percentage of minority sergeants than officers inflicts a wrong or hardship on the police force or the City of Chicago as a whole.” 4 I make no such assertion — explicit or implicit — I merely suggest that any quota for promotion not firmly anchored in the most relevant facts (here the racial and ethnic composition of the rank and file) generates an odor of illegitimacy and unfairness which could eventually poison the crucial work of affirmative action in achieving racial justice. Therefore, I respectfully dissent to the extent indicated. . I agree with the majority, majority opinion at 1115, that Judge Marshall has acted within his discretion in rejecting the proposed 10% promotional quota for women although some other such quota may be quite appropriate. . The actual order entered by the district court contains the following language: 9. In order to remedy the present effects of the Chicago defendants’ past discriminatory practices and procedures for promotion to sergeant ... (a) the Chicago defendants shall adopt and seek to achieve a goal of promoting [minorities] so as to have and maintain a sergeant mix reasonably representative of the patrol force . . . . ” United States v. City of Chicago, 411 F.Supp. at 250 . . The current non-discriminatory officers’ examination can be expected to result in the hiring of minority police officers at a rate close to their application rate. This application rate shows no signs at the present times of rising to the 40% level. Minority candidates represented only 33% of those taking the 1971 examination. In 1975, minority candidates represented 28.6% of the applicant pool. Minority groups are thus applying to the police force at rates considerably below their representation in the city’s work force, the source of the 40% quota, due to what might quite plausibly be non-discriminatory reasons. This casts even greater doubt on the propriety of a 60-40 sergeant’s quota because it is not now foreseeable when minority representation on the force may reach 40%. . There is some difficulty in justifying a 40% promotional quota when only 26% of those who took the sergeant’s examination were minority candidates. Majority opinion at n.3. Indeed, if the promotional test produced such a disparity (40% as against 26%), it might be suspect as being unduly favorable to minority groups. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914255. Public record. Not legal advice.